BILL NUMBER: AB 3082 CHAPTERED
BILL TEXT
CHAPTER 183
FILED WITH SECRETARY OF STATE JULY 20, 2004
APPROVED BY GOVERNOR JULY 19, 2004
PASSED THE SENATE JUNE 17, 2004
PASSED THE ASSEMBLY APRIL 19, 2004
INTRODUCED BY Committee on Judiciary (Corbett (Chair), Harman (Vice
Chair), Bates, Hancock, Jackson, Laird, Lieber, Longville, Montanez,
Pacheco, and Steinberg)
MARCH 11, 2004
An act to amend Sections 511.3, 853, 2241.5, 2260, 3651, 4052,
4311, 4409, 4980.90, 7026.1, 7028, 12107.1, 13570, 17529.1, 17538.45,
17550.30, 17593, 18824, 18897.73, 22575, and 25503.4 of the Business
and Professions Code, to amend Sections 51.10, 56.26, 800.100,
1102.16, 1103, 1542, 1785.30, 1786.24, 1789.21, 1798.83, 1798.85,
1799.1b, 1812.701, 1865, 2945.3, 2982, 2985.8, and 2988.9 of, and to
amend and renumber Sections 1747.8 and 1747.9 of, the Civil Code, to
amend Sections 715.010, 995.640, 1021.8, 1563, 1822.60, and 2023 of
the Code of Civil Procedure, to amend Sections 2207, 13401.5, and
14010 of, and to amend and renumber Section 17655 of, the
Corporations Code, to amend Sections 8266.1, 8813, 8825, 17077.45,
17334, 17360, 22852, 22854, 27403, 32265, 42238.41, 44279.2, 44328,
44735, 44830.3, 47634, 48200.7, 49414.5, 49452.6, 52015, 52054,
52055.615, 52055.625, 52055.655, 52128, 60061.8, 60640, 64201,
66271.8, 67359.13, 88033, 89539.2, 94779, 94901, 94944, 94990, and
99235 of the Education Code, to amend Sections 11105, 14310, and
18541 of the Elections Code, to amend Sections 917 and 956.5 of the
Evidence Code, to amend Sections 4962 and 17600 of the Family Code,
to amend Sections 216.3, 258, 645, 690, 777.5, 867, 1753, 1807, 1908,
3804, 14401, and 50122 of the Financial Code, to amend Sections 206,
1570, 1572, 1613, 7149.2, 7361, 7362, and 12011 of the Fish and Game
Code, to amend Sections 6047.4, 6047.82, 27680, 27681, 27686, 27690,
30801, 52489, 65520, 66572, 66663, 74028, 78302, and 78690 of the
Food and Agricultural Code, to amend Sections 912.8, 1091.4, 6254,
6254.17, 7072, 8220, 8592.4, 8869.84, 8880.325, 10205.1, 12012.30,
12080.3, 12598, 13995.20, 13995.40, 13995.42, 13995.58, 13995.65,
13995.74, 13997.1, 14055.2, 18215, 19063.1, 19582.1, 19826, 20035.2,
20035.3, 20035.4, 20035.10, 20235, 22013.97, 22825.12, 25358, 29550,
30061, 31520.5, 31755, 31762, 31776.3, 50061, 53088.2, 53895.5,
54222, 63049.4, 65919, 68085.5, 68086, 69927, 71806, 71828, 77202,
and 95000 of, and to amend and renumber Sections 6215 and 20035.5 of,
the Government Code, to amend Sections 138.6, 444.20, 1255, 1367.04,
1375.7, 1569.30, 1569.70, 1596.816, 1794.04, 11758, 13108.5,
17037.5, 17921.9, 17991, 25117.4.1, 25121.3, 25160.6, 25184.1,
25201.1, 25210.6, 25360.6, 25501, 32111, 33320.8, 33492.40, 39011.5,
39614, 39661, 40500.5, 40724.6, 41514.1, 41855.6, 50517.9, 51615,
53533, 101625, 104558, 106010, 115005, 121010, 127670, 127671,
127760, and 128401 of, to amend the heading of Chapter 8 (commencing
with Section 127670) of Part 2 of Division 107 of, and to amend and
renumber Sections 35987, 35988, 35989, 35990, and 35991 of, the
Health and Safety Code, to amend Sections 881, 1063.53, 1067.08,
1104.9, 1280.7, 1776, 1861.025, 10113.2, 10133.56, 10133.8, 10178.4,
10764, 12144, 12671, 12693.55, 12975.7, 12975.8 of, and to amend and
renumber Section 10089.45 of, the Insurance Code, to amend Sections
98.2, 141, 143.2, 2140.5, 2160.1, 2190, 2190.2, 2200, 2210, 3099,
3600.1, and 7304 of, and to amend and renumber Section 4610 of, the
Labor Code, to amend Sections 186.8, 330b, 330.7, 597b, 597c, 1372,
1463.010, 6245, 11171, 11502, 12021, and 13864 of the Penal Code, to
amend Sections 858, 6242, 19403, 20114.5, and 21320 of the Probate
Code, to amend Sections 6106.5 and 10295.3 of the Public Contract
Code, to amend Sections 2755, 2802, 3305, 3324, 5079.50, 14509.3,
14552.5, 14581, 30610.3, 36725, 40000, 41732, 42330, 42463, 42475.2,
45000, 45010, 50000, and 71210 of, and to amend the headings of
Article 1 (commencing with Section 32630), Article 2 (commencing with
Section 32633), Article 3 (commencing with Section 32639), Article 4
(commencing with Section 32657), and Article 5 (commencing with
Section 32661) of Division 22.9 of, the Public Resources Code, to
amend Sections 280.5, 353.2, 372, 374, 377.2, 379.6, 396, 399.12,
1701.3, and 21670.1 of the Public Utilities Code, to amend Sections
97.313, 155.20, 3691.6, 6077, 6361.1, 9405, 17132.6, 18407, 19164,
19179, 19777, 23036, 23736.1, 46622, and 55337 of the Revenue and
Taxation Code, to amend Sections 104.7, 3114.5, 5101, 8833, 10100.2,
and 31071 of the Streets and Highways Code, to amend Sections 2610,
3305, and 10200 of the Unemployment Insurance Code, to amend Sections
2813.5, 3072, 9250.13, 9400.1, 9400.3, 9951, 11515.2, 12509, 22100,
25803, 31032.1, 34620, and 35401.7 of the Vehicle Code, to amend
Sections 1552, 13269, 13368, 13387, 13610, 13611, 13611.5, 36153,
72303, 78688, 79532, and 79561.5 of, and to amend and renumber
Section 12749.95 of the Water Code, to amend Sections 779, 1000.7,
1703, 5657, 7200.06, 10063, 11025, 11052.5, 11373, 11468.6, 14016.5,
14043.75, 14087.6, 14105.981, 14123.25, 14132.22, 14133.3, 14148.91,
14408, 15657, 15657.03, 16121.05, 16501.6, and 18358 of the Welfare
and Institutions Code, and to amend Section 1 of Chapter 68 of, and
Section 13 of Chapter 673 of, the Statutes of 2003, relating to the
maintenance of the codes.
LEGISLATIVE COUNSEL'S DIGEST
AB 3082, 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 make technical, nonsubstantive changes in various
provisions of law to effectuate the recommendations made by the
Legislative Counsel to the Legislature.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 511.3 of the Business and Professions Code is
amended to read:
511.3. (a) When a contracting agent sells, leases, or transfers a
health provider's contract to a payor, the rights and obligations
of the provider shall be governed by the underlying contract between
the health care provider and the contracting agent.
(b) For purposes of this section, the following terms shall have
the following meanings:
(1) "Contracting agent" has the meaning set forth in paragraph (2)
of subdivision (d) of Section 511.1.
(2) "Payor" has the meaning set forth in paragraph (3) of
subdivision (d) of Section 511.1.
SEC. 2. Section 853 of the Business and Professions Code is
amended to read:
853. (a) The Licensed Physicians and Dentists from Mexico Pilot
Program is hereby created. This program shall allow up to 30
licensed physicians specializing in family practice, internal
medicine, pediatrics, and obstetrics and gynecology, and up to 30
licensed dentists from Mexico to practice medicine or dentistry in
California for a period not to exceed three years. The program shall
also maintain an alternate list of program participants.
(b) The Medical Board of California shall issue three-year
nonrenewable licenses to practice medicine to licensed Mexican
physicians and the Dental Board of California shall issue three-year
nonrenewable permits to practice dentistry to licensed Mexican
dentists.
(c) Physicians from Mexico eligible to participate in this program
shall comply with the following:
(1) Be licensed, certified or recertified, and in good standing in
their medical specialty in Mexico. This certification or
recertification shall be performed, as appropriate, by the Consejo
Mexicano de Ginecologia y Obstetricia, A.C., the Consejo Mexicano de
Certificacion en Medicina Familiar, A.C., the Consejo Mexicano de
Medicina Interna, A.C., or the Consejo Mexicano de Certificacion en
Pediatria, A.C.
(2) Prior to leaving Mexico, each physician shall have completed
the following requirements:
(A) Passed the board review course with a score equivalent to that
registered by United States applicants when passing a board review
course for the United States certification examination in each of his
or her specialty areas and passed an interview examination developed
by the National Autonomous University of Mexico (UNAM) for each
specialty area. Family practitioners who shall include obstetrics
and gynecology in their practice shall also be required to have
appropriately documented, as specified by United States standards, 50
live births. Mexican obstetricians and gynecologists shall be
fellows in good standing of the American College of Obstetricians and
Gynecologists.
(B) (i) Satisfactorily completed a six-month orientation program
that addressed medical protocol, community clinic history and
operations, medical administration, hospital operations and protocol,
medical ethics, the California medical delivery system, health
maintenance organizations and managed care practices, and
pharmacology differences. This orientation program shall be approved
by the Medical Board of California to ensure that it contains the
requisite subject matter and meets appropriate California law and
medical standards where applicable.
(ii) Additionally, Mexican physicians participating in the program
shall be required to be enrolled in adult English as a Second
Language (ESL) classes that focus on both verbal and written subject
matter. Each physician participating in the program shall have
transcripts sent to the Medical Board of California from the
appropriate Mexican university showing enrollment and satisfactory
completion of these classes.
(C) Representatives from UNAM in Mexico and a medical school in
good standing or a facility conducting an approved medical residency
training program in California shall confer to develop a mutually
agreed-upon distant learning program for the six-month orientation
program required pursuant to subparagraph (B).
(3) Upon satisfactory completion of the requirements in paragraphs
(1) and (2), and after having received their three-year nonrenewable
medical license, the Mexican physicians shall be required to obtain
continuing education pursuant to Section 2190. Each physician shall
obtain an average of 25 continuing education units per year for a
total of 75 units for a full three years of program participation.
(4) Upon satisfactory completion of the requirements in paragraphs
(1) and (2), the applicant shall receive a three-year nonrenewable
license to work in nonprofit community health centers and shall also
be required to participate in a six-month externship at his or her
place of employment. This externship shall be undertaken after the
participant has received a license and is able to practice medicine.
The externship shall ensure that the participant is complying with
the established standards for quality assurance of nonprofit
community health centers and medical practices. The externship shall
be affiliated with a medical school in good standing in California.
Complaints against program participants shall follow the same
procedures contained in the Medical Practice Act (Chapter 5
(commencing with Section 2000)).
(5) After arriving in California, Mexican physicians participating
in the program shall be required to be enrolled in adult ESL classes
at institutions approved by the Bureau of Private Post Secondary and
Vocational Education or accredited by the Western Association of
Schools and Colleges. These classes shall focus on verbal and written
subject matter to assist a physician in obtaining a level of
proficiency in English that is commensurate with the level of English
spoken at community clinics where he or she will practice. The
community clinic employing a physician shall submit documentation
confirming approval of an ESL program to the Medical Board of
California for verification. Transcripts of satisfactory completion
of the ESL classes shall be submitted to the board as proof of
compliance with this provision.
(6) (A) Nonprofit community health centers employing Mexican
physicians in the program shall be required to have medical quality
assurance protocols and either be accredited by the Joint Commission
on Accreditation of Health Care Organizations or have protocols
similar to those required by the Joint Commission on Accreditation of
Health Care Organizations. These protocols shall be submitted to
the Medical Board of California prior to the hiring of Mexican
physicians.
(B) In addition, after the program participant successfully
completes the six-month externship program, a freestanding health
care organization that has authority to provide medical quality
certification, including, but not limited to, health plans,
hospitals, and the Integrated Physician Association, is responsible
for ensuring and overseeing the compliance of nonprofit community
health centers medical quality assurance protocols, conducting site
visits when necessary, and developing any additional protocols,
surveys, or assessment tools to ensure that quality of care standards
through quality assurance protocols are being appropriately followed
by physicians participating in the program.
(7) Participating hospitals shall have the authority to establish
criteria necessary to allow individuals participating in this
three-year pilot program to be granted hospital privileges in their
facilities.
(8) The Medical Board of California shall provide oversight review
of both the implementation of this program and the evaluation
required pursuant to subdivision (j). The board shall consult with
the medical schools applying for funding to implement and evaluate
this program, executive and medical directors of nonprofit community
health centers wanting to employ program participants, and hospital
administrators who will have these participants practicing in their
hospital, as it conducts its oversight responsibilities of this
program and evaluation. Any funding necessary for the implementation
of this program, including the evaluation and oversight functions,
shall be secured from nonprofit philanthropic entities.
Implementation of this program may not proceed unless appropriate
funding is secured from nonprofit philanthropic entities. The board
shall report to the Legislature every January during which the
program is operational regarding the status of the program and the
ability of the program to secure the funding necessary to carry out
its required provisions. Notwithstanding Section 11005 of the
Government Code, the board may accept funds from nonprofit
philanthropic entities. The board shall, upon appropriation in the
annual Budget Act, expend funds received from nonprofit philanthropic
entities for this program.
(d) (1) Dentists from Mexico eligible to participate in this
program shall comply with the following requirements or the
requirements contained in paragraph (2):
(A) Be graduates from the National Autonomous University of Mexico
School of Faculty Dentistry (Facultad de Odontologia).
(B) Meet all criteria required for licensure in Mexico that is
required and being applied by the National Autonomous University of
Mexico School of Faculty Dentistry (Facultad de Odontologia),
including, but not limited to:
(i) A minimum grade point average.
(ii) A specified English language comprehension and conversational
level.
(iii) Passage of a general examination.
(iv) Passage of an oral interview.
(C) Enroll and complete an orientation program that focuses on the
following:
(i) Practical issues in pharmacology that shall be taught by an
instructor who is affiliated with a California dental school approved
by the Dental Board of California.
(ii) Practical issues and diagnosis in oral pathology that shall
be taught by an instructor who is affiliated with a California dental
school approved by the Dental Board of California.
(iii) Clinical applications that shall be taught by an instructor
who is affiliated with a California dental school approved by the
Dental Board of California.
(iv) Biomedical sciences that shall be taught by an instructor who
is affiliated with a California dental school approved by the Dental
Board of California.
(v) Clinical history management that shall be taught by an
instructor who is affiliated with a California dental school approved
by the Dental Board of California.
(vi) Special patient care that shall be taught by an instructor
who is affiliated with a California dental school approved by the
Dental Board of California.
(vii) Sedation techniques that shall be taught by an instructor
who is affiliated with a California dental school approved by the
Dental Board of California.
(viii) Infection control guidelines which shall be taught by an
instructor who is affiliated with a California dental school approved
by the Dental Board of California.
(ix) Introduction to health care systems in California.
(x) Introduction to community clinic operations.
(2) (A) Graduate within the three-year period prior to enrollment
in the program, from a foreign dental school that has received
provisional approval or certification by November of 2003 from the
Dental Board of California under the Foreign Dental School Approval
Program.
(B) Enroll and satisfactorily complete an orientation program that
focuses on the health care system and community clinic operations in
California.
(C) Enroll and satisfactorily complete a course taught by an
approved foreign dental school on the infection control guidelines
adopted by the Dental Board of California.
(3) Upon satisfactory completion to a competency level of the
requirements in paragraph (1) or (2), dentists participating in the
program shall be eligible to obtain employment in a nonprofit
community health center pursuant to subdivision (f) within the
structure of an extramural dental program for a period not to exceed
three years.
(4) Dentists participating in the program shall be required to
complete the necessary continuing education units required by the
Dental Practice Act (Chapter 4 (commencing with Section 1600)).
(5) The program shall accept 30 participating dentists. The
program shall also maintain an alternate list of program applicants.
If an active program participant leaves the program for any reason,
a participating dentist from the alternate list shall be chosen to
fill the vacancy. Only active program participants shall be required
to complete the orientation program specified in subparagraph (C) of
paragraph (1).
(6) (A) Additionally, an extramural dental facility may be
identified, qualified, and approved by the board as an adjunct to,
and an extension of, the clinical and laboratory departments of an
approved dental school.
(B) As used in this subdivision, "extramural dental facility"
includes, but is not limited to, any clinical facility linked to an
approved dental school for the purposes of monitoring or overseeing
the work of a dentist licensed in Mexico participating in this
program and that is employed by an approved dental school for
instruction in dentistry that exists outside or beyond the walls,
boundaries, or precincts of the primary campus of the approved dental
school, and in which dental services are rendered. These facilities
shall include nonprofit community health centers.
(C) Dental services provided to the public in these facilities
shall constitute a part of the dental education program.
(D) Approved dental schools shall register extramural dental
facilities with the board. This registration shall be accompanied by
information supplied by the dental school pertaining to faculty
supervision, scope of treatment to be rendered, arrangements for
postoperative care, the name and location of the facility, the date
operations shall commence at the facility, and a description of the
equipment and facilities available. This information shall be
supplemented with a copy of the agreement between the approved dental
school and the affiliated institution establishing the contractual
relationship. Any change in the information initially provided to
the board shall be communicated to the board.
(7) The program shall also include issues dealing with program
operations, and shall be developed in consultation by representatives
of community clinics, approved dental schools, and the National
Autonomous University of Mexico School of Faculty Dentistry (Facultad
de Odontologia).
(8) The Dental Board of California shall provide oversight review
of the implementation of this program and the evaluation required
pursuant to subdivision (j). The board shall consult with dental
schools in California that have applied for funding to implement and
evaluate this program and executive and dental directors of nonprofit
community health centers wanting to employ program participants, as
it conducts its oversight responsibilities of this program and
evaluation. Implementation of this program may not proceed unless
appropriate funding is secured from nonprofit philanthropic entities.
The board shall report to the Legislature every January during
which the program is operational regarding the status of the program
and the ability of the program to secure the funding necessary to
carry out its required provisions. Notwithstanding Section 11005 of
the Government Code, the board may accept funds from nonprofit
philanthropic entities.
(e) Nonprofit community health centers that employ participants
shall be responsible for ensuring that participants are enrolled in
local English-language instruction programs and that the participants
attain English-language fluency at a level that would allow the
participants to serve the English-speaking patient population when
necessary and have the literacy level to communicate with appropriate
hospital staff when necessary.
(f) Physicians and dentists from Mexico having met the applicable
requirements set forth in subdivisions (c) and (d) shall be placed in
a pool of candidates who are eligible to be recruited for employment
by nonprofit community health centers in California, including, but
not limited to, those located in the Counties of Ventura, Los
Angeles, San Bernardino, Imperial, Monterey, San Benito, Sacramento,
San Joaquin, Santa Cruz, Yuba, Orange, Colusa, Glenn, Sutter, Kern,
Tulare, Fresno, Stanislaus, San Luis Obispo, and San Diego. The
Medical Board of California shall ensure that all Mexican physicians
participating in this program have satisfactorily met the
requirements set forth in subdivision (c) prior to placement at a
nonprofit community health center.
(g) Nonprofit community health centers in the counties listed in
subdivision (f) shall apply to the Medical Board of California and
the Dental Board of California to hire eligible applicants who shall
then be required to complete a six-month externship that includes
working in the nonprofit community health center and a corresponding
hospital. Once enrolled in this externship, and upon payment of the
required fees, the Medical Board of California shall issue a
three-year nonrenewable license to practice medicine and the Dental
Board of California shall issue a three-year nonrenewable dental
special permit to practice dentistry. For purposes of this program,
the fee for a three-year nonrenewable license to practice medicine
shall be nine hundred dollars ($900) and the fee for a three-year
nonrenewable dental permit shall be five hundred forty-eight dollars
($548). A licensee or permitholder shall practice only in the
nonprofit community health center that offered him or her employment
and the corresponding hospital. This three-year nonrenewable license
or permit shall be deemed to be a license or permit in good standing
pursuant to the provisions of this chapter for the purpose of
participation and reimbursement in all federal, state, and local
health programs, including managed care organizations and health
maintenance organizations.
(h) The three-year nonrenewable license or permit shall terminate
upon notice by certified mail, return receipt requested, to the
licensee's or permitholder's address of record, if, in the Medical
Board of California or Dental Board of California's sole discretion,
it has determined that either:
(1) The license or permit was issued by mistake.
(2) A complaint has been received by either board against the
licensee or permitholder that warrants terminating the license or
permit pending an investigation and resolution of the complaint.
(i) All applicable employment benefits, salary, and policies
provided by nonprofit community health centers to their current
employees shall be provided to medical and dental practitioners from
Mexico participating in this pilot program. This shall include
nonprofit community health centers providing malpractice insurance
coverage.
(j) Beginning 12 months after this pilot program has commenced, an
evaluation of the program shall be undertaken with funds provided
from philanthropic foundations. The evaluation shall be conducted
jointly by one medical school and one dental school in California and
UNAM in consultation with the Medical Board of California and the
Dental Board of California. If the evaluation required pursuant to
this section does not begin within 15 months after the pilot project
has commenced, the evaluation may be performed by an independent
consultant selected by the Director of the Department of Consumer
Affairs. This evaluation shall include, but not be limited to, the
following issues and concerns:
(1) Quality of care provided by doctors and dentists licensed
under this pilot program.
(2) Adaptability of these licensed practitioners to California
medical and dental standards.
(3) Impact on working and administrative environment in nonprofit
community health centers and impact on interpersonal relations with
medical licensed counterparts in health centers.
(4) Response and approval by patients.
(5) Impact on cultural and linguistic services.
(6) Increases in medical encounters provided by participating
practitioners to limited-English-speaking patient populations and
increases in the number of limited-English-speaking patients seeking
health care services from nonprofit community health centers.
(7) Recommendations on whether the program should be continued,
expanded, altered, or terminated.
(8) Progress reports on available data listed shall be provided to
the Legislature on achievable time intervals beginning the second
year of implementation of this pilot program. An interim final
report shall be issued three months before termination of this pilot
program. A final report shall be submitted to the Legislature at the
time of termination of this pilot program on all of the above data.
The final report shall reflect and include how other initiatives
concerning the development of culturally and linguistically competent
medical and dental providers within California and the United States
are impacting communities in need of these health care providers.
(k) Costs for administering this pilot program shall be secured
from philanthropic entities.
(l) Program applicants shall be responsible for working with the
governments of Mexico and the United States in order to obtain the
necessary three-year visa required for program participation.
SEC. 3. Section 2241.5 of the Business and Professions Code is
amended to read:
2241.5. (a) Notwithstanding any other provision of law, a
physician and surgeon may prescribe or administer controlled
substances to a person in the course of the physician and surgeon's
treatment of that person for a diagnosed condition causing
intractable pain.
(b) "Intractable pain," as used in this section, means a pain
state in which the cause of the pain cannot be removed or otherwise
treated and which in the generally accepted course of medical
practice no relief or cure of the cause of the pain is possible or
none has been found after reasonable efforts, including, but not
limited to, evaluation by the attending physician and surgeon and one
or more physicians and surgeons specializing in the treatment of the
area, system, or organ of the body perceived as the source of the
pain.
(c) No physician and surgeon shall be subject to disciplinary
action by the board for prescribing or administering controlled
substances in the course of treatment of a person for intractable
pain.
(d) This section shall not apply to those persons being treated by
the physician and surgeon for chemical dependency because of their
use of drugs or controlled substances.
(e) This section shall not authorize a physician and surgeon to
prescribe or administer controlled substances to a person the
physician and surgeon knows to be using drugs or substances for
nontherapeutic purposes.
(f) This section shall not affect the power of the board to deny,
revoke, or suspend the license of any physician and surgeon who does
any of the following:
(1) Prescribes or administers a controlled substance or treatment
that is nontherapeutic in nature or nontherapeutic in the manner the
controlled substance or treatment is administered or prescribed or is
for a nontherapeutic purpose in a nontherapeutic manner.
(2) Fails to keep complete and accurate records of purchases and
disposals of substances listed in the California Controlled
Substances Act, or of controlled substances scheduled in, or pursuant
to, the federal Comprehensive Drug Abuse Prevention and Control Act
of 1970. A physician and surgeon shall keep records of his or her
purchases and disposals of these drugs, including the date of
purchase, the date and records of the sale or disposal of the drugs
by the physician and surgeon, the name and address of the person
receiving the drugs, and the reason for the disposal of or the
dispensing of the drugs to the person and shall otherwise comply with
all state recordkeeping requirements for controlled substances.
(3) Writes false or fictitious prescriptions for controlled
substances listed in the California Controlled Substances Act or
scheduled in the federal Comprehensive Drug Abuse Prevention and
Control Act of 1970.
(4) Prescribes, administers, or dispenses in a manner not
consistent with public health and welfare controlled substances
listed in the California Controlled Substances Act or scheduled in
the federal Comprehensive Drug Abuse Prevention and Control Act of
1970.
(5) Prescribes, administers, or dispenses in violation of either
Chapter 4 (commencing with Section 11150) or Chapter 5 (commencing
with Section 11210) of Division 10 of the Health and Safety Code or
this chapter.
(g) Nothing in this section shall be construed to prohibit the
governing body of a hospital from taking disciplinary actions against
a physician and surgeon, as authorized pursuant to Sections 809.05,
809.4, and 809.5.
SEC. 4. Section 2260 of the Business and Professions Code is
amended to read:
2260. (a) A physician and surgeon who removes sperm or ova from a
patient shall, before the sperm or ova are used for a purpose other
than reimplantation in the same patient or implantation in the spouse
of the patient, obtain the written consent of the patient as
provided in subdivision (b).
(b) The consent required by subdivision (a) shall conform to all
of the following requirements:
(1) The consent shall be in writing and shall contain the
following statement: I (name of donor) do hereby donate (type and
number, if applicable, of sperm or ova), to (name of clinic or other
donee) for (specify purpose).
(2) The consent shall contain a statement by the donor that
specifies the disposition of any unused donated material.
(3) The consent shall be signed by the patient and by the
physician and surgeon who removes the sperm or ova.
(4) The physician and surgeon shall retain the original consent in
the medical record of the patient and give a copy of the consent to
the patient.
(5) The consent shall contain a notification to the patient that
the written consent is an important document that should be retained
with other vital records.
(6) If the procedure to remove the sperm or ova is performed in a
hospital, the physician and surgeon shall provide a copy of the
consent to the hospital.
(c) Nothing in this section shall affect the obligation of a
physician and surgeon under current law to obtain the informed
consent of a patient before performing a medical procedure on the
patient that may significantly affect the patient's reproductive
health or ability to conceive, or both.
(d) A violation of this section constitutes unprofessional
conduct. Section 2314 shall not apply to this section.
(e) A physician and surgeon who fails, for the second time, to
obtain any consent required in subdivision (a) or (b) before
transferring sperm or ova from a provider of sperm or ova to a
recipient, shall be assessed a civil penalty in an amount not less
than one thousand dollars ($1,000) and not more than five thousand
dollars ($5,000) plus court costs, as determined by the court, which
penalty and costs shall be paid to the individual whose required
consent was not obtained. A separate penalty shall be assessed for
each individual from whom the consent was not obtained. The
penalties in this section shall be available in addition to any other
remedies that may be available under other provisions of law.
SEC. 5. Section 3651 of the Business and Professions Code is
amended to read:
3651. In order to be certified for the specialty practice of
naturopathic childbirth attendance, a naturopathic doctor shall
obtain a passing grade on the American College of Nurse Midwives
Written Examination, or a substantially equivalent examination
approved by the bureau, and shall establish, to the bureau's
satisfaction, compliance with one of the following requirements:
(a) Successful completion of a certificate of midwifery or
naturopathic obstetrics specialty from an approved naturopathic
medical education program consisting of not less than 84 semester
units or 126 quarter units that substantially complies with the
following educational standards and requirements:
(1) The curriculum is presented in semester or quarter units under
the following formula:
(A) One hour of instruction in theory each week throughout a
semester or quarter equals one unit.
(B) Three hours of clinical practice each week throughout a
semester or quarter equals one unit.
(2) The program provides both academic and clinical preparation
that is substantially equivalent to that provided in a program
accredited by the American College of Nurse Midwives. The program
includes, but is not limited to, preparation in all of the following
areas:
(A) The art and science of midwifery, one-half of which shall be
in theory and one-half of which shall be in clinical practice.
Theory and clinical practice shall be concurrent in the areas of
maternal and child health, including, but not limited to, labor and
delivery, neonatal well care, and postpartum care.
(B) Communications skills that include the principles of oral,
written, and group communications.
(C) Anatomy and physiology, genetics, obstetrics and gynecology,
embryology and fetal development, neonatology, applied microbiology,
chemistry, child growth and development, pharmacology, nutrition,
laboratory diagnostic tests and procedures, and physical assessment.
(D) Concepts in psychosocial, emotional, and cultural aspects of
maternal and child care, human sexuality, counseling and teaching,
maternal and infant and family bonding process, breast feeding,
family planning, principles of preventive health, and community
health.
(E) Aspects of the normal pregnancy, labor and delivery,
postpartum period, newborn care, family planning, or routine
gynecological care in alternative birth centers, homes, and
hospitals.
(3) The program integrates the following subjects throughout its
entire curriculum:
(A) Midwifery process.
(B) Basic intervention skills in preventive, remedial, and
supportive midwifery.
(C) The knowledge and skills required to develop collegial
relationships with health care providers from other disciplines.
(D) Related behavioral and social sciences with emphasis on
societal and cultural patterns, human development, and behavior
related to maternal and child health, illness, and wellness.
(4) Instruction in personal hygiene, client abuse, cultural
diversity, and the legal, social, and ethical aspects of midwifery.
(5) Instruction in the midwifery management process which shall
include all of the following:
(A) Obtaining or updating a defined and relevant database for
assessment of the health status of the client.
(B) Identifying problems based upon correct interpretation of the
database.
(C) Preparing a defined needs or problem list, or both, with
corroboration from the client.
(D) Consulting, collaborating with, and referring to, appropriate
members of the health care team.
(E) Providing information to enable clients to make appropriate
decisions and to assume appropriate responsibility for their own
health.
(F) Assuming direct responsibility for the development of
comprehensive, supportive care for the client and with the client.
(G) Assuming direct responsibility for implementing the plan of
care.
(H) Initiating appropriate measures for obstetrical and neonatal
emergencies.
(I) Evaluating, with corroboration from the client, the
achievement of health care goals and modifying the plan of care
appropriately.
(b) Successful completion of an educational program that the
bureau has determined satisfies the criteria of subdivision (a) and
current licensure as a midwife by a state with licensing standards
that have been found by the bureau to be substantially equivalent to
those adopted by the bureau pursuant to this article.
SEC. 6. Section 4052 of the Business and Professions Code is
amended to read:
4052. (a) Notwithstanding any other provision of law, a
pharmacist may do any of the following:
(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) (A) Furnish emergency contraception drug therapy in accordance
with either of the following:
(i) Standardized procedures or protocols developed by the
pharmacist and an authorized prescriber who is acting within his or
her scope of practice.
(ii) Standardized procedures or protocols developed and approved
by both the board and the Medical Board of California in consultation
with the American College of Obstetricians and Gynecologists, the
California Pharmacists Association, and other appropriate entities.
Both the board and the Medical Board of California shall have
authority to ensure compliance with this clause, and both boards are
specifically charged with the enforcement of this provision with
respect to their respective licensees. Nothing in this clause shall
be construed to expand the authority of a pharmacist to prescribe any
prescription medication.
(B) Prior to performing a procedure authorized under this
paragraph, a pharmacist shall complete a training program on
emergency contraception that consists of at least one hour of
approved continuing education on emergency contraception drug
therapy.
(C) A pharmacist, pharmacist's employer, or pharmacist's agent may
not directly charge a patient a separate consultation fee for
emergency contraception drug therapy services initiated pursuant to
this paragraph, but may charge an administrative fee not to exceed
ten dollars ($10) above the retail cost of the drug. Upon an oral,
telephonic, electronic, or written request from a patient or
customer, a pharmacist or pharmacist's employee shall disclose the
total retail price that a consumer would pay for emergency
contraception drug therapy. As used in this subparagraph, total
retail price includes providing the consumer with specific
information regarding the price of the emergency contraception drugs
and the price of the administrative fee charged. This limitation is
not intended to interfere with other contractually agreed-upon terms
between a pharmacist, a pharmacist's employer, or a pharmacist's
agent and a health care service plan or insurer. Patients who are
insured or covered and receive a pharmacy benefit that covers the
cost of emergency contraception shall not be required to pay an
administrative fee. These patients shall be required to pay
copayments pursuant to the terms and conditions of their coverage.
The provisions of this subparagraph shall cease to be operative for
dedicated emergency contraception drugs when these drugs are
reclassified as over-the-counter products by the federal Food and
Drug Administration.
(D) A pharmacist may not require a patient to provide individually
identifiable medical information that is not specified in Section
1707.1 of Title 16 of the California Code of Regulations before
initiating emergency contraception drug therapy pursuant to this
paragraph.
(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. 7. Section 4311 of the Business and Professions Code is
amended to read:
4311. (a) Any license issued by the board, or the holder thereof,
shall be suspended automatically during any time that the person is
incarcerated after conviction of a felony, regardless of whether the
conviction has been appealed. The board, immediately upon receipt of
a certified copy of a record of a criminal conviction, shall
determine whether the person has been automatically suspended by
virtue of incarceration pursuant to a felony conviction and, if so,
the duration of that suspension. The board shall notify the person so
suspended of the suspension and that the person has a right to
request a hearing, solely as to whether he or she is incarcerated
pursuant to a felony conviction, in writing at that person's address
of record with the board and at the facility in which the person is
incarcerated.
(b) In addition to any suspension under subdivision (a), the board
shall summarily suspend any license issued by the board where a
conviction of the holder of the license meets the requirements of
paragraphs (1) and (2).
(1) A felony that was either of the following:
(A) Committed in the course of a business or practice for which
the board issues a license.
(B) Committed in a manner that a client, customer, or patient of
the licensee was a victim.
(2) Where an element of the offense involves either of the
following:
(A) The specific intent to deceive, defraud, steal, or make a
false statement.
(B) The illegal sale or possession for sale of or trafficking in
any controlled substance.
(3) The suspension shall continue until the time for appeal has
elapsed, if no appeal is taken, or until the judgment of conviction
has been affirmed on appeal or has otherwise become final, and until
further order of the board.
(4) The board shall immediately send notice in writing of the
suspension to the licensee, or the holder of any other board-issued
license, at his or her address of record and, if incarcerated at the
time, at the facility in which the person is incarcerated. The
notice shall include notification of that person's right to elect to
have the issue of penalty heard as provided in paragraph (2) of
subdivision (d), and of the right to request a hearing to contest the
summary suspension. Any request for a hearing under this paragraph
must be received by the board within 15 days following receipt of the
notice provided for by this paragraph.
(5) The hearing shall be before an administrative law judge, a
committee of the board sitting with an administrative law judge, or
the board sitting with an administrative law judge, at the board's
discretion, and shall be subject to review by the board, at its
discretion. The hearing shall be limited to (A) whether there has
been a felony conviction as stated in the board's notice, and (B)
whether the conviction meets the criteria of this subdivision, except
where the licensee chooses to proceed as provided by paragraph (2)
of subdivision (d), or where the board has also filed and served an
accusation as provided in Chapter 5 (commencing with Section 11500)
of Part 1 of Division 3 of Title 2 of the Government Code and given
notice of the hearing as required by that chapter; provided that if
an accusation under Chapter 5 (commencing with Section 11500) of Part
1 of Division 3 of Title 2 of the Government Code is also to be
heard, only an administrative law judge sitting alone or the board,
sitting with an administrative law judge, may hear the case.
(c) In addition to any suspension under subdivision (a), the board
shall also suspend any license issued by the board, or the holder
thereof, if the board determines that the felony conviction of the
holder of the license is substantially related to the qualifications,
functions, or duties of the licensee.
(1) Notice of the board's determination shall be sent to the
licensee, or the holder thereof, at that person's address of record
with the board and, if the person is incarcerated at the time, the
facility in which the person is incarcerated. The notice shall
advise the person that the license shall be suspended without hearing
unless, within 15 days following receipt of the notice, a written
request for hearing is delivered to the board.
(2) Upon receipt of a timely request for hearing, a notice of
hearing shall be sent to the person at least 10 days before the date
scheduled for the hearing. The notice of hearing shall include
notification of that person's right to elect to have the issue of
penalty heard as provided in paragraph (2) of subdivision (d).
(3) The hearing to determine whether a felony conviction is
substantially related for purposes of an interim suspension under
this subdivision shall be separate from any hearing on an accusation
under the Administrative Procedure Act, except where the licensee
elects to proceed under paragraph (2) of subdivision (d), or where
the board has filed and served an accusation as provided by Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2
of the Government Code and given notice of hearing as required by
that chapter. The hearing on whether the felony conviction is
substantially related shall be heard either by an administrative law
judge sitting alone, by a committee of the board sitting with an
administrative law judge, or by the board sitting with an
administrative law judge, at the board's discretion, and shall be
subject to review by the board, at its discretion. However, if an
accusation under Chapter 5 (commencing with Section 11500) of Part 1
of Division 3 of Title 2 of the Government Code is also to be heard,
only an administrative law judge sitting alone or the board, sitting
with an administrative law judge, may hear the case. Except where a
person proceeds under paragraph (2) of subdivision (d), or the board
proceeds with an accusation at the same time, any suspension imposed
under this subdivision shall continue until an accusation is filed
under Chapter 5 (commencing with Section 11500) of Part 1 of Division
3 of Title 2 of the Government Code and a final decision is rendered
by the board.
(4) A conviction of any crime referred to in Section 4301, or for
violation of Section 187, 261, or 288 of the Penal Code, shall be
conclusively presumed to be substantially related to the
qualifications, functions, or duties of a licensee of the board.
Upon its own motion or for good cause shown the board may decline to
impose a suspension under this subdivision or may set aside a
suspension previously imposed when it appears to be in the interest
of justice to do so, with due regard to maintaining the integrity of
and confidence in the practice of pharmacy and the handling of
dangerous drugs and devices.
(d) (1) Discipline may be ordered in accordance with Section 4300
or an application denied when the time for appeal has elapsed, the
judgment of conviction has been affirmed on appeal, or an order
granting probation is made suspending the imposition of sentence,
irrespective of a subsequent order under Section 1203.4 of the Penal
Code allowing the person to withdraw his or her plea of guilty and to
enter a plea of not guilty, setting aside the verdict of guilty, or
dismissing the accusation, complaint, information, or indictment.
(2) The issue of penalty shall be heard by an administrative law
judge sitting alone or with a committee of the board or with the
board itself, at the board's discretion, and any decision shall be
subject to review by the board, at its discretion. The hearing shall
not be held until the judgment of conviction has become final or,
irrespective of a subsequent order under Section 1203.4 of the Penal
Code, an order granting probation has been made suspending the
imposition of sentence, provided that a licensee may, at his or her
option, elect to have the issue of penalty decided before those time
periods have elapsed. Where the licensee so elects, the issue of
penalty shall be heard in the manner described in this section at the
hearing to determine whether the conviction was substantially
related to the qualifications, functions, or duties of the licensee.
If the conviction of a licensee who has made this election is
overturned on appeal, any discipline ordered pursuant to this section
shall automatically cease. Nothing in this subdivision shall
prohibit the board from pursuing disciplinary action based on any
cause, including the facts underlying the conviction, other than the
overturned conviction.
(3) The record of the proceedings resulting in the criminal
conviction, including a transcript of any testimony taken in
connection with the proceeding, may be received in evidence in any
administrative proceeding to the extent the testimony would otherwise
be admissible under Chapter 5 (commencing with Section 11500) of
Part 1 of Division 3 of Title 2 of the Government Code. A certified
copy of the criminal conviction shall be conclusive proof of the fact
of the conviction.
(e) Other provisions of this chapter setting forth procedures for
the suspension or revocation of a license issued by the board shall
not apply to proceedings conducted pursuant to this section, except
as specifically provided in this section.
(f) For purposes of this section, a crime is a felony if it is
specifically declared to be so or is made a felony by subdivision (a)
of Section 17 of the Penal Code, unless it is charged as a
misdemeanor pursuant to paragraph (4) or (5) of subdivision (b) of
Section 17 of the Penal Code, irrespective of whether in a particular
case the crime may be considered a misdemeanor as a result of
postconviction proceedings. For purposes of this section, a felony
also includes a conviction under federal law, or the law of any other
state of the United States, of the District of Columbia, or of any
territory or possession of the United States. A conviction includes
a plea or verdict of guilty or a conviction following a plea of nolo
contendere.
(g) The board may delegate the authority to issue a suspension
under subdivision (a) or (b) or a notice of suspension under
subdivision (c) to the executive officer of the board.
SEC. 8. Section 4409 of the Business and Professions Code is
amended to read:
4409. At the time a pharmacy license is renewed pursuant to
subdivision (a) of Section 4110 or a pharmacist license is renewed
pursuant to Section 4401, the pharmacy or pharmacist may make a
twenty-five dollar ($25) contribution, to be submitted to the board,
for the sole purpose of funding the California Pharmacist Scholarship
and Loan Repayment Program established pursuant to Article 2
(commencing with Section 128198) of Chapter 3 of Part 3 of Division
107 of the Health and Safety Code. The contribution submitted
pursuant to this section shall be paid into the State Treasury and
credited to the California Pharmacist Scholarship and Loan Repayment
Program Fund established pursuant to Section 128198.5 of the Health
and Safety Code.
SEC. 9. Section 4980.90 of the Business and Professions Code is
amended to read:
4980.90. (a) Experience gained outside of California shall be
accepted toward the licensure requirements if it is substantially
equivalent to that required by this chapter and if the applicant has
gained a minimum of 250 hours of supervised experience in direct
counseling within California while registered as an intern with the
board.
(b) Education gained outside of California shall be accepted
toward the licensure requirements if it is substantially equivalent
to the education requirements of this chapter, and if the applicant
has completed all of the following:
(1) A two semester- or three quarter-unit course in California law
and professional ethics for marriage, family, and child counselors
that shall include areas of study as specified in Section 4980.41.
(2) A minimum of seven contact hours of
training or coursework in child abuse assessment and reporting as
specified in Section 28 and any regulations promulgated thereunder.
(3) A minimum of 10 contact hours of training or coursework in
sexuality as specified in Section 25 and any regulations promulgated
thereunder.
(4) A minimum of 15 contact hours of training or coursework in
alcoholism and other chemical substance dependency as specified by
regulation.
(5) (A) Instruction in spousal or partner abuse assessment,
detection, and intervention. This instruction may be taken either in
fulfillment of other educational requirements for licensure or in a
separate course.
(B) On and after January 1, 2004, a minimum of 15 contact hours of
coursework or training in spousal or partner abuse assessment,
detection, and intervention strategies.
(6) On and after January 1, 2003, a minimum of a two semester- or
three quarter-unit survey course in psychological testing. This
course may be taken either in fulfillment of other requirements for
licensure or in a separate course.
(7) On and after January 1, 2003, a minimum of a two semester- or
three quarter-unit survey course in psychopharmacology. This course
may be taken either in fulfillment of other requirements for
licensure or in a separate course.
(8) With respect to human sexuality, alcoholism and other chemical
substance dependency, spousal or partner abuse assessment,
detection, and intervention, psychological testing, and
psychopharmacology, the board may accept training or coursework
acquired out of state.
(c) For purposes of this section, the board may, in its
discretion, accept education as substantially equivalent if the
applicant has been granted a degree in a single integrated program
primarily designed to train marriage, family, and child counselors
and if the applicant's education meets the requirements of Sections
4980.37 and 4980.40. The degree title and number of units in the
degree program need not be identical to those required by subdivision
(a) of Section 4980.40. If the applicant's degree does not contain
the number of units required by subdivision (a) of Section 4980.40,
the board may, in its discretion, accept the applicant's education as
substantially equivalent if the applicant's degree otherwise
complies with this section and the applicant completes the units
required by subdivision (a) of Section 4980.40.
SEC. 10. Section 7026.1 of the Business and Professions Code is
amended to read:
7026.1. The term "contractor" includes all of the following:
(a) Any person not exempt under Section 7053 who maintains or
services air-conditioning, heating, or refrigeration equipment that
is a fixed part of the structure to which it is attached.
(b) Any person, consultant to an owner-builder, firm, association,
organization, partnership, business trust, corporation, or company,
who or which undertakes, offers to undertake, purports to have the
capacity to undertake, or submits a bid, to construct any building or
home improvement project, or part thereof.
(c) A temporary labor service agency that, as the employer,
provides employees for the performance of work covered by this
chapter. The provisions of this subdivision shall not apply if there
is a properly licensed contractor who exercises supervision in
accordance with Section 7068.1 and who is directly responsible for
the final results of the work. Nothing in this subdivision shall
require a qualifying individual, as provided in Section 7068, to be
present during the supervision of work covered by this chapter. A
contractor requesting the services of a temporary labor service
agency shall provide his or her license number to that temporary
labor service agency.
(d) Any person not otherwise exempt by this chapter, who performs
tree removal, tree pruning, stump removal, or engages in tree or limb
cabling or guying. The term contractor does not include a person
performing the activities of a nurseryperson who in the normal course
of routine work performs incidental pruning of trees, or guying of
planted trees and their limbs. The term contractor does not include
a gardener who in the normal course of routine work performs
incidental pruning of trees measuring less than 15 feet in height
after planting.
(e) Any person engaged in the business of drilling, digging,
boring, or otherwise constructing, deepening, repairing,
reperforating, or abandoning any water well, cathodic protection
well, or monitoring well.
SEC. 11. Section 7028 of the Business and Professions Code is
amended to read:
7028. (a) It is a misdemeanor for any person to engage in the
business or act in the capacity of a contractor within this state
without having a license therefor, unless the person is particularly
exempted from the provisions of this chapter.
(b) If a person has been previously convicted of the offense
described in this section, the court shall impose a fine of 20
percent of the price of the contract under which the unlicensed
person performed contracting work, or four thousand five hundred
dollars ($4,500), whichever is greater, and the person shall be
confined in a county jail for not less than 90 days, except in an
unusual case where the interests of justice would be served by
imposition of a lesser sentence or a fine. If the court imposes only
a fine or a jail sentence of less than 90 days for second or
subsequent convictions under this section, the court shall state the
reasons for its sentencing choice on the record.
(c) In the event the person performing the contracting work has
agreed to furnish materials and labor on an hourly basis, "the price
of the contract" for the purposes of this section means the aggregate
sum of the cost of materials and labor furnished and the cost of
completing the work to be performed.
(d) Notwithstanding any other provision of law to the contrary, an
indictment for any violation of this section by the unlicensed
contractor shall be found or an information or complaint filed within
four years from the date of the contract proposal, contract,
completion, or abandonment of the work, whichever occurs last.
SEC. 12. Section 12107.1 of the Business and Professions Code is
amended to read:
12107.1. The director, by regulation, may establish a standard or
standards of net weight or net measure, or net count of any
commodity, except any manufactured commodity consisting of four or
more staple ingredients. These standards, whenever applicable, shall
be based upon published, official federal or state specifications
and requirements or, in the absence of any such published official
specifications, upon established and accepted common usage. Any
regulation shall be adopted, amended, or repealed in conformity with
the provisions of Chapter 3.5 (commencing with Section 11340) of Part
1 of Division 3 of Title 2 of the Government Code.
Whenever a standard, net weight, net measure, or net count has
been established for any commodity, it is unlawful to sell the
commodity by, at, or for a quantity greater or less than the
standard.
SEC. 13. Section 13570 of the Business and Professions Code is
amended to read:
13570. (a) A manufacturer, blender, agent, jobber, consignment
agent, or distributor who distributes motor fuel products that
contain at least 1 percent alcohol by volume, shall state on an
invoice, bill of lading, shipping paper, or other documentation used
in normal and customary business practices, the percentage of
alcohol, the type of alcohol, and, except in documentation certifying
the octane rating of gasoline as required by federal law, the
minimum antiknock index number, as defined in Section 13403, of the
products distributed.
(b) If a motor vehicle fuel product contains less than 10 percent
alcohol, a statement in the documentation that the product "contains
up to 10% ethanol" meets the requirement of subdivision (a) that it
state the percentage of alcohol.
(c) This section, as it relates to certification of the minimum
antiknock index number, applies to all motor vehicle gasoline
distributed.
SEC. 14. Section 17529.1 of the Business and Professions Code is
amended to read:
17529.1. For the purpose of this article, the following
definitions apply:
(a) "Advertiser" means a person or entity that advertises through
the use of commercial e-mail advertisements.
(b) "California electronic mail address" or "California e-mail
address" means any of the following:
(1) An e-mail address furnished by an electronic mail service
provider that sends bills for furnishing and maintaining that e-mail
address to a mailing address in this state.
(2) An e-mail address ordinarily accessed from a computer located
in this state.
(3) An e-mail address furnished to a resident of this state.
(c) "Commercial e-mail advertisement" means any electronic mail
message initiated for the purpose of advertising or promoting the
lease, sale, rental, gift offer, or other disposition of any
property, goods, services, or extension of credit.
(d) "Direct consent" means that the recipient has expressly
consented to receive e-mail advertisements from the advertiser,
either in response to a clear and conspicuous request for the consent
or at the recipient's own initiative.
(e) "Domain name" means any alphanumeric designation that is
registered with or assigned by any domain name registrar as part of
an electronic address on the Internet.
(f) "Electronic mail" or "e-mail" means an electronic message that
is sent to an e-mail address and transmitted between two or more
telecommunications devices, computers, or electronic devices capable
of receiving electronic messages, whether or not the message is
converted to hard copy format after receipt, viewed upon
transmission, or stored for later retrieval. "Electronic mail" or
"e-mail" includes electronic messages that are transmitted through a
local, regional, or global computer network.
(g) "Electronic mail address" or "e-mail address" means a
destination, commonly expressed as a string of characters, to which
electronic mail can be sent or delivered. An "electronic mail
address" or "e-mail address" consists of a user name or mailbox and a
reference to an Internet domain.
(h) "Electronic mail service provider" means any person, including
an Internet service provider, that is an intermediary in sending or
receiving electronic mail or that provides to end users of the
electronic mail service the ability to send or receive electronic
mail.
(i) "Initiate" means to transmit or cause to be transmitted a
commercial e-mail advertisement or assist in the transmission of a
commercial e-mail advertisement by providing electronic mail
addresses where the advertisement may be sent, but does not include
the routine transmission of the advertisement through the network or
system of a telecommunications utility or an electronic mail service
provider through its network or system.
(j) "Incident" means a single transmission or delivery to a single
recipient or to multiple recipients of an unsolicited commercial
e-mail advertisement containing substantially similar content.
(k) "Internet" has the meaning set forth in paragraph (6) of
subdivision (e) of Section 17538.
(l) "Preexisting or current business relationship," as used in
connection with the sending of a commercial e-mail advertisement,
means that the recipient has made an inquiry and has provided his or
her e-mail address, or has made an application, purchase, or
transaction, with or without consideration, regarding products or
services offered by the advertiser.
Commercial e-mail advertisements sent pursuant to the exemption
provided for a preexisting or current business relationship shall
provide the recipient of the commercial e-mail advertisement with the
ability to "opt-out" from receiving further commercial e-mail
advertisements by calling a toll-free telephone number or by sending
an "unsubscribe" e-mail to the advertiser offering the products or
services in the commercial e-mail advertisement. This opt-out
provision does not apply to recipients who are receiving free e-mail
service with regard to commercial e-mail advertisements sent by the
provider of the e-mail service.
(m) "Recipient" means the addressee of an unsolicited commercial
e-mail advertisement. If an addressee of an unsolicited commercial
e-mail advertisement has one or more e-mail addresses to which an
unsolicited commercial e-mail advertisement is sent, the addressee
shall be deemed to be a separate recipient for each e-mail address to
which the e-mail advertisement is sent.
(n) "Routine transmission" means the transmission, routing,
relaying, handling, or storing of an electronic mail message through
an automatic technical process. "Routine transmission" shall not
include the sending, or the knowing participation in the sending, of
unsolicited commercial e-mail advertisements.
(o) "Unsolicited commercial e-mail advertisement" means a
commercial e-mail advertisement sent to a recipient who meets both of
the following criteria:
(1) The recipient has not provided direct consent to receive
advertisements from the advertiser.
(2) The recipient does not have a preexisting or current business
relationship, as defined in subdivision (l), with the advertiser
promoting the lease, sale, rental, gift offer, or other disposition
of any property, goods, services, or extension of credit.
SEC. 15. Section 17538.45 of the Business and Professions Code is
amended to read:
17538.45. (a) For purposes of this section, the following words
have the following meanings:
(1) "Electronic mail advertisement" means any electronic mail
message, the principal purpose of which is to promote, directly or
indirectly, the sale or other distribution of goods or services to
the recipient.
(2) "Unsolicited electronic mail advertisement" means any
electronic mail advertisement that meets both of the following
requirements:
(A) It is addressed to a recipient with whom the initiator does
not have an existing business or personal relationship.
(B) It is not sent at the request of or with the express consent
of the recipient.
(3) "Electronic mail service provider" means any business or
organization qualified to do business in California that provides
registered users the ability to send or receive electronic mail
through equipment located in this state and that is an intermediary
in sending or receiving electronic mail.
(4) "Initiation" of an unsolicited electronic mail advertisement
refers to the action by the initial sender of the electronic mail
advertisement. It does not refer to the actions of any intervening
electronic mail service provider that may handle or retransmit the
electronic message.
(5) "Registered user" means any individual, corporation, or other
entity that maintains an electronic mail address with an electronic
mail service provider.
(b) No registered user of an electronic mail service provider
shall use or cause to be used that electronic mail service provider's
equipment located in this state in violation of that electronic mail
service provider's policy prohibiting or restricting the use of its
service or equipment for the initiation of unsolicited electronic
mail advertisements.
(c) No individual, corporation, or other entity shall use or cause
to be used, by initiating an unsolicited electronic mail
advertisement, an electronic mail service provider's equipment
located in this state in violation of that electronic mail service
provider's policy prohibiting or restricting the use of its equipment
to deliver unsolicited electronic mail advertisements to its
registered users.
(d) An electronic mail service provider shall not be required to
create a policy prohibiting or restricting the use of its equipment
for the initiation or delivery of unsolicited electronic mail
advertisements.
(e) Nothing in this section shall be construed to limit or
restrict the rights of an electronic mail service provider under
Section 230(c)(1) of Title 47 of the United States Code, any decision
of an electronic mail service provider to permit or to restrict
access to or use of its system, or any exercise of its editorial
function.
(f) (1) In addition to any other action available under law, any
electronic mail service provider whose policy on unsolicited
electronic mail advertisements is violated as provided in this
section may bring a civil action to recover the actual monetary loss
suffered by that provider by reason of that violation, or liquidated
damages of fifty dollars ($50) for each electronic mail message
initiated or delivered in violation of this section, up to a maximum
of twenty-five thousand dollars ($25,000) per day, whichever amount
is greater.
(2) In any action brought pursuant to paragraph (1), the court may
award reasonable attorney's fees to a prevailing party.
(3) (A) In any action brought pursuant to paragraph (1), the
electronic mail service provider shall be required to establish as an
element of its cause of action that prior to the alleged violation,
the defendant had actual notice of both of the following:
(i) The electronic mail service provider's policy on unsolicited
electronic mail advertising.
(ii) The fact that the defendant's unsolicited electronic mail
advertisements would use or cause to be used the electronic mail
service provider's equipment located in this state.
(B) In this regard, the Legislature finds that with rapid advances
in Internet technology, and electronic mail technology in
particular, Internet service providers are already experimenting with
embedding policy statements directly into the software running on
the computers used to provide electronic mail services in a manner
that displays the policy statements every time an electronic mail
delivery is requested. While the state of the technology does not
support this finding at present, the Legislature believes that, in a
given case at some future date, a showing that notice was supplied
via electronic means between the sending and receiving computers
could be held to constitute actual notice to the sender for purposes
of this paragraph.
(4) (A) An electronic mail service provider who has brought an
action against a party for a violation under Section 17529.8 shall
not bring an action against that party under this section for the
same unsolicited commercial electronic mail advertisement.
(B) An electronic mail service provider who has brought an action
against a party for a violation of this section shall not bring an
action against that party under Section 17529.8 for the same
unsolicited commercial electronic mail advertisement.
SEC. 16. Section 17550.30 of the Business and Professions Code is
amended to read:
17550.30. (a) The Travel Seller Fund is hereby created in the
State Treasury. All fines, penalties, and fees, including late fees,
collected pursuant to this article, and any moneys collected for a
violation of this article or Article 2.7 (commencing with Section
17550.35), shall be deposited in the fund, and the moneys in the fund
may be expended only for the purposes specified in this article.
(b) All moneys paid into the State Treasury and credited to the
Travel Seller Fund shall be used by the Department of Justice in
carrying out and enforcing the provisions of this article, including,
but not limited to, the payment of salaries of Department of Justice
personnel, contractors, or consultants, and the dissemination of
information, including consumer education regarding this article and
Article 2.7 (commencing with Section 17550.35).
(c) The sum of three hundred ninety-five thousand dollars
($395,000) is hereby appropriated from the Travel Seller Fund to the
Department of Justice for purposes of the Sellers of Travel Program
established pursuant to Article 2.6 (commencing with Section 17550).
SEC. 17. Section 17593 of the Business and Professions Code is
amended to read:
17593. (a) The Attorney General, a district attorney, or a city
attorney may bring a civil action in any court of competent
jurisdiction against a telephone solicitor to enforce the article and
to obtain any one or more of the following remedies:
(1) An order to enjoin the violation.
(2) A civil penalty of up to the penalty amount that the Federal
Trade Commission may seek pursuant to subparagraph (A) of paragraph
(1) of subsection (m) of Section 45 of Title 15 of the United States
Code as specified in Section 1.98 of Title 16 of the Code of Federal
Regulations.
(3) Any other relief that the court deems proper.
(b) Any person who has received a telephone solicitation that is
prohibited by Section 17592, or whose telephone number was used in
violation of Section 17591, may bring a civil action in small claims
court for an injunction or order to prevent further violations. If a
person obtains an injunction or order under this subdivision and
service of the injunction or order is properly effected, a person who
thereafter receives further solicitations in violation of the
injunction or order within 30 days after service of the initial
injunction or order, may file a subsequent action in small claims
court seeking enforcement of the injunction or order and a civil
penalty to be awarded to the person in an amount up to one thousand
dollars ($1,000). For purposes of this subdivision, a person's
claims may not be aggregated to establish jurisdiction in a court
other than small claims court. For purposes of this subdivision, a
defendant is not required to personally appear, but may appear by
affidavit or by written instrument.
(c) The rights, remedies, and penalties established by this
article are in addition to the rights, remedies, or penalties
established under other laws.
(d) It shall be an affirmative defense to any action brought under
this article that the violation was accidental and in violation of
the telephone solicitor's policies and procedures and telemarketer
instruction and training.
SEC. 18. Section 18824 of the Business and Professions Code, as
amended by Section 2 of Chapter 515 of the Statutes of 2003, is
amended to read:
18824. (a) Except as provided in Sections 18646 and 18832, every
person who conducts a contest or wrestling exhibition shall, within
72 hours after the determination of every contest or wrestling
exhibition for which admission is charged and received, furnish to
the commission a written report executed under penalty of perjury by
one of the officers, showing the amount of the gross receipts, not to
exceed two million dollars ($2,000,000), and the gross price for the
contest or wrestling exhibition charged directly or indirectly and
no matter by whom received, for the sale, lease, or other
exploitation of broadcasting and television rights of the contest or
wrestling exhibition, and without any deductions, except for expenses
incurred for one broadcast announcer, telephone line connection, and
transmission mobile equipment facility, which may be deducted from
the gross taxable base when those expenses are approved by the
commission. The person shall also, within the same time, pay to the
commission a fee of 5 percent, exclusive of any federal taxes paid
thereon, of the amount paid for admission to the contest or wrestling
exhibition, except that for any one boxing contest, the fee shall
not exceed the amount of one hundred thousand dollars ($100,000), and
a fee of up to 5 percent of the gross price as described above for
the sale, lease, or other exploitation of broadcasting or television
rights thereof, except that in no case shall the fee be less than one
thousand dollars ($1,000). The minimum fee for an amateur contest
or exhibition shall not be less than five hundred dollars ($500).
The amount of the gross receipts upon which the fee provided for in
this section is calculated shall not include any assessments levied
by the commission under Section 18711.
The fee on admission shall apply to the amount actually paid for
admission and not to the regular established price.
No fee is due in the case of a person admitted free of charge.
However, if the total number of persons admitted free of charge to a
boxing, kickboxing, or martial arts contest or wrestling exhibition
exceeds 25 percent of the total number of spectators, then a fee of
one dollar ($1) per complimentary ticket or pass used to gain
admission to the contest shall be paid to the commission for each
complimentary ticket or pass that exceeds the numerical total of 25
percent of the total number of spectators.
(b) If the fee on admissions for any one boxing contest exceeds
seventy thousand dollars ($70,000), the amount in excess of seventy
thousand dollars ($70,000) shall be paid one-half to the commission
and one-half to the Boxers' Pension Fund.
(c) As used in this section, "person" includes a promoter, club,
individual, corporation, partnership, association, or other
organization, and "wrestling exhibition" means a performance of
wrestling skills and techniques by two or more individuals, to which
admission is charged or which is broadcast or televised, in which the
participating individuals are not required to use their best efforts
in order to win, and for which the winner may have been selected
before the performance commences.
(d) 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. 19. Section 18824 of the Business and Professions Code, as
added by Section 3 of Chapter 515 of the Statutes of 2003, is amended
to read:
18824. (a) Except as provided in Sections 18646 and 18832, every
person who conducts a contest or wrestling exhibition shall, within
72 hours after the determination of every contest or wrestling
exhibition for which admission is charged and received, furnish to
the commission a written report executed under penalty of perjury by
one of the officers, showing the amount of the gross receipts for the
contest or wrestling exhibition, and the gross price charged
directly or indirectly and no matter by whom received, for the sale,
lease, or other exploitation of broadcasting and television rights of
the contest or wrestling exhibition, and without any deductions,
except for expenses incurred for one broadcast announcer, telephone
line connection, and transmission mobile equipment facility, which
may be deducted from the gross taxable base when those expenses are
approved by the commission. The person shall also, within the same
time pay to the commission
a 5-percent fee, exclusive of any federal taxes paid thereon, of the
amount paid for admission to the contest or wrestling exhibition, and
up to 5 percent of the gross price as described above for the sale,
lease, or other exploitation of broadcasting or television rights
thereof, except that in no case shall the fee be less than one
thousand dollars ($1,000).
(b) The minimum fee for an amateur contest or exhibition shall not
be less than five hundred dollars ($500). The amount of the gross
receipts upon which the fee provided for in this section is
calculated shall not include any assessments levied by the commission
under Section 18711.
The fee on admission shall apply to the amount actually paid for
admission and not to the regular established price.
No fee is due in the case of a person admitted free of charge,
except if the total number of persons admitted free of charge to a
boxing, kickboxing, or martial arts contest or wrestling exhibition
exceeds 25 percent of the total number of spectators, then a fee of
one dollar ($1) per complimentary ticket or pass used to gain
admission to the contest shall be paid to the commission for each
complimentary ticket or pass that exceeds the numerical total of 25
percent of the total number of spectators.
(c) As used in this section, "person" includes a promoter, club,
individual, corporation, partnership, association, or other
organization, and "wrestling exhibition" means a performance of
wrestling skills and techniques by two or more individuals, to which
admission is charged or which is broadcast or televised, in which the
participating individuals are not required to use their best efforts
in order to win, and for which the winner may have been selected
before the performance commences.
(d) This section shall become operative on January 1, 2006.
SEC. 20. Section 18897.73 of the Business and Professions Code is
amended to read:
18897.73. Every agent contract, endorsement contract, or
professional sports services contract entered into by a student
athlete shall contain, in close proximity to the signature of the
student athlete, a notice in at least 10-point boldface type stating:
"WARNING TO THE STUDENT ATHLETE: WHEN YOU SIGN THIS CONTRACT, YOU
LIKELY WILL IMMEDIATELY AND PERMANENTLY LOSE YOUR ELIGIBILITY TO
COMPETE IN INTERSCHOLASTIC OR INTERCOLLEGIATE SPORTS. YOU MUST GIVE
THE PRINCIPAL, PRESIDENT, OR OTHER CHIEF ADMINISTRATOR OF YOUR
EDUCATIONAL INSTITUTION WRITTEN NOTICE THAT YOU HAVE ENTERED INTO
THIS CONTRACT WITHIN 72 HOURS, OR BEFORE YOU PRACTICE FOR OR
PARTICIPATE IN ANY INTERSCHOLASTIC OR INTERCOLLEGIATE SPORTS EVENT,
WHICHEVER OCCURS FIRST. DO NOT SIGN THIS CONTRACT UNTIL YOU HAVE
READ IT AND FILLED IN ANY BLANK SPACES. YOU MAY CANCEL THIS CONTRACT
BY NOTIFYING THE ATHLETE AGENT, OR OTHER PARTY TO THIS CONTRACT, IN
WRITING OF YOUR DESIRE TO CANCEL NOT LATER THAN THE 15TH DAY AFTER
THE DATE YOU SIGN THIS CONTRACT. HOWEVER, EVEN IF YOU CANCEL THIS
CONTRACT, THE FEDERATION OR ASSOCIATION TO WHICH YOUR EDUCATIONAL
INSTITUTION BELONGS MAY NOT RESTORE YOUR ELIGIBILITY."
SEC. 21. Section 22575 of the Business and Professions Code is
amended to read:
22575. (a) An operator of a commercial Web site or online service
that collects personally identifiable information through the
Internet about individual consumers residing in California who use or
visit its commercial Web site or online service shall conspicuously
post its privacy policy on its Web site, or in the case of an
operator of an online service, make that policy available in
accordance with paragraph (5) of subdivision (b) of Section 22577.
An operator shall be in violation of this subdivision only if the
operator fails to post its policy within 30 days after being notified
of noncompliance.
(b) The privacy policy required by subdivision (a) shall do all of
the following:
(1) Identify the categories of personally identifiable information
that the operator collects through the Web site or online service
about individual consumers who use or visit its commercial Web site
or online service and the categories of third-party persons or
entities with whom the operator may share that personally
identifiable information.
(2) If the operator maintains a process for an individual consumer
who uses or visits its commercial Web site or online service to
review and request changes to any of his or her personally
identifiable information that is collected through the Web site or
online service, provide a description of that process.
(3) Describe the process by which the operator notifies consumers
who use or visit its commercial Web site or online service of
material changes to the operator's privacy policy for that Web site
or online service.
(4) Identify its effective date.
SEC. 22. Section 25503.4 of the Business and Professions Code is
amended to read:
25503.4. (a) Notwithstanding any other provision of this
division, a winegrower, California winegrower's agent, wine importer,
or any director, partner, officer, agent, or representative of that
person, may conduct or participate in, and serve wine at, an
instructional event for consumers held at a retailer's premises
featuring wines produced by or for the winegrower or, imported by the
wine importer, subject to the following conditions:
(1) No premium, gift, free goods, or other thing of value may be
given away in connection with the instructional event by the
winegrower, California winegrower's agent, wine importer, or
retailer, except as authorized by this division.
(2) No alcoholic beverages may be given away in connection with
the instructional event except that wine, taken from barrels or from
tanks, may be sampled at the instructional event. For the purposes
of this section, minimal amounts of the samples provided for tasting
at the instructional event in addition to the wines being featured do
not constitute a thing of value.
(3) No alcoholic beverages may be sold at the instructional event,
except that orders for the sale of wine may be accepted by the
winegrower if the sales transaction is completed at the winegrower's
premises.
(b) Notwithstanding any other provision of this division, a
winegrower, California winegrower's agent, or wine importer, in
advance of an instructional event for consumers being held at a
retailer's premises, may list in an advertisement the name and
address of the retailer, the names of the wines being featured at the
instructional event, and the time, date, and location of, and other
information about, the instructional event, provided:
(1) The advertisement does not also contain the retail price of
the wines.
(2) The listing of the retailer's name and address is the only
reference to the retailer in the advertisement and is relatively
inconspicuous in relation to the advertisement as a whole. Pictures
or illustrations of the retailer's premises and laudatory references
to the retailer in these advertisements are not hereby authorized.
(c) Notwithstanding any other provision of this division, the name
and address of a winegrower, wine importer, or winegrower's agent
licensee, the brand names of wine being featured, and the time, date,
location, and other identifying information of a wine promotional
lecture at retail premises may be listed in advance of the event in
an advertisement of the off-sale or on-sale retail licensee.
(d) Nothing in this section authorizes a winegrower, wine
importer, or winegrower's agent licensee to share in the costs, if
any, of the retailer licensee's advertisement.
(e) Nothing in this section authorizes any person to consume any
alcoholic beverage on any premises licensed with an off-sale retail
license.
SEC. 23. Section 51.10 of the Civil Code is amended to read:
51.10. (a) Section 51 shall be construed to prohibit a business
establishment from discriminating in the sale or rental of housing
based upon age. A business establishment may establish and preserve
housing for senior citizens, pursuant to Section 51.11, except
housing as to which Section 51.11 is preempted by the prohibition in
the federal Fair Housing Amendments Act of 1988 (P.L. 100-430) and
implementing regulations against discrimination on the basis of
familial status.
(b) This section is intended to clarify the holdings in Marina
Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, and O'Connor v. Village
Green Owners Association (1983) 33 Cal.3d 790.
(c) This section shall only apply to the County of Riverside.
SEC. 24. Section 56.26 of the Civil Code is amended to read:
56.26. (a) No person or entity engaged in the business of
furnishing administrative services to programs that provide payment
for health care services shall knowingly use, disclose, or permit its
employees or agents to use or disclose medical information possessed
in connection with performing administrative functions for a
program, except as reasonably necessary in connection with the
administration or maintenance of the program, or as required by law,
or with an authorization.
(b) An authorization required by this section shall be in the same
form as described in Section 56.21, except that "third party
administrator" shall be substituted for "employer" wherever it
appears in Section 56.21.
(c) This section shall not apply to any person or entity that is
subject to the Insurance Information Privacy Act or to Chapter 2
(commencing with Section 56.10) or Chapter 3 (commencing with Section
56.20).
SEC. 25. Section 800.100 of the Civil Code is amended to read:
800.100. (a) When the owner of a floating home marina enters into
a written listing agreement with a licensed real estate broker, as
defined in Article 1 (commencing with Section 10130) of Chapter 2 of
Part 1 of Division 4 of the Business and Professions Code, for the
sale of the marina or offers to sell the marina to any party, the
owner shall provide written notice by first-class mail or by personal
delivery to the president, secretary, and treasurer of the resident
organization, not less than 30 days but no more than one year prior
to entering into any written listing agreement for the sale of the
marina, or making any offer to sell the marina to any party. An
offer to sell a marina shall not be construed as an offer under this
subdivision unless it is initiated by the marina owner or his or her
agent.
(b) An owner of a floating home marina is not required to comply
with subdivision (a) unless the following conditions are met:
(1) The resident organization has first furnished the marina owner
or marina manager a written notice of the name and address of the
president, secretary, and treasurer of the resident organization to
whom the notice of sale shall be given.
(2) The resident organization has first notified the marina owner
or manager in writing that the marina residents are interested in
purchasing the marina. The initial notice by the resident
organization shall be made prior to a written listing or offer to
sell the marina by the marina owner, and the resident organization
shall give subsequent notice once each year thereafter that the
marina residents are interested in purchasing the marina.
(3) The resident organization has furnished the marina owner or
marina manager a written notice, within five days, of any change in
the name or address of the officers of the resident organization to
whom the notice of sale shall be given.
(c) Nothing in this section affects the validity of title to real
property transferred in violation of this section, although a
violation shall subject the seller to civil action pursuant to
Article 9 (commencing with Section 800.200) by homeowner residents of
the marina or by the resident organization.
(d) Nothing in this section affects the ability of a licensed real
estate broker to collect a commission pursuant to an executed
contract between the broker and the floating home marina owner.
(e) This section does not apply to any of the following:
(1) Any sale or other transfer by a marina owner who is a natural
person to any relation specified in Section 6401 or 6402 of the
Probate Code.
(2) Any transfer by gift, devise, or operation of law.
(3) Any transfer by a corporation to an affiliate. As used in
this paragraph, "affiliate" means any shareholder of the transferring
corporation, any corporation or entity owned or controlled, directly
or indirectly, by the transferring corporation, or any other
corporation or entity controlled, directly or indirectly, by any
shareholder of the transferring corporation.
(4) Any transfer by a partnership to any of its partners.
(5) Any conveyance resulting from the judicial or nonjudicial
foreclosure of a mortgage or deed of trust encumbering a floating
home marina or any deed given in lieu of such a foreclosure.
(6) Any sale or transfer between or among joint tenants or tenants
in common owning a floating home marina.
(7) The purchase of a floating home marina by a governmental
entity under its powers of eminent domain.
SEC. 26. Section 1102.16 of the Civil Code is amended to read:
1102.16. The disclosure of the existence of any window security
bars and any safety release mechanism on those window security bars
shall be made pursuant to Section 1102.6 or 1102.6a of the Civil
Code.
SEC. 27. Section 1103 of the Civil Code is amended to read:
1103. (a) Except as provided in Section 1103.1, this article
applies to the transfer by sale, exchange, installment land sale
contract, as defined in Section 2985, lease with an option to
purchase, any other option to purchase, or ground lease coupled with
improvements, of any real property described in subdivision (c), or
residential stock cooperative, improved with or consisting of not
less than one nor more than four dwelling units.
(b) Except as provided in Section 1103.1, this article shall apply
to a resale transaction entered into on or after January 1, 2000,
for a manufactured home, as defined in Section 18007 of the Health
and Safety Code, that is classified as personal property intended for
use as a residence, or a mobilehome, as defined in Section 18008 of
the Health and Safety Code, that is classified as personal property
intended for use as a residence, if the real property on which the
manufactured home or mobilehome is located is real property described
in subdivision (c).
(c) This article shall apply to the transactions described in
subdivisions (a) and (b) only if the transferor or his or her agent
is required by one or more of the following to disclose the property'
s location within a hazard zone:
(1) A person who is acting as an agent for a transferor of real
property that is located within a special flood hazard area (any type
Zone "A" or "V") designated by the Federal Emergency Management
Agency, or the transferor if he or she is acting without an agent,
shall disclose to any prospective transferee the fact that the
property is located within a special flood hazard area if either:
(A) The transferor, or the transferor's agent, has actual
knowledge that the property is within a special flood hazard area.
(B) The local jurisdiction has compiled a list, by parcel, of
properties that are within the special flood hazard area and a notice
has been posted at the offices of the county recorder, county
assessor, and county planning agency that identifies the location of
the parcel list.
(2) A person who is acting as an agent for a transferor of real
property that is located within an area of potential flooding
designated pursuant to Section 8589.5 of the Government Code, or the
transferor if he or she is acting without an agent, shall disclose to
any prospective transferee the fact that the property is located
within an area of potential flooding if either:
(A) The transferor, or the transferor's agent, has actual
knowledge that the property is within an inundation area.
(B) The local jurisdiction has compiled a list, by parcel, of
properties that are within the inundation area and a notice has been
posted at the offices of the county recorder, county assessor, and
county planning agency that identifies the location of the parcel
list.
(3) A transferor of real property that is located within a very
high fire hazard severity zone, designated pursuant to Section 51178
of the Government Code, shall disclose to any prospective transferee
the fact that the property is located within a very high fire hazard
severity zone and is subject to the requirements of Section 51182 of
the Government Code if either:
(A) The transferor, or the transferor's agent, has actual
knowledge that the property is within a very high fire hazard
severity zone.
(B) A map that includes the property has been provided to the
local agency pursuant to Section 51178 of the Government Code and a
notice has been posted at the offices of the county recorder, county
assessor, and county planning agency that identifies the location of
the map and any information regarding changes to the map received by
the local agency.
(4) A person who is acting as an agent for a transferor of real
property that is located within an earthquake fault zone, designated
pursuant to Section 2622 of the Public Resources Code, or the
transferor if he or she is acting without an agent, shall disclose to
any prospective transferee the fact that the property is located
within a delineated earthquake fault zone if either:
(A) The transferor, or the transferor's agent, has actual
knowledge that the property is within a delineated earthquake fault
zone.
(B) A map that includes the property has been provided to the city
or county pursuant to Section 2622 of the Public Resources Code and
a notice has been posted at the offices of the county recorder,
county assessor, and county planning agency that identifies the
location of the map and any information regarding changes to the map
received by the county.
(5) A person who is acting as an agent for a transferor of real
property that is located within a seismic hazard zone, designated
pursuant to Section 2696 of the Public Resources Code, or the
transferor if he or she is acting without an agent, shall disclose to
any prospective transferee the fact that the property is located
within a seismic hazard zone if either:
(A) The transferor, or the transferor's agent, has actual
knowledge that the property is within a seismic hazard zone.
(B) A map that includes the property has been provided to the city
or county pursuant to Section 2696 of the Public Resources Code and
a notice has been posted at the offices of the county recorder,
county assessor, and county planning agency that identifies the
location of the map and any information regarding changes to the map
received by the county.
(6) A transferor of real property that is located within a state
responsibility area determined by the board, pursuant to Section 4125
of the Public Resources Code, shall disclose to any prospective
transferee the fact that the property is located within a wildland
area that may contain substantial forest fire risks and hazards and
is subject to the requirements of Section 4291 if either:
(A) The transferor, or the transferor's agent, has actual
knowledge that the property is within a wildland fire zone.
(B) A map that includes the property has been provided to the city
or county pursuant to Section 4125 of the Public Resources Code and
a notice has been posted at the offices of the county recorder,
county assessor, and county planning agency that identifies the
location of the map and any information regarding changes to the map
received by the county.
(d) Any waiver of the requirements of this article is void as
against public policy.
SEC. 28. Section 1542 of the Civil Code is amended to read:
1542. A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her favor at the
time of executing the release, which if known by him or her must
have materially affected his or her settlement with the debtor.
SEC. 29. Section 1747.8 of the Civil Code is amended and
renumbered to read:
1747.08. (a) Except as provided in subdivision (c), no person,
firm, partnership, association, or corporation which accepts credit
cards for the transaction of business shall do either of the
following:
(1) Request, or require as a condition to accepting the credit
card as payment in full or in part for goods or services, the
cardholder to write any personal identification information upon the
credit card transaction form or otherwise.
(2) Request, or require as a condition to accepting the credit
card as payment in full or in part for goods or services, the
cardholder to provide personal identification information, which the
person, firm, partnership, association, or corporation accepting the
credit card writes, causes to be written, or otherwise records upon
the credit card transaction form or otherwise.
(3) Utilize, in any credit card transaction, a credit card form
which contains preprinted spaces specifically designated for filling
in any personal identification information of the cardholder.
(b) For purposes of this section "personal identification
information," means information concerning the cardholder, other than
information set forth on the credit card, and including, but not
limited to, the cardholder's address and telephone number.
(c) Subdivision (a) does not apply in the following instances:
(1) If the credit card is being used as a deposit to secure
payment in the event of default, loss, damage, or other similar
occurrence.
(2) Cash advance transactions.
(3) If the person, firm, partnership, association, or corporation
accepting the credit card is contractually obligated to provide
personal identification information in order to complete the credit
card transaction or is obligated to collect and record the personal
identification information by federal law or regulation.
(4) If personal identification information is required for a
special purpose incidental but related to the individual credit card
transaction, including, but not limited to, information relating to
shipping, delivery, servicing, or installation of the purchased
merchandise, or for special orders.
(d) This section does not prohibit any person, firm, partnership,
association, or corporation from requiring the cardholder, as a
condition to accepting the credit card as payment in full or in part
for goods or services, to provide reasonable forms of positive
identification, which may include a driver's license or a California
state identification card, or where one of these is not available,
another form of photo identification, provided that none of the
information contained thereon is written or recorded on the credit
card transaction form or otherwise. If the cardholder pays for the
transaction with a credit card number and does not make the credit
card available upon request to verify the number, the cardholder's
driver's license number or identification card number may be recorded
on the credit card transaction form or otherwise.
(e) Any person who violates this section shall be subject to a
civil penalty not to exceed two hundred fifty dollars ($250) for the
first violation and one thousand dollars ($1,000) for each subsequent
violation, to be assessed and collected in a civil action brought by
the person paying with a credit card, by the Attorney General, or by
the district attorney or city attorney of the county or city in
which the violation occurred. However, no civil penalty shall be
assessed for a violation of this section if the defendant shows by a
preponderance of the evidence that the violation was not intentional
and resulted from a bona fide error made notwithstanding the
defendant's maintenance of procedures reasonably adopted to avoid
that error. When collected, the civil penalty shall be payable, as
appropriate, to the person paying with a credit card who brought the
action, or to the general fund of whichever governmental entity
brought the action to assess the civil penalty.
(f) The Attorney General, or any district attorney or city
attorney within his or her respective jurisdiction, may bring an
action in the superior court in the name of the people of the State
of California to enjoin violation of subdivision (a) and, upon notice
to the defendant of not less than five days, to temporarily restrain
and enjoin the violation. If it appears to the satisfaction of the
court that the defendant has, in fact, violated subdivision (a), the
court may issue an injunction restraining further violations, without
requiring proof that any person has been damaged by the violation.
In these proceedings, if the court finds that the defendant has
violated subdivision (a), the court may direct the defendant to pay
any or all costs incurred by the Attorney General, district attorney,
or city attorney in seeking or obtaining injunctive relief pursuant
to this subdivision.
(g) Actions for collection of civil penalties under subdivision
(e) and for injunctive relief under subdivision (f) may be
consolidated.
(h) The changes made to this section by Assembly Bill 1316 of the
1995-96 Regular Session of the Legislature apply only to credit card
transactions entered into on and after January 1, 1996. Nothing in
those changes shall be construed to affect any civil action which was
filed before January 1, 1996.
SEC. 30. Section 1747.9 of the Civil Code is amended and
renumbered to read:
1747.09. (a) Except as provided in this section, no person, firm,
partnership, association, corporation, or limited liability company
that accepts credit cards for the transaction of business shall print
more than the last five digits of the credit card account number or
the expiration date upon any receipt provided to the cardholder.
(b) This section shall apply only to receipts that are
electronically printed and shall not apply to transactions in which
the sole means of recording the person's credit card number is by
handwriting or by an imprint or copy of the credit card.
(c) This section shall become operative on January 1, 2004, with
respect to any cash register or other machine or device that
electronically prints receipts for credit card transactions that is
in use before January 1, 2001.
(d) This section shall become operative on January 1, 2001, with
respect to any cash register or other machine or device that
electronically prints receipts for credit card transactions that is
first put into use on or after January 1, 2001.
SEC. 31. Section 1785.30 of the Civil
Code is amended to read:
1785.30. Upon notification of the results of a consumer credit
reporting agency's reinvestigation pursuant to Section 1785.16, a
consumer may make a written demand on any person furnishing
information to the consumer credit reporting agency to correct any
information that the consumer believes to be inaccurate. The person
upon whom the written demand is made shall acknowledge the demand
within 30 days. The consumer may require the consumer credit
reporting agency to indicate on any subsequent reports issued during
the dispute that the item or items of information are in dispute. If
upon investigation the information is found to be inaccurate or
incorrect, the consumer may require the consumer credit reporting
agency to delete or correct the item or items of information within a
reasonable time. If within 90 days the consumer credit reporting
agency does not receive any information from the person requested to
furnish the same or any communication relative to this information
from this person, the consumer credit reporting agency shall delete
the information from the report.
SEC. 32. Section 1786.24 of the Civil Code is amended to read:
1786.24. (a) If the completeness or accuracy of any item of
information contained in his or her file is disputed by a consumer,
and the dispute is conveyed directly to the investigative consumer
reporting agency by the consumer, the investigative consumer
reporting agency shall, without charge, reinvestigate and record the
current status of the disputed information or delete the item from
the file in accordance with subdivision (c), before the end of the
30-day period beginning on the date on which the agency receives the
notice of the dispute from the consumer.
(b) The agency shall notify any person who provided information in
dispute at the address and in the manner specified by that person.
The notice shall include all relevant information regarding the
dispute that the investigative consumer reporting agency has received
from the consumer. The agency shall also promptly provide to the
person who provided the information in dispute all relevant
information regarding the dispute that is received by the agency from
the consumer during the reinvestigation.
(c) In conducting a reinvestigation, the investigative consumer
reporting agency shall review and consider all relevant information
submitted by the consumer with respect to the disputed item of
information.
(d) Notwithstanding subdivision (a), an investigative consumer
reporting agency may terminate a reinvestigation of information
disputed by a consumer if the investigative consumer reporting agency
reasonably determines that the dispute is frivolous or irrelevant,
including by reason of a failure by a consumer to provide sufficient
information to investigate the disputed information. Upon making a
determination that a dispute is frivolous or irrelevant, the
investigative consumer reporting agency shall notify the consumer, by
mail or, if authorized by the consumer for that purpose, by any
other means available to the agency. In this notification, the
investigative consumer reporting agency shall state the specific
reasons why it has determined that the consumer's dispute is
frivolous or irrelevant and provide a description of any information
required to investigate the disputed information, that may consist of
a standardized form describing the general nature of the required
information.
(e) If a reinvestigation is made and, after reinvestigation, the
disputed item of information is found to be inaccurate, incomplete,
or cannot be verified by the evidence submitted, the investigative
consumer reporting agency shall promptly delete that information from
the consumer's file or modify the information, as appropriate, based
on the results of the reinvestigation, and shall notify the consumer
that the information has been deleted or modified. The consumer
reporting agency shall also notify any and all sources from which the
disputed information was obtained and inform them in writing of the
reasons and results of the reinvestigation, and send a copy of this
notification to the consumer. In accordance with subdivision (b) of
Section 1786.10, the copy of the notification sent to the consumer
need not reveal the identity of the source of information, unless
otherwise required by law.
(f) No information may be reinserted in the file of a consumer
after having been deleted pursuant to this section, unless the person
who furnished the information verifies that the information is
complete and accurate. If any information deleted from the file of a
consumer is reinserted in the file, the investigative consumer
reporting agency shall promptly notify the consumer of the
reinsertion in writing or, if authorized by the consumer for that
purpose, by any other means available to the agency. As part of, or
in addition to, this notice, the investigative consumer reporting
agency shall provide to the consumer in writing (1) a statement that
the disputed information has been reinserted, (2) the name, address,
and telephone number of any furnisher of information contacted or
that contacted the investigative consumer reporting agency in
connection with the reinsertion, and the telephone number of the
furnisher, if reasonably available, and (3) a notice that the
consumer has the right to a reinvestigation of the information
reinserted by the investigative consumer reporting agency and to add
a statement to his or her file disputing the accuracy or completeness
of the information.
(g) An investigative consumer reporting agency shall provide
notice to the consumer of the results of any reinvestigation under
this section by mail or, if authorized by the consumer for that
purpose, by other means available to the agency. The notice shall
include (1) a statement that the reinvestigation is completed, (2) an
investigative consumer report that is based on the consumer's file
as that file is revised as a result of the reinvestigation, (3) a
description or indication of any changes made in the investigative
consumer report as a result of those revisions to the consumer's
file, (4) a notice that, if requested by the consumer, a description
of the procedure used to determine the accuracy and completeness of
the information shall be provided to the consumer by the
investigative consumer reporting agency, including the name, business
address, and telephone number of any furnisher of information
contacted in connection with that information, (5) a notice that the
consumer has the right to add a statement to the consumer's file
disputing the accuracy or completeness of the information, and (6) a
notice that the consumer has the right to request that the
investigative consumer reporting agency furnish notifications under
subdivision (k).
(h) The presence of information in the consumer's file that
contradicts the contention of the consumer shall not, in and of
itself, constitute reasonable grounds for believing the dispute is
frivolous or irrelevant.
(i) If the investigative consumer reporting agency determines that
the dispute is frivolous or irrelevant, or if the reinvestigation
does not resolve the dispute, or if the information is reinserted
into the file of a consumer pursuant to subdivision (f), the consumer
may file a brief statement setting forth the nature of the dispute.
The investigative consumer reporting agency may limit these
statements to not more than 500 words if it provides the consumer
with assistance in writing a clear summary of the dispute.
(j) If a statement of dispute is filed, the investigative consumer
reporting agency shall, in any subsequent investigative consumer
report containing the information in question, clearly note that the
information is disputed by the consumer and shall include in the
report either the statement of the consumer or a clear and accurate
summary thereof.
(k) Following the deletion of information from the file of a
consumer pursuant to this section, or following the filing of a
dispute pursuant to subdivision (i), the investigative consumer
reporting agency shall, at the request of the consumer, furnish
notification that the item of information has been deleted or that
the item of information is disputed. In the case of disputed
information, the notification shall include the statement or summary
of the dispute filed pursuant to subdivision (i). This notification
shall be furnished to any person who has, within two years prior to
the deletion or the filing of the dispute, received an investigative
consumer report concerning the consumer for employment purposes, or
who has, within one year of the deletion or the filing of the
dispute, received an investigative consumer report concerning the
consumer for any other purpose, if these investigative consumer
reports contained the deleted or disputed information, unless the
consumer specifically requests in writing that this notification not
be given to all persons or to any specified persons. The
investigative consumer reporting agency shall clearly and
conspicuously disclose to the consumer his or her rights to make a
request that this notification not be made.
(l) An investigative consumer reporting agency shall maintain
reasonable procedures designed to prevent the reappearance in the
file of a consumer and in investigative consumer reports information
that has been deleted pursuant to this section and not reinserted
pursuant to subdivision (f).
(m) If the dispute of a consumer is resolved by deletion of the
disputed information within three business days, beginning with the
day the investigative consumer reporting agency receives notice of
the dispute in accordance with subdivision (a), the investigative
consumer reporting agency is exempt from requirements for further
action under subdivisions (g), (i), and (j), if the agency: (1)
provides prompt notice of the deletion to the consumer by telephone,
(2) provides written confirmation of the deletion and a copy of an
investigative consumer report of the consumer that is based on the
file of a consumer after the deletion, and (3) includes, in the
telephone notice or in a written notice that accompanies the
confirmation and report, a statement of the consumer's right to
request under subdivision (k) that the agency not furnish
notifications under that subdivision.
(n) Any investigative consumer reporting agency that compiles and
maintains files on consumers on a nationwide basis, as defined in the
federal Fair Credit Reporting Act, as amended (15 U.S.C. Sec. 1681
et seq.), shall implement an automated system through which
furnishers of information to that agency may report the results of a
reinvestigation that finds incomplete or inaccurate information in
the file of a consumer to other investigative consumer reporting
agencies.
(o) All actions to be taken by an investigative consumer reporting
agency under this section are governed by the applicable time
periods specified in Section 611 of the federal Fair Credit Reporting
Act, as amended (15 U.S.C. Sec. 1681i).
SEC. 33. Section 1789.21 of the Civil Code is amended to read:
1789.21. (a) Any buyer injured by a violation of this title or by
the credit services organization's breach of a contract subject to
this title may bring any action for recovery of damages, or for
injunctive relief, or both. Judgment shall be entered for actual
damages, but in no case less than the amount paid by the buyer to the
credit services organization, plus reasonable attorney's fees and
costs. An award, if the trial court deems it proper, may be entered
for punitive damages.
(b) Any person, including, but not limited to, a consumer credit
reporting agency, as defined in subdivision (d) of Section 1785.3,
and any consumer of, or user of, a consumer credit report under the
Consumer Credit Reporting Agencies Act (Title 1.6 (commencing with
Section 1785.1)), and any furnisher of credit information under the
Consumer Credit Reporting Agencies Act, may bring an action for the
recovery of damages or for injunctive relief, or both, for a
violation of this title. Any person bringing such an action who
prevails in the action shall be entitled to reasonable attorney's
fees and costs.
SEC. 34. Section 1798.83 of the Civil Code is amended to read:
1798.83. (a) Except as otherwise provided in subdivision (d), if
a business has an established business relationship with a customer
and has within the immediately preceding calendar year disclosed
personal information that corresponds to any of the categories of
personal information set forth in paragraph (6) of subdivision (e) to
third parties, and if the business knows or reasonably should know
that the third parties used the personal information for the third
parties' direct marketing purposes, that business shall, after the
receipt of a written or electronic mail request, or, if the business
chooses to receive requests by toll-free telephone or facsimile
numbers, a telephone or facsimile request from the customer, provide
all of the following information to the customer free of charge:
(1) In writing or by electronic mail, a list of the categories set
forth in paragraph (6) of subdivision (e) that correspond to the
personal information disclosed by the business to third parties for
the third parties' direct marketing purposes during the immediately
preceding calendar year.
(2) In writing or by electronic mail, the names and addresses of
all of the third parties that received personal information from the
business for the third parties' direct marketing purposes during the
preceding calendar year and, if the nature of the third parties'
business cannot reasonably be determined from the third parties'
name, examples of the products or services marketed, if known to the
business, sufficient to give the customer a reasonable indication of
the nature of the third parties' business.
(b) (1) A business required to comply with this section shall
designate a mailing address, electronic mail address, or, if the
business chooses to receive requests by telephone or facsimile, a
toll-free telephone or facsimile number, to which customers may
deliver requests pursuant to subdivision (a). A business required to
comply with this section shall, at its election, do at least one of
the following:
(A) Notify all agents and managers who directly supervise
employees who regularly have contact with customers of the designated
addresses or numbers or the means to obtain those addresses or
numbers and instruct those employees that customers who inquire about
the business' privacy practices or the business' compliance with
this section shall be informed of the designated addresses or numbers
or the means to obtain the addresses or numbers.
(B) Add to the home page of its Web site, a link either to a page
titled "Your Privacy Rights" or to add the words "Your Privacy
Rights," to the home page's link to the business' privacy policy. If
the business elects to add the words "Your Privacy Rights" to the
link to the business' privacy policy, the words "Your Privacy Rights"
shall be in the same style and size of the link to the business'
privacy policy. If the business does not display a link to its
privacy policy on the home page of its Web site, or does not have a
privacy policy, the words "Your Privacy Rights" shall be written in
larger type than the surrounding text, or in contrasting type, font,
or color to the surrounding text of the same size, or set off from
the surrounding text of the same size by symbols or other marks that
call attention to the language. The first page of the link shall
describe a customer's rights pursuant to this section and shall
provide the designated mailing address, e-mail address, as required,
or toll-free telephone number or facsimile number, as appropriate.
If the business elects to add the words "Your California Privacy
Rights" to the home page's link to the business' privacy policy in a
manner that complies with this subdivision, and the first page of the
link describes a customer's rights pursuant to this section, and
provides the designated mailing address, electronic mailing address,
as required, or toll-free telephone or facsimile number, as
appropriate, the business need not respond to requests that are not
received at one of the designated addresses or numbers.
(C) Make the designated addresses or numbers, or means to obtain
the designated addresses or numbers, readily available upon request
of a customer at every place of business in California where the
business or its agents regularly have contact with customers.
The response to a request pursuant to this section received at one
of the designated addresses or numbers shall be provided within 30
days. Requests received by the business at other than one of the
designated addresses or numbers shall be provided within a reasonable
period, in light of the circumstances related to how the request was
received, but not to exceed 150 days from the date received.
(2) A business that is required to comply with this section and
Section 6803 of Title 15 of the United States Code may comply with
this section by providing the customer the disclosure required by
Section 6803 of Title 15 of the United States Code, but only if the
disclosure also complies with this section.
(3) A business that is required to comply with this section is not
obligated to provide information associated with specific
individuals and may provide the information required by this section
in standardized format.
(c) (1) A business that is required to comply with this section is
not obligated to do so in response to a request from a customer more
than once during the course of any calendar year. A business with
fewer than 20 full-time or part-time employees is exempt from the
requirements of this section.
(2) If a business that is required to comply with this section
adopts and discloses to the public, in its privacy policy, a policy
of not disclosing personal information of customers to third parties
for the third parties' direct marketing purposes unless the customer
first affirmatively agrees to that disclosure, or of not disclosing
the personal information of customers to third parties for the third
parties' direct marketing purposes if the customer has exercised an
option that prevents that information from being disclosed to third
parties for those purposes, as long as the business maintains and
discloses the policies, the business may comply with subdivision (a)
by notifying the customer of his or her right to prevent disclosure
of personal information, and providing the customer with a cost-free
means to exercise that right.
(d) The following are among the disclosures not deemed to be
disclosures of personal information by a business for a third parties'
direct marketing purposes for purposes of this section:
(1) Disclosures between a business and a third party pursuant to
contracts or arrangements pertaining to any of the following:
(A) The processing, storage, management, or organization of
personal information, or the performance of services on behalf of the
business during which personal information is disclosed, if the
third party that processes, stores, manages, or organizes the
personal information does not use the information for a third party's
direct marketing purposes and does not disclose the information to
additional third parties for their direct marketing purposes.
(B) Marketing products or services to customers with whom the
business has an established business relationship where, as a part of
the marketing, the business does not disclose personal information
to third parties for the third parties' direct marketing purposes.
(C) Maintaining or servicing accounts, including credit accounts
and disclosures pertaining to the denial of applications for credit
or the status of applications for credit and processing bills or
insurance claims for payment.
(D) Public record information relating to the right, title, or
interest in real property or information relating to property
characteristics, as defined in Section 408.3 of the Revenue and
Taxation Code, obtained from a governmental agency or entity or from
a multiple listing service, as defined in Section 1087, and not
provided directly by the customer to a business in the course of an
established business relationship.
(E) Jointly offering a product or service pursuant to a written
agreement with the third party that receives the personal
information, provided that all of the following requirements are met:
(i) The product or service offered is a product or service of, and
is provided by, at least one of the businesses that is a party to
the written agreement.
(ii) The product or service is jointly offered, endorsed, or
sponsored by, and clearly and conspicuously identifies for the
customer, the businesses that disclose and receive the disclosed
personal information.
(iii) The written agreement provides that the third party that
receives the personal information is required to maintain the
confidentiality of the information and is prohibited from disclosing
or using the information other than to carry out the joint offering
or servicing of a product or service that is the subject of the
written agreement.
(2) Disclosures to or from a consumer reporting agency of a
customer's payment history or other information pertaining to
transactions or experiences between the business and a customer if
that information is to be reported in, or used to generate, a
consumer report as defined in subdivision (d) of Section 1681a of
Title 15 of the United States Code, and use of that information is
limited by the federal Fair Credit Reporting Act (15 U.S.C. Sec.
1681 et seq.).
(3) Disclosures of personal information by a business to a third
party financial institution solely for the purpose of the business
obtaining payment for a transaction in which the customer paid the
business for goods or services with a check, credit card, charge
card, or debit card, if the customer seeks the information required
by subdivision (a) from the business obtaining payment, whether or
not the business obtaining payment knows or reasonably should know
that the third party financial institution has used the personal
information for its direct marketing purposes.
(4) Disclosures of personal information between a licensed agent
and its principal, if the personal information disclosed is necessary
to complete, effectuate, administer, or enforce transactions between
the principal and the agent, whether or not the licensed agent or
principal also uses the personal information for direct marketing
purposes, if that personal information is used by each of them solely
to market products and services directly to customers with whom both
have established business relationships as a result of the principal
and agent relationship.
(5) Disclosures of personal information between a financial
institution and a business that has a private label credit card,
affinity card, retail installment contract, or cobranded card program
with the financial institution, if the personal information
disclosed is necessary for the financial institution to maintain or
service accounts on behalf of the business with which it has a
private label credit card, affinity card, retail installment
contract, or branded card program, or to complete, effectuate,
administer, or enforce customer transactions or transactions between
the institution and the business, whether or not the institution or
the business also uses the personal information for direct marketing
purposes, if that personal information is used solely to market
products and services directly to customers with whom both the
business and the financial institution have established business
relationships as a result of the private label credit card, affinity
card, retail installment contract, or cobranded card program.
(e) For purposes of this section:
(1) "Customer" means an individual who is a resident of California
who provides personal information to a business during the creation
of, or throughout the duration of, an established business
relationship if the business relationship is primarily for personal,
family, or household purposes.
(2) "Direct marketing purposes" means the use of personal
information to solicit or induce a purchase, rental, lease, or
exchange of products, goods, property, or services directly to
individuals by means of the mail, telephone, or electronic mail for
their personal, family, or household purposes. The sale, rental,
exchange, or lease of personal information for consideration to
businesses is a direct marketing purpose of the business that sells,
rents, exchanges, or obtains consideration for the personal
information. "Direct marketing purposes" does not include the use of
personal information (A) by bona fide tax exempt charitable or
religious organizations to solicit charitable contributions, (B) to
raise funds from and communicate with individuals regarding politics
and government, (C) by a third party when the third party receives
personal information solely as a consequence of having obtained for
consideration permanent ownership of accounts that might contain
personal information, or (D) by a third party when the third party
receives personal information solely as a consequence of a single
transaction where, as a part of the transaction, personal information
had to be disclosed in order to effectuate the transaction.
(3) "Disclose" means to disclose, release, transfer, disseminate,
or otherwise communicate orally, in writing, or by electronic or any
other means to any third party.
(4) "Employees who regularly have contact with customers" means
employees whose contact with customers is not incidental to their
primary employment duties, and whose duties do not predominantly
involve ensuring the safety or health of the businesses customers.
It includes, but is not limited to, employees whose primary
employment duties are as cashier, clerk, customer service, sales, or
promotion. It does not, by way of example, include employees whose
primary employment duties consist of food or beverage preparation or
service, maintenance and repair of the business' facilities or
equipment, direct involvement in the operation of a motor vehicle,
aircraft, watercraft, amusement ride, heavy machinery or similar
equipment, security, or participation in a theatrical, literary,
musical, artistic, or athletic performance or contest.
(5) "Established business relationship" means a relationship
formed by a voluntary, two-way communication between a business and
a customer, with or
without an exchange of consideration, for the purpose of purchasing,
renting, or leasing real or personal property, or any interest
therein, or obtaining a product or service from the business, if the
relationship is ongoing and has not been expressly terminated by the
business or the customer, or if the relationship is not ongoing, but
is solely established by the purchase, rental, or lease of real or
personal property from a business, or the purchase of a product or
service, no more than 18 months have elapsed from the date of the
purchase, rental, or lease.
(6) (A) The categories of personal information required to be
disclosed pursuant to paragraph (1) of subdivision (a) are all of the
following:
(i) Name and address.
(ii) Electronic mail address.
(iii) Age or date of birth.
(iv) Names of children.
(v) Electronic mail or other addresses of children.
(vi) Number of children.
(vii) The age or gender of children.
(viii) Height.
(ix) Weight.
(x) Race.
(xi) Religion.
(xii) Occupation.
(xiii) Telephone number.
(xiv) Education.
(xv) Political party affiliation.
(xvi) Medical condition.
(xvii) Drugs, therapies, or medical products or equipment used.
(xviii) The kind of product the customer purchased, leased, or
rented.
(xix) Real property purchased, leased, or rented.
(xx) The kind of service provided.
(xxi) Social security number.
(xxii) Bank account number.
(xxiii) Credit card number.
(xxiv) Debit card number.
(xxv) Bank or investment account, debit card, or credit card
balance.
(xxvi) Payment history.
(xxvii) Information pertaining to the customer's creditworthiness,
assets, income, or liabilities.
(B) If a list, description, or grouping of customer names or
addresses is derived using any of these categories, and is disclosed
to a third party for direct marketing purposes in a manner that
permits the third party to identify, determine, or extrapolate any
other personal information from which the list was derived, and that
personal information when it was disclosed identified, described, or
was associated with an individual, the categories set forth in this
subdivision that correspond to the personal information used to
derive the list, description, or grouping shall be considered
personal information for purposes of this section.
(7) "Personal information" as used in this section means any
information that when it was disclosed identified, described, or was
able to be associated with an individual and includes all of the
following:
(A) An individual's name and address.
(B) Electronic mail address.
(C) Age or date of birth.
(D) Names of children.
(E) Electronic mail or other addresses of children.
(F) Number of children.
(G) The age or gender of children.
(H) Height.
(I) Weight.
(J) Race.
(K) Religion.
(L) Occupation.
(M) Telephone number.
(N) Education.
(O) Political party affiliation.
(P) Medical condition.
(Q) Drugs, therapies, or medical products or equipment used.
(R) The kind of product the customer purchased, leased, or rented.
(S) Real property purchased, leased, or rented.
(T) The kind of service provided.
(U) Social security number.
(V) Bank account number.
(W) Credit card number.
(X) Debit card number.
(Y) Bank or investment account, debit card, or credit card
balance.
(Z) Payment history.
(AA) Information pertaining to creditworthiness, assets, income,
or liabilities.
(8) "Third party" or "third parties" means one or more of the
following:
(A) A business that is a separate legal entity from the business
that has an established business relationship with a customer.
(B) A business that has access to a database that is shared among
businesses, if the business is authorized to use the database for
direct marketing purposes, unless the use of the database is exempt
from being considered a disclosure for direct marketing purposes
pursuant to subdivision (d).
(C) A business not affiliated by a common ownership or common
corporate control with the business required to comply with
subdivision (a).
(f) (1) Disclosures of personal information for direct marketing
purposes between affiliated third parties that share the same brand
name are exempt from the requirements of paragraph (1) of subdivision
(a) unless the personal information disclosed corresponds to one of
the following categories, in which case the customer shall be
informed of those categories listed in this subdivision that
correspond to the categories of personal information disclosed for
direct marketing purposes and the third party recipients of personal
information disclosed for direct marketing purposes pursuant to
paragraph (2) of subdivision (a):
(A) Number of children.
(B) The age or gender of children.
(C) Electronic mail or other addresses of children.
(D) Height.
(E) Weight.
(F) Race.
(G) Religion.
(H) Telephone number.
(I) Medical condition.
(J) Drugs, therapies, or medical products or equipment used.
(K) Social security number.
(L) Bank account number.
(M) Credit card number.
(N) Debit card number.
(O) Bank or investment account, debit card, or credit card
balance.
(2) If a list, description, or grouping of customer names or
addresses is derived using any of these categories, and is disclosed
to a third party or third parties sharing the same brand name for
direct marketing purposes in a manner that permits the third party to
identify, determine, or extrapolate the personal information from
which the list was derived, and that personal information when it was
disclosed identified, described, or was associated with an
individual, any other personal information that corresponds to the
categories set forth in this subdivision used to derive the list,
description, or grouping shall be considered personal information for
purposes of this section.
(3) If a business discloses personal information for direct
marketing purposes to affiliated third parties that share the same
brand name, the business that discloses personal information for
direct marketing purposes between affiliated third parties that share
the same brand name may comply with the requirements of paragraph
(2) of subdivision (a) by providing the overall number of affiliated
companies that share the same brand name.
(g) The provisions of this section are severable. If any
provision of this section or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.
(h) This section does not apply to a financial institution that is
subject to the California Financial Information Privacy Act
(Division 1.2 (commencing with Section 4050) of the Financial Code)
if the financial institution is in compliance with Sections 4052,
4052.5, 4053, 4053.5 and 4054.6 of the Financial Code, as those
sections read when they were chaptered on August 28, 2003, and as
subsequently amended by the Legislature or by initiative.
(i) This section shall become operative on January 1, 2005.
SEC. 35. Section 1798.85 of the Civil Code is amended to read:
1798.85. (a) Except as provided in subdivisions (b), (h), and
(i), a person or entity may 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 Internet 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 paragraph, social security numbers may
be included in applications and forms sent by mail, including
documents sent as part of an application or enrollment process, or to
establish, amend, or terminate an account, contract, or policy, or
to confirm the accuracy of the social security number. A social
security number that is permitted to be mailed under this section may
not be printed, in whole or in part, on a postcard or other mailer
not requiring an envelope, or visible on the envelope or without the
envelope having been opened.
(b) Except as provided in subdivision (e), a person or entity 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, and a state or local agency that has used, prior
to January 1, 2004, 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
January 1, 2004, 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, 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)
is implemented within 30 days of the receipt of the request. There
may not be a fee or charge for implementing the request.
(4) The person or entity does not deny services to an individual
because the individual makes a written request pursuant to this
subdivision.
(c) 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.
(d) 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, Article 9 (commencing with Section 11120) of Chapter 1 of Part 1
of Division 3 of Title 2 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.
(e) (1) In the case of a health care service plan, a provider of
health care, an insurer or a pharmacy benefits manager, a contractor
as defined in Section 56.05, or the provision by any person or entity
of administrative or other services relative to health care or
insurance products or services, including third-party administration
or administrative services only, this section shall become operative
in the following manner:
(A) On or before January 1, 2003, the entities listed in paragraph
(1) of subdivision (e) shall comply with paragraphs (1), (3), (4),
and (5) of subdivision (a) as these requirements pertain to
individual policyholders or individual contractholders.
(B) On or before January 1, 2004, the entities listed in paragraph
(1) shall comply with paragraphs (1) to (5), inclusive, of
subdivision (a) as these requirements pertain to new individual
policyholders or new individual contractholders and new groups,
including new groups administered or issued on or after January 1,
2004.
(C) On or before July 1, 2004, the entities listed in paragraph
(1) shall comply with paragraphs (1) to (5), inclusive, of
subdivision (a) for all individual policyholders and individual
contractholders, for all groups, and for all enrollees of the Healthy
Families and Medi-Cal programs, except that for individual
policyholders, individual contractholders, and groups in existence
prior to January 1, 2004, the entities listed in paragraph (1) shall
comply upon the renewal date of the policy, contract, or group on or
after July 1, 2004, 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, a contractor, or another
person or entity as described in paragraph (1) 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.
(f) 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.
(g) A person or entity may not encode or embed a social security
number in or on a card or document, including, but not limited to,
using a bar code, chip, magnetic strip, or other technology, in place
of removing the social security number, as required by this section.
(h) This section shall become operative, with respect to the
University of California, in the following manner:
(1) On or before January 1, 2004, the University of California
shall comply with paragraphs (1), (2), and (3) of subdivision (a).
(2) On or before January 1, 2005, the University of California
shall comply with paragraphs (4) and (5) of subdivision (a).
(i) This section shall become operative with respect to the
Franchise Tax Board on January 1, 2007.
(j) This section shall become operative with respect to the
California Community College districts on January 1, 2007.
(k) This section shall become operative with respect to the
California State University system on July 1, 2005.
(l) This section shall become operative, with respect to the
California Student Aid Commission and its auxiliary organization, in
the following manner:
(1) On or before January 1, 2004, the commission and its auxiliary
organization shall comply with paragraphs (1), (2), and (3) of
subdivision (a).
(2) On or before January 1, 2005, the commission and its auxiliary
organization shall comply with paragraphs (4) and (5) of subdivision
(a).
SEC. 36. Section 1799.1b of the Civil Code is amended to read:
1799.1b. (a) Any credit card issuer that receives a change of
address request, other than for a correction of a typographical
error, from a cardholder who orders a replacement credit card within
60 days before or after that request is received shall send to that
cardholder a change of address notification that is addressed to the
cardholder at the cardholder's previous address of record. If the
replacement credit card is requested prior to the effective date of
the change of address, the notification shall be sent within 30 days
of the change of address request. If the replacement credit card is
requested after the effective date of the change of address, the
notification shall be sent within 30 days of the request for the
replacement credit card.
(b) Any business entity that provides telephone accounts that
receives a change of address request, other than for a correction of
a typographical error, from an accountholder who orders new service,
shall send to that accountholder a change of address notification
that is addressed to the accountholder at the accountholder's
previous address of record. The notification shall be sent within 30
days of the request for new service.
(c) The notice required pursuant to subdivision (a) or (b) may be
given by telephone or e-mail communication if the credit card issuer
or business entity that provides telephone accounts reasonably
believes that it has the current telephone number or e-mail address
for the accountholder or cardholder who has requested a change of
address. If the notification is in writing it may not contain the
consumer's account number, social security number, or other personal
identifying information, but may contain the consumer's name,
previous address, and new address of record. For business entities
described in subdivision (b), the notification may also contain the
accountholder's telephone number.
(d) A credit card issuer or a business entity that provides
telephone accounts is not required to send a change of address
notification when a change of address request is made in person by a
consumer who has presented valid identification, or is made by
telephone and the requester has provided a unique alpha-numeric
password.
(e) The following definitions shall apply to this section:
(1) "Credit account" has the same meaning as "credit card," as
defined in subdivision (a) of Section 1747.02.
(2) "Telephone account" means an account with a telephone
corporation, as defined in Section 234 of the Public Utilities Code.
SEC. 37. Section 1812.701 of the Civil Code is amended to read:
1812.701. (a) The notice required in this title may be changed
only as necessary to reflect changes under the federal Fair Debt
Collection Practices Act (15 U.S.C. Sec. 1692 et seq.) that would
otherwise make the disclosure inaccurate.
(b) The type-size used in the disclosure shall be at least the
same type-size as that used to inform the debtor of his or her
specific debt, but is not required to be larger than 12-point type.
SEC. 38. Section 1865 of the Civil Code is amended to read:
1865. (a) For purposes of this section, "hotel" means any hotel,
motel, bed and breakfast inn, or other similar transient lodging
establishment, but it shall not include any residential hotel as
defined in Section 50519 of the Health and Safety Code. "Innkeeper"
means the owner or operator of a hotel, or the duly authorized agent
or employee of the owner or operator.
(b) For purposes of this section, "guest" means, and is
specifically limited to, an occupant of a hotel whose occupancy is
exempt, pursuant to subdivision (b) of Section 1940, from Chapter 2
(commencing with Section 1940) of Title 5 of Part 4 of Division 3.
(c) In addition to, and not in derogation of, any other provision
of law, every innkeeper shall have the right to evict a guest in the
manner specified in this subdivision if the guest refuses or
otherwise fails to fully depart the guest room at or before the
innkeeper's posted checkout time on the date agreed to by the guest,
but only if both of the following conditions are met:
(1) If the guest is provided written notice, at the time that he
or she was received and provided accommodations by the innkeeper,
that the innkeeper needs that guest's room to accommodate an arriving
person with a contractual right thereto, and that if the guest fails
to fully depart at the time agreed to the innkeeper may enter the
guest's guest room, take possession of the guest's property, re-key
the door to the guest room, and make the guest room available to a
new guest. The written notice shall be signed by the guest.
(2) At the time that the innkeeper actually undertakes to evict
the guest as specified in this subdivision, the innkeeper in fact has
a contractual obligation to provide the guest room to an arriving
person.
In the above cases, the innkeeper may enter the guest's guest
room, take possession of the guest's property, re-key the door to the
guest room, and make the guest room available to a new guest. The
evicted guest shall be entitled to immediate possession of his or her
property upon request therefor, subject to the rights of the
innkeeper pursuant to Sections 1861 to 1861.28, inclusive.
(d) As pertains to a minor, the rights of an innkeeper include,
but are not limited to, the following:
(1) Where a minor unaccompanied by an adult seeks accommodations,
the innkeeper may require a parent or guardian of the minor, or
another responsible adult, to assume, in writing, full liability for
any and all proper charges and other obligations incurred by the
minor for accommodations, food and beverages, and other services
provided by or through the innkeeper, as well as for any and all
injuries or damage caused by the minor to any person or property.
(2) Where a minor is accompanied by an adult, the innkeeper may
require the adult to agree, in writing, not to leave any minor 12
years of age or younger unattended on the innkeeper's premises at any
time during their stay, and to control the minor's behavior during
their stay so as to preserve the peace and quiet of the innkeeper's
other guests and to prevent any injury to any person and damage to
any property.
SEC. 39. Section 2945.3 of the Civil Code is amended to read:
2945.3. (a) Every contract shall be in writing and shall fully
disclose the exact nature of the foreclosure consultant's services
and the total amount and terms of compensation.
(b) The following notice, printed in at least 14-point boldface
type and completed with the name of the foreclosure consultant, shall
be printed immediately above the statement required by subdivision
(c):
"NOTICE REQUIRED BY CALIFORNIA LAW
_________________________________ or anyone working
(Name)
for him or her CANNOT:
(1) Take any money from you or ask you for money
until _________________________________________ has
(Name)
completely finished doing everything he or she said
he or she would do; and
(2) Ask you to sign or have you sign any lien,
deed of trust, or deed."
(c) The contract shall be written in the same language as
principally used by the foreclosure consultant to describe his or her
services or to negotiate the contract; shall be dated and signed by
the owner; and shall contain in immediate proximity to the space
reserved for the owner's signature a conspicuous statement in a size
equal to at least 10-point boldface type, as follows: "You, the
owner, may cancel this transaction at any time prior to midnight of
the third business day after the date of this transaction. See the
attached notice of cancellation form for an explanation of this
right."
(d) The contract shall contain on the first page, in a type size
no smaller than that generally used in the body of the document, each
of the following:
(1) The name and address of the foreclosure consultant to which
the notice of cancellation is to be mailed.
(2) The date the owner signed the contract.
(e) The contract shall be accompanied by a completed form in
duplicate, captioned "notice of cancellation," which shall be
attached to the contract, shall be easily detachable, and shall
contain in type of at least 10-point the following statement written
in the same language as used in the contract:
"NOTICE OF CANCELLATION
_______________________________________
(Enter date of transaction) (Date)
You may cancel this transaction, without any penalty or
obligation, within three business days from the above date.
To cancel this transaction, mail or deliver a signed and
dated copy of this cancellation notice, or any other
written notice, or send a telegram
to _________________________________________________________
(Name of foreclosure consultant)
at _________________________________________________________
(Address of foreclosure consultant's place of business)
NOT LATER THAN MIDNIGHT OF ________________________________.
(Date)
I hereby cancel this transaction _______________________.
(Date)
_________________________________"
(Owner's signature)
(f) The foreclosure consultant shall provide the owner with a copy
of the contract and the attached notice of cancellation.
(g) Until the foreclosure consultant has complied with this
section, the owner may cancel the contract.
SEC. 40. Section 2982 of the Civil Code is amended to read:
2982. Every conditional sale contract subject to this chapter
shall contain the disclosures required by Regulation Z, whether or
not Regulation Z applies to the transaction. In addition, to the
extent applicable, the contract shall contain the other disclosures
and notices required by, and shall satisfy the requirements and
limitations of, this section. The disclosures required by
subdivision (a) may be itemized or subtotaled to a greater extent
than as required by that subdivision and shall be made together and
in the sequence set forth in that subdivision. All other disclosures
and notices may appear in the contract in any location or sequence
and may be combined or interspersed with other provisions of the
contract.
(a) The contract shall contain the following disclosures, as
applicable, which shall be labeled "itemization of the amount
financed":
(1) (A) The cash price, exclusive of document preparation fees,
taxes imposed on the sale, pollution control certification fees,
prior credit or lease balance on property being traded in, and the
amount charged for a service contract.
(B) The
fee to be retained by the seller for document preparation.
(C) The fee charged by the seller for certifying that the motor
vehicle complies with applicable pollution control requirements.
(D) Taxes imposed on the sale.
(E) The amount of any optional business partnership automation fee
to register or transfer the vehicle, which shall be labeled
"Optional DMV Electronic Filing Fee."
(F) The amount charged for a service contract.
(G) The prior credit or lease balance remaining on property being
traded in, as required by paragraph (6). The disclosure required by
this subparagraph shall be labeled "prior credit or lease balance
(see downpayment and trade-in calculation)."
(H) Any charge for an optional debt cancellation agreement.
(I) The total cash price, which is the sum of subparagraphs (A) to
(H), inclusive.
(2) Amounts paid to public officials for the following:
(A) Vehicle license fees.
(B) Registration, transfer, and titling fees.
(C) California tire fees imposed pursuant to Section 42885 of the
Public Resources Code.
(3) The aggregate amount of premiums agreed, upon execution of the
contract, to be paid for policies of insurance included in the
contract, excluding the amount of any insurance premium included in
the finance charge.
(4) The amount of the state fee for issuance of a certificate of
compliance, noncompliance, exemption, or waiver pursuant to any
applicable pollution control statute.
(5) A subtotal representing the sum of the foregoing items.
(6) The amount of the buyer's downpayment itemized to show the
following:
(A) The agreed value of the property being traded in.
(B) The prior credit or lease balance, if any, owing on the
property being traded in.
(C) The net agreed value of the property being traded in, which is
the difference between the amounts disclosed in subparagraphs (A)
and (B). If the prior credit or lease balance of the property being
traded in exceeds the agreed value of the property, a negative number
shall be stated.
(D) The amount of any portion of the downpayment to be deferred
until not later than the due date of the second regularly scheduled
installment under the contract and which is not subject to a finance
charge.
(E) The amount of any manufacturer's rebate applied or to be
applied to the downpayment.
(F) The remaining amount paid or to be paid by the buyer as a
downpayment.
(G) The total downpayment. If the sum of subparagraphs (C) to
(F), inclusive, is zero or more, that sum shall be stated as the
total downpayment and no amount shall be stated as the prior credit
or lease balance under subparagraph (G) of paragraph (1). If the sum
of subparagraphs (C) to (F), inclusive, is less than zero, then that
sum, expressed as a positive number, shall be stated as the prior
credit or lease balance under subparagraph (G) of paragraph (1), and
zero shall be stated as the total downpayment. The disclosure
required by this subparagraph shall be labeled "total downpayment"
and shall contain a descriptor indicating that if the total
downpayment is a negative number, a zero shall be disclosed as the
total downpayment and a reference made that the remainder shall be
included in the disclosure required pursuant to subparagraph (G) of
paragraph (1).
(7) The amount of any administrative finance charge, labeled
"prepaid finance charge."
(8) The difference between item (5) and the sum of items (6) and
(7), labeled "amount financed."
(b) No particular terminology is required to disclose the items
set forth in subdivision (a) except as expressly provided in that
subdivision.
(c) If payment of all or a portion of the downpayment is to be
deferred, the deferred payment shall be reflected in the payment
schedule disclosed pursuant to Regulation Z.
(d) If the downpayment includes property being traded in, the
contract shall contain a brief description of that property.
(e) The contract shall contain the names and addresses of all
persons to whom the notice required under Section 2983.2 and
permitted under Sections 2983.5 and 2984 is to be sent.
(f) (1) If the contract includes a finance charge determined on
the precomputed basis, the contract shall identify the method of
computing the unearned portion of the finance charge in the event of
prepayment in full of the buyer's obligation and contain a statement
of the amount or method of computation of any charge that may be
deducted from the amount of any unearned finance charge in computing
the amount that will be credited to the obligation or refunded to the
buyer. The method of computing the unearned portion of the finance
charge shall be sufficiently identified with a reference to the
actuarial method if the computation will be under that method. The
method of computing the unearned portion of the finance charge shall
be sufficiently identified with a reference to the Rule of 78's, the
sum of the digits, or the sum of the periodic time balances method in
all other cases, and those references shall be deemed to be
equivalent for disclosure purposes.
(2) If the contract includes a finance charge which is determined
on the simple-interest basis but provides for a minimum finance
charge in the event of prepayment in full, the contract shall contain
a statement of that fact and the amount of the minimum finance
charge or its method of calculation.
(g) (1) If the contract includes a finance charge which is
determined on the precomputed basis and provides that the unearned
portion of the finance charge to be refunded upon full prepayment of
the contract is to be determined by a method other than actuarial,
the contract shall contain a notice, in at least 10-point boldface
type if the contract is printed, reading as follows: "Notice to
buyer: (1) Do not sign this agreement before you read it or if it
contains any blank spaces to be filled in. (2) You are entitled to a
completely filled-in copy of this agreement. (3) You can prepay the
full amount due under this agreement at any time and obtain a
partial refund of the finance charge if it is $1 or more. Because of
the way the amount of this refund will be figured, the time when you
prepay could increase the ultimate cost of credit under this
agreement. (4) If you default in the performance of your obligations
under this agreement, the vehicle may be repossessed and you may be
subject to suit and liability for the unpaid indebtedness evidenced
by this agreement."
(2) If the contract includes a finance charge which is determined
on the precomputed basis and provides for the actuarial method for
computing the unearned portion of the finance charge upon prepayment
in full, the contract shall contain a notice, in at least 10-point
boldface type if the contract is printed, reading as follows:
"Notice to buyer: (1) Do not sign this agreement before you read it
or if it contains any blank spaces to be filled in. (2) You are
entitled to a completely filled-in copy of this agreement. (3) You
can prepay the full amount due under this agreement at any time and
obtain a partial refund of the finance charge if it is $1 or more.
(4) If you default in the performance of your obligations under this
agreement, the vehicle may be repossessed and you may be subject to
suit and liability for the unpaid indebtedness evidenced by this
agreement."
(3) If the contract includes a finance charge which is determined
on the simple-interest basis, the contract shall contain a notice, in
at least 10-point boldface type if the contract is printed, reading
as follows: "Notice to buyer: (1) Do not sign this agreement before
you read it or if it contains any blank spaces to be filled in. (2)
You are entitled to a completely filled-in copy of this agreement.
(3) You can prepay the full amount due under this agreement at any
time. (4) If you default in the performance of your obligations
under this agreement, the vehicle may be repossessed and you may be
subject to suit and liability for the unpaid indebtedness evidenced
by this agreement."
(h) The contract shall contain a notice in at least 8-point
boldface type, acknowledged by the buyer, that reads as follows:
"If you have a complaint concerning this sale, you should try to
resolve it with the seller.
Complaints concerning unfair or deceptive practices or methods by
the seller may be referred to the city attorney, the district
attorney, or an investigator for the Department of Motor Vehicles, or
any combination thereof.
After this contract is signed, the seller may not change the
financing or payment terms unless you agree in writing to the change.
You do not have to agree to any change, and it is an unfair or
deceptive practice for the seller to make a unilateral change.
______________________________
Buyer's Signature"
(i) (1) The contract shall contain an itemization of any insurance
included as part of the amount financed disclosed pursuant to
paragraph (3) of subdivision (a) and of any insurance included as
part of the finance charge. The itemization shall identify the type
of insurance coverage and the premium charged therefor, and, if the
insurance expires before the date of the last scheduled installment
included in the repayment schedule, the term of the insurance shall
be stated.
(2) If any charge for insurance, other than for credit life or
disability, is included in the contract balance and disbursement of
any part thereof is to be made more than one year after the date of
the conditional sale contract, any finance charge on the amount to be
disbursed after one year shall be computed from the month the
disbursement is to be made to the due date of the last installment
under the conditional sale contract.
(j) (1) Except for contracts in which the finance charge or
portion thereof is determined by the simple-interest basis and the
amount financed disclosed pursuant to paragraph (8) of subdivision
(a) is more than two thousand five hundred dollars ($2,500), the
dollar amount of the disclosed finance charge may not exceed the
greater of:
(A) (i) One and one-half percent on so much of the unpaid balance
as does not exceed two hundred twenty-five dollars ($225), 11/6
percent on so much of the unpaid balance in excess of two hundred
twenty-five dollars ($225) as does not exceed nine hundred dollars
($900) and five-sixths of 1 percent on so much of the unpaid balance
in excess of nine hundred dollars ($900) as does not exceed two
thousand five hundred dollars ($2,500); or
(ii) One percent of the entire unpaid balance; multiplied in
either case by the number of months (computed on the basis of a full
month for any fractional month period in excess of 15 days) elapsing
between the date of the contract and the due date of the last
installment; or
(B) If the finance charge is determined by the precomputed basis,
twenty-five dollars ($25); or
(C) If the finance charge or a portion thereof is determined by
the simple-interest basis:
(i) Twenty-five dollars ($25) if the unpaid balance does not
exceed one thousand dollars ($1,000).
(ii) Fifty dollars ($50) if the unpaid balance exceeds one
thousand dollars ($1,000) but does not exceed two thousand dollars
($2,000).
(iii) Seventy-five dollars ($75) if the unpaid balance exceeds two
thousand dollars ($2,000).
(2) The holder of the contract may not charge, collect, or receive
a finance charge which exceeds the disclosed finance charge, except
to the extent (A) caused by the holder's receipt of one or more
payments under a contract which provides for determination of the
finance charge or a portion thereof on the 365-day basis at a time or
times other than as originally scheduled whether or not the parties
enter into an agreement pursuant to Section 2982.3, (B) permitted by
paragraph (2), (3), or (4) of subdivision (c) of Section 226.17 of
Regulation Z, or (C) permitted by subdivisions (a) and (c) of Section
2982.8.
(3) If the finance charge or a portion thereof is determined by
the simple-interest basis and the amount of the unpaid balance
exceeds five thousand dollars ($5,000), the holder of the contract
may, in lieu of its right to a minimum finance charge under
subparagraph (C) of paragraph (1), charge, receive, or collect on the
date of the contract an administrative finance charge not to exceed
seventy-five dollars ($75), provided that the sum of the
administrative finance charge and the portion of the finance charge
determined by the simple-interest basis shall not exceed the maximum
total finance charge permitted by subparagraph (A) of paragraph (1).
Any administrative finance charge that is charged, received, or
collected by a holder shall be deemed a finance charge earned on the
date of the contract.
(4) If a contract provides for unequal or irregular payments, or
payments on other than a monthly basis, the maximum finance charge
shall be at the effective rate provided for in paragraph (1), having
due regard for the schedule of installments.
(k) The contract may provide that for each installment in default
for a period of not less than 10 days the buyer shall pay a
delinquency charge in an amount not to exceed in the aggregate 5
percent of the delinquent installment, which amount may be collected
only once on any installment regardless of the period during which it
remains in default. Payments timely received by the seller under an
extension or deferral agreement may not be subject to a delinquency
charge unless the charge is permitted by Section 2982.3. The
contract may provide for reasonable collection costs and fees in the
event of delinquency.
(l) Notwithstanding any provision of a contract to the contrary,
the buyer may pay at any time before maturity the entire indebtedness
evidenced by the contract without penalty. In the event of
prepayment in full:
(1) If the finance charge was determined on the precomputed basis,
the amount required to prepay the contract shall be the outstanding
contract balance as of that date, provided, however, that the buyer
shall be entitled to a refund credit in the amount of the unearned
portion of the finance charge, except as provided in paragraphs (3)
and (4). The amount of the unearned portion of the finance charge
shall be at least as great a proportion of the finance charge,
including any additional finance charge imposed pursuant to Section
2982.8 or other additional charge imposed because the contract has
been extended, deferred, or refinanced, as the sum of the periodic
monthly time balances payable more than 15 days after the date of
prepayment bears to the sum of all the periodic monthly time balances
under the schedule of installments in the contract or, if the
contract has been extended, deferred, or refinanced, as so extended,
deferred, or refinanced. If the amount of the refund credit is less
than one dollar ($1), no refund credit need be made by the holder.
Any refund credit may be made in cash or credited to the outstanding
obligations of the buyer under the contract.
(2) If the finance charge or a portion thereof was determined on
the simple-interest basis, the amount required to prepay the contract
shall be the outstanding contract balance as of that date, including
any earned finance charges which are unpaid as of that date and, if
applicable, the amount provided in paragraph (3), and provided
further that in cases where a finance charge is determined on the
360-day basis, the payments theretofore received will be assumed to
have been received on their respective due dates regardless of the
actual dates on which the payments were received.
(3) Where the minimum finance charge provided by subparagraph (B)
or subparagraph (C) of paragraph (1) of subdivision (j), if either is
applicable, is greater than the earned finance charge as of the date
of prepayment, the holder shall be additionally entitled to the
difference.
(4) The provisions of this subdivision may not impair the right of
the seller or the seller's assignee to receive delinquency charges
on delinquent installments and reasonable costs and fees as provided
in subdivision (k) or extension or deferral agreement charges as
provided in Section 2982.3.
(5) Notwithstanding any provision of a contract to the contrary,
whenever the indebtedness created by any contract is satisfied prior
to its maturity through surrender of the motor vehicle, repossession
of the motor vehicle, redemption of the motor vehicle after
repossession, or any judgment, the outstanding obligation of the
buyer shall be determined as provided in paragraph (1) or (2).
Notwithstanding, the buyer's outstanding obligation shall be computed
by the holder as of the date the holder recovers the value of the
motor vehicle through disposition thereof or judgment is entered or,
if the holder elects to keep the motor vehicle in satisfaction of the
buyer's indebtedness, as of the date the holder takes possession of
the motor vehicle.
(m) Notwithstanding any other provision of this chapter to the
contrary, any information required to be disclosed in a conditional
sale contract under this chapter may be disclosed in any manner,
method, or terminology required or permitted under Regulation Z, as
in effect at the time that disclosure is made, except that permitted
by paragraph (2) of subdivision (c) of Section 226.18 of Regulation
Z, provided that all of the requirements and limitations set forth in
subdivision (a) of this section are satisfied. This chapter does
not prohibit the disclosure in that contract of additional
information required or permitted under Regulation Z, as in effect at
the time that disclosure is made.
(n) If the seller imposes a fee for document preparation, the
contract shall contain a disclosure that the fee is not a
governmental fee.
(o) A seller may not impose an application fee for a transaction
governed by this chapter.
(p) The seller or holder may charge and collect a fee not to
exceed fifteen dollars ($15) for the return by a depository
institution of a dishonored check, negotiated order of withdrawal, or
share draft issued in connection with the contract, if the contract
so provides or if the contract contains a generalized statement that
the buyer may be liable for collection costs incurred in connection
with the contract.
(q) The contract shall disclose on its face, by printing the word
"new" or "used" within a box outlined in red, that is not smaller
than one-half inch high and one-half inch wide, whether the vehicle
is sold as a new vehicle, as defined in Section 430 of the Vehicle
Code, or a used vehicle, as defined in Section 665 of the Vehicle
Code.
(r) The contract shall contain a notice with a heading in at least
12-point bold type and the text in at least 10-point bold type,
circumscribed by a line, immediately above the contract signature
line, that reads as follows:
___________________________________________________________________
: :
: THERE IS NO COOLING OFF PERIOD :
: :
: California law does not provide for a "cooling off" or :
: other cancellation period for vehicle sales. Therefore, you :
: cannot later cancel this contract simply because you change :
: your mind, decide the vehicle costs too much, or wish you had :
: acquired a different vehicle. After you sign below, you may :
: only cancel this contract with the agreement of the seller :
: or for legal cause, such as fraud. :
: :
-------------------------------------------------------------------
SEC. 41. Section 2985.8 of the Civil Code is amended to read:
2985.8. (a) Every lease contract shall be in writing and the
print portion of the contract shall be printed in at least 8-point
type and shall contain in a single document all of the agreements of
the lessor and lessee with respect to the obligations of each party.
(b) At the top of the lease contract, a title which contains the
words "LEASE CONTRACT" or "LEASE AGREEMENT" shall appear in at least
12-point boldface type.
(c) Every lease contract shall disclose all of the following:
(1) All of the information prescribed by Regulation M set forth in
the manner required or permitted by Regulation M, whether or not
Regulation M applies to the transaction.
(2) A separate statement labeled "Itemization of Gross Capitalized
Cost" that shall appear immediately following or directly adjacent
to the disclosures required to be segregated by Regulation M. The
Itemization of Gross Capitalized Cost shall include all of the
following and shall be circumscribed by a line:
(A) The agreed-upon value of the vehicle as equipped at the time
of signing the lease.
(B) The agreed-upon value and a description of each accessory and
item of optional equipment the lessor agrees to add to the vehicle
after signing the lease.
(C) The premium for each policy of insurance.
(D) The amount charged for each service contract.
(E) Any charge for an optional debt cancellation agreement.
(F) Any outstanding prior credit or lease balance.
(G) An itemization by type and agreed-upon value of each good or
service included in the gross capitalized cost other than those items
included in the disclosures required in subparagraphs (A) to (F),
inclusive.
(3) The vehicle identification number of the leased vehicle.
(4) A brief description of each vehicle or other property being
traded in and the agreed-upon value thereof if the amount due at the
time of signing the lease or upon delivery is paid in whole or in
part with a net trade-in allowance or the "Itemization of Gross
Capitalized Cost" includes any portion of the outstanding prior
credit or lease balance from the trade-in property.
(5) The fee, if any, to be retained by the lessor for document
preparation, which fee may not exceed forty-five dollars ($45) and
may not be represented as a governmental fee.
(6) The amount of any optional business partnership automation
program fee to register or transfer the vehicle, which shall be
labeled "Optional DMV Electronic Filing Fee."
(d) Every lease contract shall contain, in at least 8-point
boldface type, above the space provided for the lessee's signature
and circumscribed by a line, the following notice: "(1) Do not sign
this lease before you read it or if it contains any blank spaces to
be filled in; (2) You are entitled to a completely filled in copy of
this lease; (3) Warning--Unless a charge is included in this lease
for public liability or property damage insurance, payment for that
coverage is not provided by this lease."
(e) Every lease contract shall contain, in at least 8-point
boldface type, on the first page of the contract and circumscribed by
a line, the following notice:
"THERE IS NO COOLING OFF PERIOD
California law does not provide for a "cooling off" or other
cancellation period for vehicle leases. Therefore, you cannot later
cancel this lease simply because you change your mind, decided the
vehicle costs too much, or wish you had acquired a different vehicle.
You may cancel this lease only with the agreement of the lessor or
for legal cause, such as fraud."
(f) Every lease contract shall contain, in at least 8-point
boldface type, the following notice: "You have the right to return
the vehicle, and receive a refund of any payments made if the credit
application is not approved, unless nonapproval results from an
incomplete application or from incorrect information provided by you."
(g) The lease contract shall be signed by the lessor and lessee,
or their authorized representatives, and an exact copy of the fully
executed lease contract shall be provided to the lessee at the time
of signing.
(h) No motor vehicle shall be delivered under a lease contract
subject to this chapter until the lessor provides to the lessee a
fully executed copy of the lease contract.
(i) The lessor may not obtain the signature of the lessee to a
contract when it contains blank spaces to be filled in after it has
been signed.
(j) If the lease contract contains a provision that holds the
lessee liable for the difference between (1) the adjusted capitalized
cost disclosed in the lease contract reduced by the amounts
described in subparagraph (A) of paragraph (5) of subdivision (b) of
Section 2987 and (2) the settlement proceeds of the lessee's required
insurance and deductible in the event of theft or damage to the
vehicle that results in a total loss, the lease contract shall
contain the following notice in at least 8-point boldface type on the
first page of the contract:
"GAP LIABILITY NOTICE
In the event of theft or damage to the vehicle that results in a
total loss, there may be a GAP between the amount due upon early
termination and the proceeds of your insurance settlement and
deductible. THIS LEASE PROVIDES THAT YOU ARE LIABLE FOR THE GAP
AMOUNT. Optional coverage for the GAP amount may be offered for an
additional price."
SEC. 42. Section 2988.9 of the Civil Code is amended to read:
2988.9. Reasonable attorney's fees and costs shall be awarded to
the prevailing party in any action on a lease contract subject to the
provisions of this chapter regardless of whether the action is
instituted by the lessor, assignee, or lessee. Where the defendant
alleges in his or her answer that he or she tendered to the plaintiff
the full amount to which he or she was entitled, and thereupon
deposits in court, for the plaintiff, the amount so tendered, and the
allegation is found to be true, then the defendant is deemed to be
the prevailing party within the meaning of this section.
SEC. 43. Section 715.010 of the Code of Civil Procedure is amended
to read:
715.010. (a) A judgment for possession of real property may be
enforced by a writ of possession of real property issued pursuant to
Section 712.010. The application for the writ shall provide a place
to indicate that the writ applies to all tenants, subtenants, if any,
name of claimants, if any, and any other occupants of the premises.
(b) In addition to the information required by Section 712.020,
the writ of possession of real property shall contain the following:
(1) A description of the real property, possession of which is to
be delivered to the judgment creditor in satisfaction of the
judgment.
(2) A statement that if the real property is not vacated within
five days from the date of service of a copy of the writ on the
occupant or, if the copy of
the writ is posted, within five days from the date a copy of the writ
is served on the judgment debtor, the levying officer will remove
the occupants from the real property and place the judgment creditor
in possession.
(3) A statement that any personal property, except a mobilehome,
remaining on the real property after the judgment creditor has been
placed in possession will be sold or otherwise disposed of in
accordance with Section 1174 unless the judgment debtor or other
owner pays the judgment creditor the reasonable cost of storage and
takes possession of the personal property not later than 15 days
after the time the judgment creditor takes possession of the real
property.
(4) The date the complaint was filed in the action that resulted
in the judgment of possession.
(5) The date or dates on which the court will hear objections to
enforcement of a judgment of possession that are filed pursuant to
Section 1174.3, unless a summons, complaint, and prejudgment claim of
right to possession were served upon the occupants in accordance
with Section 415.46.
(6) The daily rental value of the property as of the date the
complaint for unlawful detainer was filed unless a summons,
complaint, and prejudgment claim of right of possession were served
upon the occupants in accordance with Section 415.46.
(7) If a summons, complaint, and prejudgment claim of right to
possession were served upon the occupants in accordance with Section
415.46, a statement that the writ applies to all tenants, subtenants,
if any, named claimants, if any, and any other occupants of the
premises.
(c) At the time the writ of possession is served or posted, the
levying officer shall also serve or post a copy of the form for a
claim of right to possession, unless a summons, complaint, and
prejudgment claim of right to possession were served upon the
occupants in accordance with Section 415.46.
SEC. 44. Section 995.640 of the Code of Civil Procedure is amended
to read:
995.640. The county clerk of any county shall, upon request of
any person, do any of the following:
(a) Issue a certificate stating whether the certificate of
authority of an admitted surety insurer issued by the Insurance
Commissioner authorizing the insurer to transact surety insurance,
has been surrendered, revoked, canceled, annulled, or suspended, and
in the event that it has, whether renewed authority has been granted.
The county clerk in issuing the certificate shall rely solely upon
the information furnished by the Insurance Commissioner pursuant to
Article 2 (commencing with Section 12070) of Chapter 1 of Part 4 of
Division 2 of the Insurance Code.
(b) Issue a certificate stating whether a copy of the transcript
or record of the unrevoked appointment, power of attorney, bylaws, or
other instrument, duly certified by the proper authority and
attested by the seal of an admitted surety insurer entitling or
authorizing the person who executed a bond to do so for and in behalf
of the insurer, is filed in the office of the clerk.
SEC. 45. Section 1021.8 of the Code of Civil Procedure is amended
to read:
1021.8. (a) Whenever the Attorney General prevails in a civil
action to enforce Section 22445, 22446.5, 22958, or 22962 of the
Business and Professions Code, Section 52, 52.1, or 55 of the Civil
Code, Section 1603.1, 2014, or 5650.1 of the Fish and Game Code,
Section 4458, 12598, 12606, 12607, 12989.3, 66640, 66641, or 66641.7
of the Government Code, Section 13009, 13009.1, 19958.5, 25299, or
118950 of the Health and Safety Code, Section 308.1 or 308.3 of the
Penal Code, Section 30820, 30821.6, or 30822 of the Public Resources
Code, or Section 275, 1052, 1845, 13350, or 13385 of the Water Code,
the court shall award to the Attorney General all costs of
investigating and prosecuting the action, including expert fees,
reasonable attorney's fees, and costs. Awards under this section
shall be paid to the Public Rights Law Enforcement Special Fund
established by Section 12530 of the Government Code.
(b) This section applies to any action pending on the effective
date of this section and to any action filed thereafter.
SEC. 46. Section 1563 of the Code of Civil Procedure is amended to
read:
1563. (a) Except as provided in subdivisions (b) and (c), all
escheated property delivered to the Controller under this chapter
shall be sold by the Controller to the highest bidder at public sale
in whatever city in the state affords in his or her judgment the most
favorable market for the property involved, or the Controller may
conduct the sale by electronic media, including, but not limited to,
the Internet, if in his or her judgment it is cost effective to
conduct the sale of the property involved in that manner. The
Controller may decline the highest bid and reoffer the property for
sale if he or she considers the price bid insufficient. The
Controller need not offer any property for sale if, in his or her
opinion, the probable cost of sale exceeds the value of the property.
Any sale of escheated property held under this section shall be
preceded by a single publication of notice thereof, at least one week
in advance of sale, in an English language newspaper of general
circulation in the county where the property is to be sold.
(b) Securities listed on an established stock exchange within two
years following receipt by the Controller shall be sold at the
prevailing prices on that exchange. Other securities may be sold
over the counter at prevailing prices or, with prior approval of the
California Victim Compensation and Government Claims Board, by any
other method that the Controller may determine to be advisable.
United States government savings bonds and United States war bonds
shall be presented to the United States for payment. Subdivision (a)
does not apply to the property described in this subdivision.
(c) (1) All escheated property consisting of military awards,
decorations, equipment, artifacts, memorabilia, documents,
photographs, films, literature, and any other item relating to the
military history of California and Californians that is delivered to
the Controller is exempt from subdivision (a) and shall be held in
trust for the Controller at the California State Military Museum and
Resource Center. All escheated property held in trust pursuant to
this subdivision is subject to the applicable regulations of the
United States Army governing Army museum activities as described in
Section 179 of the Military and Veterans Code. Any person claiming
an interest in the escheated property may file a claim to the
property pursuant to Article 4 (commencing with Section 1540).
(2) The California State Military Museum and Resource Center shall
be responsible for the costs of storage and maintenance of escheated
property delivered by the Controller under this subdivision.
(d) The purchaser at any sale conducted by the Controller pursuant
to this chapter shall receive title to the property purchased, free
from all claims of the owner or prior holder thereof and of all
persons claiming through or under them. The Controller shall execute
all documents necessary to complete the transfer of title.
SEC. 47. Section 1822.60 of the Code of Civil Procedure is amended
to read:
1822.60. A warrant may be issued under the requirements of this
title to authorize personnel of the Division of Gambling Control of
the Department of Justice to conduct inspections as provided in
subdivision (a) of Section 19827 of the Business and Professions
Code.
SEC. 48. Section 2023 of the Code of Civil Procedure is amended to
read:
2023. (a) Misuses of the discovery process include, but are not
limited to, the following:
(1) Persisting, over objection and without substantial
justification, in an attempt to obtain information or materials that
are outside the scope of permissible discovery.
(2) Using a discovery method in a manner that does not comply with
its specified procedures.
(3) Employing a discovery method in a manner or to an extent that
causes unwarranted annoyance, embarrassment, or oppression, or undue
burden and expense.
(4) Failing to respond or to submit to an authorized method of
discovery.
(5) Making, without substantial justification, a meritless
objection to discovery.
(6) Making an evasive response to discovery.
(7) Disobeying a court order to provide discovery.
(8) Making or opposing, unsuccessfully and without substantial
justification, a motion to compel or to limit discovery.
(9) Failing to confer in person, by telephone, or by letter with
an opposing party or attorney in a reasonable and good faith attempt
to resolve informally any dispute concerning discovery, if the
section governing a particular discovery motion requires the filing
of a declaration stating facts showing that such an attempt has been
made. Notwithstanding the outcome of the particular discovery
motion, the court shall impose a monetary sanction ordering that any
party or attorney who fails to confer as required pay the reasonable
expenses, including attorney's fees, incurred by anyone as a result
of that conduct.
(b) To the extent authorized by the section governing any
particular discovery method or any other provision of this article,
the court, after notice to any affected party, person, or attorney,
and after opportunity for hearing, may impose the following sanctions
against anyone engaging in conduct that is a misuse of the discovery
process:
(1) The court may impose a monetary sanction ordering that one
engaging in the misuse of the discovery process, or any attorney
advising that conduct, or both, pay the reasonable expenses,
including attorney's fees, incurred by anyone as a result of that
conduct. The court may also impose this sanction on one
unsuccessfully asserting that another has engaged in the misuse of
the discovery process, or on any attorney who advised that assertion,
or on both. If a monetary sanction is authorized by any provision of
this article, the court shall impose that sanction unless it finds
that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the
sanction unjust.
(2) The court may impose an issue sanction ordering that
designated facts shall be taken as established in the action in
accordance with the claim of the party adversely affected by the
misuse of the discovery process. The court may also impose an issue
sanction by an order prohibiting any party engaging in the misuse of
the discovery process from supporting or opposing designated claims
or defenses.
(3) The court may impose an evidence sanction by an order
prohibiting any party engaging in the misuse of the discovery process
from introducing designated matters in evidence.
(4) The court may impose a terminating sanction by one of the
following orders:
(A) An order striking out the pleadings or parts of the pleadings
of any party engaging in the misuse of the discovery process.
(B) An order staying further proceedings by that party until an
order for discovery is obeyed.
(C) An order dismissing the action, or any part of the action, of
that party.
(D) An order rendering a judgment by default against that party.
(5) The court may impose a contempt sanction by an order treating
the misuse of the discovery process as a contempt of court.
(c) A request for a sanction shall, in the notice of motion,
identify every person, party, and attorney against whom the sanction
is sought, and specify the type of sanction sought. The notice of
motion shall be supported by a memorandum of points and authorities,
and accompanied by a declaration setting forth facts supporting the
amount of any monetary sanction sought.
SEC. 49. Section 2207 of the Corporations Code is amended to read:
2207. (a) A corporation is liable for a civil penalty in an
amount not exceeding one million dollars ($1,000,000) if the
corporation does both of the following:
(1) Has actual knowledge that an officer, director, manager, or
agent of the corporation does any of the following:
(A) Makes, publishes, or posts, or has made, published, or posted,
either generally or privately to the shareholders or other persons,
either of the following:
(i) An oral, written, or electronically transmitted report,
exhibit, notice, or statement of its affairs or pecuniary condition
that contains a material statement or omission that is false and
intended to give the shares of stock in the corporation a materially
greater or a materially less apparent market value than they really
possess.
(ii) An oral, written, or electronically transmitted report,
prospectus, account, or statement of operations, values, business,
profits, or expenditures, that includes a material false statement or
omission intended to give the shares of stock in the corporation a
materially greater or a materially less apparent market value than
they really possess.
(B) Refuses or has refused to make any book entry or post any
notice required by law in the manner required by law.
(C) Misstates or conceals or has misstated or concealed from a
regulatory body a material fact in order to deceive a regulatory body
to avoid a statutory or regulatory duty, or to avoid a statutory or
regulatory limit or prohibition.
(2) Within 30 days after actual knowledge is acquired of the
actions described in paragraph (1), the corporation knowingly fails
to do both of the following:
(A) Notify the Attorney General or appropriate government agency
in writing, unless the corporation has actual knowledge that the
Attorney General or appropriate government agency has been notified.
(B) Notify its shareholders in writing, unless the corporation has
actual knowledge that the shareholders have been notified.
(b) The requirement for notification under this section is not
applicable if the action taken or about to be taken by the
corporation, or by an officer, director, manager, or agent of the
corporation under paragraph (1) of subdivision (a), is abated within
the time prescribed for reporting, unless the appropriate government
agency requires disclosure by regulation.
(c) If the action reported to the Attorney General pursuant to
this section implicates the government authority of an agency other
than the Attorney General, the Attorney General shall promptly
forward the written notice to that agency.
(d) If the Attorney General was not notified pursuant to
subparagraph (A) of paragraph (2) of subdivision (a), but the
corporation reasonably and in good faith believed that it had
complied with the notification requirements of this section by
notifying a government agency listed in paragraph (5) of subdivision
(e), no penalties shall apply.
(e) For purposes of this section:
(1) "Manager" means a person having both of the following:
(A) Management authority over a business entity.
(B) Significant responsibility for an aspect of a business that
includes actual authority for the financial operations or financial
transactions of the business.
(2) "Agent" means a person or entity authorized by the corporation
to make representations to the public about the corporation's
financial condition and who is acting within the scope of the agency
when the representations are made.
(3) "Shareholder" means a person or entity that is a shareholder
of the corporation at the time the disclosure is required pursuant to
subparagraph (B) of paragraph (2) of subdivision (a).
(4) "Notify its shareholders" means to give sufficient description
of an action taken or about to be taken that would constitute acts
or omissions as described in paragraph (1) of subdivision (a). A
notice or report filed by a corporation with the United States
Securities and Exchange Commission that relates to the facts and
circumstances giving rise to an obligation under paragraph (1) of
subdivision (a) shall satisfy all notice requirements arising under
paragraph (2) of subdivision (a), but shall not be the exclusive
means of satisfying the notice requirements, provided that the
Attorney General or appropriate agency is informed in writing that
the filing has been made together with a copy of the filing or an
electronic link where it is available online without charge.
(5) "Appropriate government agency" means an agency on the
following list that has regulatory authority with respect to the
financial operations of a corporation:
(A) Department of Corporations.
(B) Department of Insurance.
(C) Department of Financial Institutions.
(D) Department of Managed Health Care.
(E) United States Securities and Exchange Commission.
(6) "Actual knowledge of the corporation" means the knowledge an
officer or director of a corporation actually possesses or does not
consciously avoid possessing, based on an evaluation of information
provided pursuant to the corporation's disclosure controls and
procedures.
(7) "Refuse to make a book entry" means the intentional decision
not to record an accounting transaction when all of the following
conditions are satisfied:
(A) The independent auditors required recordation of an accounting
transaction during the course of an audit.
(B) The audit committee of the corporation has not approved the
independent auditor's recommendation.
(C) The decision is made for the primary purpose of rendering the
financial statements materially false or misleading.
(8) "Refuse to post any notice required by law" means an
intentional decision not to post a notice required by law when all of
the following conditions exist:
(A) The decision not to post the notice has not been approved by
the corporation's audit committee.
(B) The decision is intended to give the shares of stock in the
corporation a materially greater or a materially less apparent market
value than they really possess.
(9) "Misstate or conceal material facts from a regulatory body"
means an intentional decision not to disclose material facts when all
of the following conditions exist:
(A) The decision not to disclose material facts has not been
approved by the corporation's audit committee.
(B) The decision is intended to give the shares of stock in the
corporation a materially greater or a materially less apparent market
value than they really possess.
(10) "Material false statement or omission" means an untrue
statement of material fact or an omission to state a material fact
necessary in order to make the statements made under the
circumstances under which they were made not misleading.
(11) "Officer" means any person as set forth in Rule 16A-1
promulgated under the Securities Exchange Act of 1934 or any
successor regulation thereto, except an officer of a subsidiary
corporation who is not also an officer of the parent corporation.
(f) This section only applies to corporations that are issuers, as
defined in Section 2 of the Sarbanes-Oxley Act of 2002 (15 U.S.C.
Sec. 7201 and following).
(g) An action to enforce this section may only be brought by the
Attorney General or a district attorney or city attorney in the name
of the people of the State of California.
SEC. 50. Section 13401.5 of the Corporations Code is amended to
read:
13401.5. Notwithstanding subdivision (d) of Section 13401 and any
other provision of law, the following licensed persons may be
shareholders, officers, directors, or professional employees of the
professional corporations designated in this section so long as the
sum of all shares owned by those licensed persons does not exceed 49
percent of the total number of shares of the professional corporation
so designated herein, and so long as the number of those licensed
persons owning shares in the professional corporation so designated
herein does not exceed the number of persons licensed by the
governmental agency regulating the designated professional
corporation:
(a) Medical corporation.
(1) Licensed doctors of podiatric medicine.
(2) Licensed psychologists.
(3) Registered nurses.
(4) Licensed optometrists.
(5) Licensed marriage and family therapists.
(6) Licensed clinical social workers.
(7) Licensed physician assistants.
(8) Licensed chiropractors.
(9) Licensed acupuncturists.
(10) Naturopathic doctors.
(b) Podiatric medical corporation.
(1) Licensed physicians and surgeons.
(2) Licensed psychologists.
(3) Registered nurses.
(4) Licensed optometrists.
(5) Licensed chiropractors.
(6) Licensed acupuncturists.
(7) Naturopathic doctors.
(c) Psychological corporation.
(1) Licensed physicians and surgeons.
(2) Licensed doctors of podiatric medicine.
(3) Registered nurses.
(4) Licensed optometrists.
(5) Licensed marriage and family therapists.
(6) Licensed clinical social workers.
(7) Licensed chiropractors.
(8) Licensed acupuncturists.
(9) Naturopathic doctors.
(d) Speech-language pathology corporation.
(1) Licensed audiologists.
(e) Audiology corporation.
(1) Licensed speech-language pathologists.
(f) Nursing corporation.
(1) Licensed physicians and surgeons.
(2) Licensed doctors of podiatric medicine.
(3) Licensed psychologists.
(4) Licensed optometrists.
(5) Licensed marriage and family therapists.
(6) Licensed clinical social workers.
(7) Licensed physician assistants.
(8) Licensed chiropractors.
(9) Licensed acupuncturists.
(10) Naturopathic doctors.
(g) Marriage and family therapy corporation.
(1) Licensed physicians and surgeons.
(2) Licensed psychologists.
(3) Licensed clinical social workers.
(4) Registered nurses.
(5) Licensed chiropractors.
(6) Licensed acupuncturists.
(7) Naturopathic doctors.
(h) Licensed clinical social worker corporation.
(1) Licensed physicians and surgeons.
(2) Licensed psychologists.
(3) Licensed marriage and family therapists.
(4) Registered nurses.
(5) Licensed chiropractors.
(6) Licensed acupuncturists.
(7) Naturopathic doctors.
(i) Physician assistants corporation.
(1) Licensed physicians and surgeons.
(2) Registered nurses.
(3) Licensed acupuncturists.
(4) Naturopathic doctors.
(j) Optometric corporation.
(1) Licensed physicians and surgeons.
(2) Licensed doctors of podiatric medicine.
(3) Licensed psychologists.
(4) Registered nurses.
(5) Licensed chiropractors.
(6) Licensed acupuncturists.
(7) Naturopathic doctors.
(k) Chiropractic corporation.
(1) Licensed physicians and surgeons.
(2) Licensed doctors of podiatric medicine.
(3) Licensed psychologists.
(4) Registered nurses.
(5) Licensed optometrists.
(6) Licensed marriage and family therapists.
(7) Licensed clinical social workers.
(8) Licensed acupuncturists.
(9) Naturopathic doctors.
(l) Acupuncture corporation.
(1) Licensed physicians and surgeons.
(2) Licensed doctors of podiatric medicine.
(3) Licensed psychologists.
(4) Registered nurses.
(5) Licensed optometrists.
(6) Licensed marriage and family therapists.
(7) Licensed clinical social workers.
(8) Licensed physician assistants.
(9) Licensed chiropractors.
(10) Naturopathic doctors.
(m) Naturopathic doctor corporation.
(1) Licensed physicians and surgeons.
(2) Licensed psychologists.
(3) Registered nurses.
(4) Licensed physician assistants.
(5) Licensed chiropractors.
(6) Licensed acupuncturists.
(7) Licensed physical therapists.
(8) Licensed doctors of podiatric medicine.
(9) Licensed marriage, family, and child counselors.
(10) Licensed clinical social workers.
(11) Licensed optometrists.
(n) Dental corporation.
(1) Licensed physicians and surgeons.
(2) Dental assistants.
(3) Registered dental assistants.
(4) Registered dental assistants in extended functions.
(5) Registered dental hygienists.
(6) Registered dental hygienists in extended functions.
(7) Registered dental hygienists in alternative practice.
SEC. 51. Section 14010 of the Corporations Code is amended to
read:
14010. Unless the context otherwise requires, the definitions in
this section govern the construction of this part.
(a) "Corporation" or "the corporation" means any nonprofit
California small business financial development corporation created
pursuant to this part.
(b) "Financial institution" means banking organizations including
national banks and trust companies authorized to conduct business in
California and state-chartered commercial banks, trust companies, and
savings and loan associations.
(c) "Financial company" means banking organizations including
national banks and trust companies, savings and loan associations,
state insurance companies, mutual insurance companies, and other
banking, lending, retirement, and insurance organizations.
(d) "Expansion Fund" means the California Small Business Expansion
Fund.
(e) Unless otherwise defined by the office by regulation, "small
business loan" means a loan to a business defined as an eligible
small business as set forth in Section 121.3-10 of Part 121 of
Chapter 1 of Title 13 of the Code of Federal Regulations, including
those businesses organized for agricultural purposes that create or
retain employment as a result of the loan. From time to time, the
director shall provide guidelines as to the preferred ratio of jobs
created or retained to total funds borrowed for guidance to the
corporations.
(f) "Employment incentive loan" means a loan to a qualified
business, as defined in subdivision (h) of Section 7082 of the
Government Code, or to a business located within an enterprise zone,
as defined in subdivision (b) of Section 7072 of the Government Code.
(g) "Loan committee" means a committee appointed by the board of
directors of a corporation to determine the course of action on a
loan application pursuant to Section 14060.
(h) "Board of directors" means the board of directors of the
corporation.
(i) "Office" means the California Office of Small Business.
(j) "Board" means the California Small Business Board.
(k) "Agency" means the Business, Transportation and Housing
Agency.
(l) "Director" means the Executive Director of the California
Office of Small Business.
(m) "Secretary" means the Secretary of Business, Transportation
and Housing.
(n) "Trust fund" means
the money from the expansion fund that is held in trust by a
financial institution or a financial company. A trust fund is not a
deposit of state funds and is not subject to the requirements of
Section 16506 of the Government Code.
(o) "Trust fund account" means an account within the trust fund
that is allocated to a particular small business financial
development corporation for the purpose of paying loan defaults and
claims on bond guarantees for a specific small business financial
development corporation.
(p) "Trustee" is the lending institution or financial company
selected by the office to hold and invest the trust fund. The
agreement between the agency and the trustee shall not be construed
to be a deposit of state funds.
SEC. 52. Section 17655 of the Corporations Code, as added by
Section 3 of Chapter 477 of the Statutes of 2003, is amended and
renumbered to read:
17656. (a) A limited liability company is liable for a civil
penalty in an amount not exceeding one million dollars ($1,000,000)
if the limited liability company does both of the following:
(1) Has actual knowledge that a member, officer, manager, or agent
of the limited liability company does any of the following:
(A) Makes, publishes, or posts, or has made, published, or posted,
either generally or privately to the shareholders or other persons,
either of the following:
(i) An oral, written, or electronically transmitted report,
exhibit, notice, or statement of its affairs or pecuniary condition
that contains a material statement or omission that is false and
intended to give membership shares in the limited liability company a
materially greater or a materially less apparent market value than
they really possess.
(ii) An oral, written, or electronically transmitted report,
prospectus, account, or statement of operations, values, business,
profits, or expenditures that includes a material false statement or
omission intended to give membership shares in the limited liability
company a materially greater or a materially less apparent market
value than they really possess.
(B) Refuses or has refused to make any book entry or post any
notice required by law in the manner required by law.
(C) Misstates or conceals or has misstated or concealed from a
regulatory body a material fact in order to deceive a regulatory body
to avoid a statutory or regulatory duty, or to avoid a statutory or
regulatory limit or prohibition.
(2) Within 30 days after actual knowledge is acquired of the
actions described in paragraph (1), the limited liability company
knowingly fails to do both of the following:
(A) Notify the Attorney General or appropriate government agency
in writing, unless the limited liability company has actual knowledge
that the Attorney General or appropriate government agency has been
notified.
(B) Notify its members and investors in writing, unless the
limited liability company has actual knowledge that the members and
investors have been notified.
(b) The requirement for notification under this section is not
applicable if the action taken or about to be taken by the limited
liability company, or by a member, officer, manager, or agent of the
limited liability company under paragraph (1) of subdivision (a), is
abated within the time prescribed for reporting, unless the
appropriate government agency requires disclosure by regulation.
(c) If the action reported to the Attorney General pursuant to
this section implicates the government authority of an agency other
than the Attorney General, the Attorney General shall promptly
forward the written notice to that agency.
(d) If the Attorney General was not notified pursuant to
subparagraph (A) of paragraph (2) of subdivision (a), but the limited
liability company reasonably and in good faith believed that it had
complied with the notification requirements of this section by
notifying a government agency listed in paragraph (5) of subdivision
(e), no penalties shall apply.
(e) For purposes of this section:
(1) "Manager" means a person defined by subdivision (w) of Section
17001 having both of the following:
(A) Management authority over the limited liability company.
(B) Significant responsibility for an aspect of the limited
liability company that includes actual authority for the financial
operations or financial transactions of the limited liability
company.
(2) "Agent" means a person or entity authorized by the limited
liability company to make representations to the public about the
limited liability company's financial condition and who is acting
within the scope of the agency when the representations are made.
(3) "Member" means a person as defined by subdivision (x) of
Section 17001 that is a member of the limited liability company at
the time the disclosure is required pursuant to subparagraph (B) of
paragraph (2) of subdivision (a).
(4) "Notify its members" means to give sufficient description of
an action taken or about to be taken that would constitute acts or
omissions as described in paragraph (1) of subdivision (a). A notice
or report filed by a limited liability company with the United
States Securities and Exchange Commission that relates to the facts
and circumstances giving rise to an obligation under paragraph (1) of
subdivision (a) shall satisfy all notice requirements arising under
paragraph (2) of subdivision (a) but shall not be the exclusive means
of satisfying the notice requirements, provided that the Attorney
General or appropriate agency is informed in writing that the filing
has been made together with a copy of the filing or an electronic
link where it is available online without charge.
(5) "Appropriate government agency" means an agency on the
following list that has regulatory authority with respect to the
financial operations of a limited liability company:
(A) Department of Corporations.
(B) Department of Insurance.
(C) Department of Financial Institutions.
(D) Department of Managed Health Care.
(E) United States Securities and Exchange Commission.
(6) "Actual knowledge of the limited liability company" means the
knowledge a member, officer, or manager of a limited liability
company actually possesses or does not consciously avoid possessing,
based on an evaluation of information provided pursuant to the
limited liability company's disclosure controls and procedures.
(7) "Refuse to make a book entry" means the intentional decision
not to record an accounting transaction when all of the following
conditions are satisfied:
(A) The independent auditors required recordation of an accounting
transaction during the course of an audit.
(B) The audit committee of the limited liability company has not
approved the independent auditor's recommendation.
(C) The decision is made for the primary purpose of rendering the
financial statements materially false or misleading.
(8) "Refuse to post any notice required by law" means an
intentional decision not to post a notice required by law when all of
the following conditions exist:
(A) The decision not to post the notice has not been approved by
the limited liability company's audit committee.
(B) The decision is intended to give the membership shares in the
limited liability company a materially greater or a materially less
apparent market value than they really possess.
(9) "Misstate or conceal material facts from a regulatory body"
means an intentional decision not to disclose material facts when all
of the following conditions exist:
(A) The decision not to disclose material facts has not been
approved by the limited liability company's audit committee.
(B) The decision is intended to give the membership shares in the
limited liability company a greater or a less apparent market value
than they really possess.
(10) "Material false statement or omission" means an untrue
statement of material fact or an omission to state a material fact
necessary in order to make the statements made under the
circumstances under which they were made not misleading.
(11) "Officer" means a person appointed pursuant to Section 17154,
except an officer of a specified subsidiary limited liability
company who is not also an officer of the parent limited liability
company.
(f) This section only applies to limited liability companies that
are issuers, as defined in Section 2 of the Sarbanes-Oxley Act of
2002 (15 U.S.C. Sec. 7201 and following).
(g) An action to enforce this section may only be brought by the
Attorney General or a district attorney or city attorney in the name
of the people of the State of California.
SEC. 53. Section 8266.1 of the Education Code is amended to read:
8266.1. Commencing with the 1995-96 fiscal year and each fiscal
year thereafter, for the purposes of this chapter, reimbursement
rates shall be adjusted by the following reimbursement factors for
child care and development programs with a standard reimbursement
rate, but shall not apply to the Resource and Referral Programs set
forth in Article 2 (commencing with Section 8210), the Alternative
Payment Programs set forth in Article 3 (commencing with Section
8220), the State Preschool Programs set forth in Article 7
(commencing with Section 8235), the School-age Community Child Care
Services programs set forth in Article 22 (commencing with Section
8460), or to the school-age parent and infant development programs:
(a) For child care and development program providers serving
children for less than four hours per day, the reimbursement factor
is 55 percent of the standard reimbursement rate.
(b) For child care and development program providers serving
children for not less than four hours per day, and less than six and
one-half hours per day, the reimbursement factor is 75 percent of the
standard reimbursement rate. For providers operating under the At
Risk Child Care Program set forth in Article 15.5 (commencing with
Section 8350) and serving children for not less than four hours per
day, and less than seven hours per day, the reimbursement factor is
75 percent of the standard reimbursement rate.
(c) For child care and development program providers serving
children for not less than six and one-half hours per day, and less
than 10 and one-half hours per day, the reimbursement factor is 100
percent of the standard reimbursement rate. For providers operating
under the At Risk Child Care Program set forth in Article 15.5
(commencing with Section 8350) and serving children for not less than
seven hours per day, and less than 10 hours per day, the
reimbursement factor is 100 percent of the standard reimbursement
rate.
(d) For child care and development program providers serving
children for 10 and one-half hours or more per day, the reimbursement
factor is 118 percent of the standard reimbursement rate.
SEC. 54. Section 8813 of the Education Code is amended to read:
8813. (a) Each eligible local arts agency may apply for a grant
of up to one hundred thousand dollars ($100,000) per year for the
development, implementation, and review of an arts education program.
Each grant application shall be preceded by a letter of intent to
file that application submitted by the local arts agency on or before
the January 1 immediately preceding the fiscal year for which grant
funding is requested. Each eligible local arts agency shall include
in its letter of intent an authorization to make application to this
program from the county board of supervisors if the agency is a
county agency or designated by the county board of supervisors, or
from the city council if the agency is an agency of the city or is
designated by the city. If the local arts agency is neither
designated by, nor a department of, either city or county government,
it shall include authorization by its board of trustees authorizing
the agency to make application under this program.
(b) Each grant application shall include, but not be limited to,
all of the following:
(1) A plan for the proposed arts education program that meets all
of the following criteria:
(A) The plan has been approved by resolution of the governing
board of each participating school district or by the county board of
education.
(B) The plan includes an assessment of the needs of public schools
included in the partnership located within the jurisdiction of the
local arts agency that is consistent with the guidelines for those
assessments developed by the department in consultation with the
California Arts Council. The plan shall evidence appropriate
participation by local citizens who are representative of the ethnic
and cultural composition of the county.
(C) The plan shall describe a comprehensive arts education program
that conforms to the tenets of the state's adopted curriculum
framework for visual and performing arts as published by the
department in Visual and Performing Arts Framework for California
Public Schools: Kindergarten through Grade 12, and shall include
instruction in the four disciplines of dance, drama and theatre,
music, and the visual arts for all pupils. The plan may also include
other arts disciplines, including folk arts, film, video, and the
writing of plays, scripts, and poetry.
(D) The plan proposes the use of community arts resources,
including, but not limited to, professional artists, arts
specialists, performing artists and companies, museums, nonprofit art
galleries, institutions of higher education, resident artists
organizations, and any program of the local arts agency or general
community resources that provide arts education services,
instruction, workshops, performances, or demonstrations.
(E) The plan provides for a local steering committee comprised of
not less than 10, nor more than 13, members selected from
professional artists, arts educators, administrators, teachers, arts
organizations, school board members, and other citizens, to include
the following members reflecting a balance between the education and
the arts communities:
(i) One representative of the local arts agency.
(ii) Two professional artists.
(iii) One representative of a local educational agency.
(iv) Two teachers, including one from the local educational
agency.
(v) Two arts specialists.
(vi) One community representative at large.
(vii) One representative of an institution of higher education,
who shall be either a faculty member in the visual and performing
arts or arts education or have had prior experience in these two
areas.
(F) The plan describes school needs, program goals, and a process
for screening community arts resources. The fiscal procedures and
pay rates shall be in accordance with standards established by the
California Arts Council. Any of the community arts resources
described in subparagraph (D) are eligible for a program grant if
they demonstrate high-quality arts performance, production, or
instruction.
(G) The plan shall include an appropriate orientation for artists
and teachers in participating schools.
(H) The plan shall include a staff development program which
accounts for at least 10 percent of the overall budget for the plan,
but not more than 20 percent of the overall budget for all public
school teachers participating in the program under the California
Arts Project, as established pursuant to Chapter 5 (commencing with
Section 99200) of Part 65. For the purposes of this paragraph, a
teacher is participating in the program if he or she instructs a
class that will have more than 10 hours of direct contact with a
community arts representative.
(I) The plan shall include a description of the manner in which
funding for the staff development programs described in subparagraph
(H) shall be used in providing services to teachers. The local
educational agency shall use the services of the California Arts
Project established pursuant to Chapter 5 (commencing with Section
99200) of Part 65 and shall consult with at least one of the
following entities in developing the staff development plans: a
county office of education, an arts agency, an arts provider, a
professional arts association, or an institution of higher education.
(J) The plan shall assess the arts education of homeless children,
children with special needs, children at risk, school dropouts, and
the children of migrant workers who may not be attending class
regularly. It is the intent of the Legislature that special
supplementary funds, not to exceed 10 percent of the total state
dollars, shall be appropriated for purposes of this subparagraph.
Arts education delivered pursuant to this paragraph is exempt from
the local matching funds requirement described in Section 8814.
(2) A proposed budget for expenditure of the grant, which shall be
submitted on a form developed by the California Arts Council for
that purpose.
(3) A section demonstrating the manner in which the proposal
furthers the implementation of the model curriculum standards set
forth in Section 51226, the Visual and Performing Arts Framework for
California Public Schools: Kindergarten through Grade Twelve
published by the department, or the implementation or operation of
specialized secondary programs pursuant to Chapter 6 (commencing with
Section 58800) of Part 31.
(4) A section designating the source of all local matching funds,
as described in Section 8814.
SEC. 55. Section 8825 of the Education Code is amended to read:
8825. An eligible applicant may submit a project proposal that
addresses one or more of the following areas:
(a) Arts education programs that are aligned to the state adopted
visual and performing arts content standards and framework.
(b) Pupil assessment in the arts.
(c) Participation in local and state networks to create
comprehensive standards based arts education programs.
(d) Expanding the capacity to assist pupils in achieving the state
adopted visual and performing arts content standards.
(e) Developing an online statewide digital visual and performing
arts resource center.
(f) Expanding arts education programs developed through
participation in the Local Arts Education Partnership Program as set
forth in Chapter 5 (commencing with Section 8810).
SEC. 56. Section 17077.45 of the Education Code is amended to
read:
17077.45. (a) The board shall establish standards for determining
the amount of the supplemental grant funding to be made available
for each project under this article.
(1) For a project application qualifying for funding under
paragraph (1) of subdivision (b) of Section 17077.40, the
supplemental grant shall be in the form of an adjustment to the
per-pupil eligibility of the project. This per-pupil eligibility
adjustment shall be calculated to cover costs associated with the
project that are uniquely related to the joint-use nature of the
project, including, but not limited to, any increased costs
associated with planning the joint-use aspect of the project.
(2) For a project application qualifying under paragraph (2) or
(3) of subdivision (b) of Section 17077.40, the supplemental grant
may be provided without regard to the existence of per-pupil
eligibility pursuant to this chapter, and may be expressed on a
per-square-foot cost basis, on a per-pupil cost basis, or on a
per-project cost basis.
(b) Notwithstanding any other provision of this chapter, project
costs may exceed the board's standards established pursuant to
subdivision (a) only if the excess is paid completely by local or
joint-use partner sources.
(c) On July 1 of each year the board shall apportion to qualifying
applicant school districts those funds that it determines are
available for the purpose of this article. The board shall not
release funds to a qualifying applicant until the project plans have
received all approval required pursuant to this chapter, including,
but not limited to, the approval of the Division of the State
Architect. If the project does not receive all necessary plan
approvals within one year of the date of the apportionment, the board
shall rescind the apportionment.
(d) If the total funding for the purposes of this article is not
sufficient to fund all of the joint-use projects for funding under
this article, the board shall first fund projects eligible under
paragraphs (1), (2), and (3) of subdivision (b) of Section 17077.40
in that order. The board may establish other priority standards
within that order, as necessary.
(e) Except as expressly provided in this article, projects funded
pursuant to this article shall comply with all other requirements of
this chapter, except for Article 11 (commencing with Section
17078.10), which shall apply only to projects under this article if
they also qualify for funding under Article 11 (commencing with
Section 17078.10).
SEC. 57. Section 17334 of the Education Code is amended to read:
17334. During the construction of a private school structure, the
enforcement agency shall require the engineer of record responsible
for the structural design, or that engineer's authorized
representative, to make periodic reviews of construction at the
construction site to observe compliance with the approved structural
plans, specifications, and change orders. The engineer of record in
general responsible charge of the work of construction, and the
registered professional engineer, shall make a report, duly verified
by him or her through periodic review of construction, showing that
the work done during the period covered by the report has been
performed and that the materials used and installed are in accordance
with the approved drawings and specifications. Any detailed
statements of fact required by the enforcement agency shall be
included. These observations and statements shall not be relied upon
by others as acceptance of the work, nor shall they be construed to
relieve the contractor in any way of his or her obligations and
responsibilities under the construction contract.
"Periodic review of construction," as used in this section and as
applied to the architect, civil engineer, structural engineer, or the
registered professional engineer, means the knowledge that is
obtained from periodic visits of reasonable frequency to the project
site for the purpose of general observation of the work. It also
means the knowledge that is obtained from the reporting of others as
to the progress of the work, testing of materials, inspection, and
superintendence of the work that is performed between those periodic
visits of the architect, civil engineer, or structural engineer, or
the registered engineer. The exercise of reasonable diligence to
obtain the facts is required. "Periodic review of construction" does
not include responsibility for superintendence of construction
processes, site conditions, operations, equipment, personnel, or
maintenance of a safe place to work or any safety in, on, or about
the site of work.
SEC. 58. Section 17360 of the Education Code is amended to read:
17360. Sections 17297, 17302, 17307, 17309, and 17311 shall not
apply with respect to the design and construction of onsite work
except where required by Section 17358.
SEC. 59. Section 22852 of the Education Code is amended to read:
22852. (a) An employer reemploying a member of the Defined
Benefit Program with service subject to the requirements of Chapter
43 (commencing with Section 4301) of Title 38 of the United States
Code shall be liable to the plan for the employer contributions under
this part, provided that employer was the last employer employing
the member immediately prior to the period served by the member in
the uniformed services.
(b) For purposes of determining the amount of that liability under
this part and any obligation to the plan with respect to the Defined
Benefit Program, interest shall not be included in the liability to
the plan.
(c) Subject to subdivision (e), the employer shall pay the
employer contributions for the eligible period of service in the
uniformed services that would have been required under Sections 22950
and 22951 had the member remained continuously employed during that
period of eligible service in the uniformed services.
(d) The employer shall not be liable for employer contributions
under this part for the eligible period of service in the uniformed
services to the extent that the member fails to remit the member
contributions for that period.
(e) The employer shall provide information regarding the
reemployment of a member who is subject to Chapter 43 (commencing
with Section 4301) of Title 38 of the United States Code on a form
prescribed by the system within 30 days of the date of reemployment.
(f) Employers shall remit to the plan with respect to the Defined
Benefit Program the employer contributions required under subdivision
(c) within 60 working days of the date the system notifies the
employer of the amount of contributions due with respect to the
member who elects to remit the member contributions for the eligible
period of service in the uniformed services.
(g) If the employee does not comply with subdivision (b) of
Section 22851 within the time period specified, the employer
contributions that were remitted for that period shall be adjusted
pursuant to Section 23008.
SEC. 60. Section 22854 of the Education Code is amended to read:
22854. A reemployed member who has been absent from a position of
employment subject to coverage under the Defined Benefit Program to
perform service in the uniformed services, pursuant to Section 22850,
for a period in excess of five years shall not be entitled to
service credit or credit for plan vesting purposes under this part,
except where the service in the uniformed services has exceeded five
years for the following reasons:
(a) The member is required to serve beyond five years to complete
an initial period of obligated service.
(b) The member was unable to obtain orders releasing the member
from a period of service in the uniformed services before the
expiration of the five-year period and that inability was through no
fault of the member.
(c) The member served in the uniformed services as required
pursuant to Section 270 of Title 10 of the United States Code,
Section 502(a) or 503 of Title 32 of the United States Code, or to
fulfill additional training requirements determined and certified in
writing by the Secretary of Defense, to be necessary for professional
development, or for completion of skill training or retraining.
(d) The member is ordered to do any of the following:
(1) Ordered to or retained on active duty under Section 672(a),
672(g), 673, 673(b), 673(c), or 688 of Title 10 of the United States
Code or under Section 331, 332, 359, 360, 367, or 712 of Title 14 of
the United States Code.
(2) Ordered to or retained on active duty, other than for
training, under any provision of law during a war or during a
national emergency declared by the President or the Congress.
(3) Ordered to active duty, other than for training, in support,
as determined by the secretary concerned, of an operational mission
for which personnel have been ordered to active duty under Section
673(b) of Title 10 of the United States Code.
(4) Ordered to active duty in support, as determined by the
secretary concerned, of a critical mission or requirement of the
uniformed services.
(5) Called into federal service as a member of the National Guard
under Chapter 15 (commencing with Section 331) of Title 10 of the
United States Code or under Section 3500 or 8500 of Title 10 of the
United States Code.
SEC. 61. Section 27403 of the Education Code is amended to read:
27403. The nonparticipant spouse who is awarded separate nominal
accounts pursuant to Section 27402 is not a participant of the Cash
Balance Benefit Program. The nonparticipant spouse is entitled only
to rights and benefits explicitly established by this chapter.
SEC. 62. Section 32265 of the Education Code is amended to read:
32265. (a) The partnership shall sponsor at least two regional
conferences for school districts, county offices of education, youth
serving agencies, allied agencies, community-based organizations, and
law enforcement agencies to identify exemplary programs and
techniques that have been effectively utilized to reduce school
crime, including hate crimes, vandalism, drug and alcohol abuse, gang
membership and gang violence, truancy, and excessive absenteeism.
(b) The conference may include, but need not be limited to,
information on all of the following topics:
(1) Interagency collaboration between schools, youth serving
agencies, law enforcement agencies, and others.
(2) School attendance.
(3) School safety.
(4) Citizenship education.
(5) Drug and alcohol abuse.
(6) Child abuse prevention, detection, and reporting.
(7) Parental education.
(8) Crisis response training.
(9) Bullying prevention.
(10) Threat assessment.
(11) Conflict resolution and youth mediation.
(12) Teen relationship violence.
(13) Discrimination and harassment reporting and prevention,
including, but not limited to, sexual harassment reporting and
prevention.
(14) Hate crime reporting and prevention.
(15) Reporting and prevention of abuse against pupils with
disabilities.
SEC. 63. Section 42238.41 of the Education Code is amended to
read:
42238.41. (a) For the 1996-97 fiscal year, the county
superintendent of schools, in conjunction with the Superintendent of
Public Instruction, shall compute an equalization adjustment for each
school district in the county, so that no district's 1995-96 base
revenue limit per unit of average daily attendance is less than the
1995-96 fiscal year statewide average base revenue limit for the
appropriate size and type of district listed in subdivision (b).
For purposes of this section, the district base revenue limit and
the statewide average base revenue limit shall not include any
amounts attributable to Section 45023.4, 46200, or 46201.
(b) Subdivision (a) shall apply to the following school districts,
which shall be grouped according to size and type as follows:
District ADA
Elementary .................. less than 101
Elementary .................. more than 100
High School ................. less than 301
High School ................. more than 300
Unified ..................... less than 1,501
Unified ..................... more than 1,500
(c) The Superintendent of Public Instruction shall compute a
revenue limit equalization adjustment for each school district's base
revenue limit per unit of average daily attendance as follows:
(1) Add the products of the amount computed for each school
district by the county superintendent pursuant to subdivision (a) and
the average daily attendance used to calculate the district's
revenue limit for the current fiscal year as adjusted for the deficit
factor in Section 42238.145.
(2) Divide the amount appropriated for purposes of this section
for the current fiscal year by the amount computed pursuant to
paragraph (1).
(3) Multiply the amount computed for the school district pursuant
to subdivision (a) by the amount computed pursuant to paragraph (2).
(d) For the purposes of this section, the 1995-96 statewide
average base revenue limits determined for the purposes of
subdivision (a) and the fraction computed pursuant to paragraph (2)
of subdivision (c) by the Superintendent of Public Instruction for
the 1995-96 second principal apportionment shall be final, and shall
not be recalculated at subsequent apportionments. In no event shall
the fraction computed pursuant to paragraph (2) of subdivision (c)
exceed 1.00. For the purposes of determining the size of a district
used in subdivision (b), county superintendents of schools, in
conjunction with the Superintendent of Public Instruction, shall use
a school district's revenue limit average daily attendance for the
1995-96 fiscal year as determined pursuant to Section 42238.5 and
Article 4 (commencing with Section 42280).
SEC. 64. Section 44279.2 of the Education Code is amended to read:
44279.2. (a) The superintendent and the commission shall jointly
administer the Beginning Teacher Support and Assessment System
pursuant to this chapter. In administering this section, the
superintendent and the commission shall provide or contract for the
provision of all of the following:
(1) Establishing requirements for reviewing and approving teacher
induction programs.
(2) Developing and administering a system for ensuring teacher
induction program quality and effectiveness. For the purposes of
this section, "program effectiveness" means producing excellent
program outcomes in relation to the purposes defined in subdivision
(b) of Section 44279.1. For the purposes of this section, "program
quality" means excellence with respect to program factors, including,
but not limited to, all of the following:
(A) Program goals.
(B) Design resources.
(C) Management, evaluation, and improvement of the program.
(D) School context and working conditions.
(E) Support and assessment services to each beginning teacher.
(3) Developing purposes and functions for reviewing and approving
supplemental grants and standards for program clusters and program
consultants, as defined pursuant to Section 44279.7.
(4) Improving and refining the formative assessment system.
(5) Improving and refining professional development materials and
strategies for all personnel involved in implementing induction
programs.
(6) Conducting and tracking research related to beginning teacher
induction.
(7) Periodically evaluating the validity of the California
Standards for the Teaching Profession adopted by the commission in
January 1997 and the Standards of Quality and Effectiveness for
Beginning Teacher Support and Assessment Program adopted by the
commission in 1997 and making changes to those documents, as
necessary.
(b) As part of the Beginning Teacher Support and Assessment
System, the commission and the superintendent shall establish
requirements for local teacher induction programs.
(c) A school district or consortium of school districts may apply
to the superintendent for funding to establish a local teacher
induction program pursuant to this section. From amounts
appropriated for the purposes of this section, the superintendent
shall allocate three thousand dollars ($3,000) for each beginning
teacher participating in the program. That amount shall be adjusted
each fiscal year by the inflation factor set forth in Section
42238.1. To be eligible to receive funding, a school district or
consortium of school districts shall, at a minimum, meet all of the
following requirements:
(1) Develop, implement, and evaluate teacher induction programs
that meet the Quality and Effectiveness for Beginning Teacher
Induction Program Standards adopted by the commission in 1997.
(2) Support beginning teachers in meeting the competencies
described in the California Standards for the Teaching Profession
adopted by the commission in January 1997.
(3) Meet criteria for the cost-effective delivery of program
services.
(4) From amounts received from local, state, or resources
available for the purposes of teacher induction programs, contribute
not less than two thousand dollars ($2,000) for the costs of each
beginning teacher served in the induction program.
(d) Teachers who have received their preliminary credential in a
district intern program pursuant to Article 7.5 (commencing with
Section 44325) or an intern program pursuant to Article 3 (commencing
with Section 44450) of Chapter 3 and who are participating in an
induction program pursuant to this section are not eligible for
funding pursuant to Article 11 (commencing with Section 44380) of
Chapter 2.
SEC. 65. Section 44328 of the Education Code is amended to read:
44328. (a) Unless the commission determines that substantial
evidence exists that a person is unqualified to teach, upon the
completion of successful service as a district intern pursuant to
subdivision (b) of Section 44325, and upon the recommendation of the
school district governing board, the commission shall award
professional credentials to district interns in the same manner as
applicants recommended for credentials by institutions that operate
approved programs of professional preparation.
(b) Notwithstanding paragraphs (1) and (2) of subdivision (a) of
Section 44225, paragraphs (3), (4), (5), and (6) of subdivision (b)
of Section 44259, paragraphs (1), (2), (3), and (4) of subdivision
(c) of Section 44259, and Sections 44261, 44265, and 44335, it is the
intent of the Legislature that, upon recommendation by the governing
board, district interns shall be issued professional credentials,
rather than preliminary credentials, upon the completion of
successful service as a teacher pursuant to subdivision (b) of
Section 44325, unless the governing board recommends, and the
commission finds substantial evidence, that the person is not
qualified to teach. A school district may require a district intern
who is pursuing a professional credential to complete an approved
induction program if funds are available or approved coursework in
accordance with paragraph (5) of subdivision (c) of Section 44259.
Pursuant to Article 11 (commencing with Section 44380), teachers
participating in an induction program pursuant to Article 4.5
(commencing with Section 44279.1) are no longer eligible for funding
under the district intern program.
(c) Notwithstanding subdivisions (a) and (b), the governing board
of a school district may request the commission to issue a
preliminary teaching credential to an intern who has met the
requirements for a preliminary teaching credential, as specified in
subdivision (b) of Section 44259, but who has not successfully
completed the requirements for a professional clear credential
pursuant to subdivision (c) of Section 44259.
(d) Notwithstanding Section 44261, the preliminary credential
awarded to any district intern holding a district intern credential
to teach bilingual education classes shall be a basic teaching
credential with a bilingual-crosscultural language and academic
development emphasis. Notwithstanding Section 44265, the preliminary
credential awarded to any district intern who holds a district
intern credential to teach special education pupils with mild and
moderate disabilities shall be a special education specialist
instruction credential that authorizes the holder to teach special
education pupils with mild and moderate disabilities.
(e) It is the intent of the Legislature that institutions of
higher education that operate approved programs of professional
preparation work cooperatively with school districts that offer
district intern programs for a special education specialist
credential to apply the regular education coursework and fieldwork
from the special education district intern program toward earning a
multiple or single subject teaching credential through the
institution.
SEC. 66. Section 44735 of the Education Code is amended to read:
44735. (a) The Teaching As A Priority Block Grant is hereby
created to be administered by the department with the approval of the
State Board of Education. The department shall award block grants
to school districts on a competitive basis to provide incentives to
attract credentialed teachers to be employed and retained in
high-priority schools.
(b) (1) To be eligible to receive a full block grant in the third
year of participation, a school district shall demonstrate a net
decrease in the number of teachers holding an emergency permit or
waiver at each school ranked in the bottom half of the Academic
Performance Index pursuant to Article 2 (commencing with Section
52051) of Chapter 6.1.
(2) After two years of receiving a block grant, a school district
that fails to demonstrate a net decrease in the number of teachers
holding an emergency permit or waiver at any of its schools ranked in
the bottom half of the Academic Performance Index shall have the
amount of the school's block grant reduced by the amount of funds
generated by pupils enrolled in that school.
(3) For purposes of this subdivision, "net decrease" shall be
determined by comparing the number of teachers employed who hold an
emergency permit or waiver at the end of the second year of
implementation to the number of teachers employed who held an
emergency permit or waiver prior to the implementation of the block
grant.
(4) This subdivision does not apply to any school district with
fewer than 2,501 units of average daily attendance that is in a
county that is within the fourth through eighth class as defined in
Section 1205.
(5) This subdivision is applicable only when stable funding for
the Teaching As A Priority Block Grant program is provided in the
annual Budget Act. For purposes of this subdivision, stable funding
means no more than a 5-percent variation in funding from one fiscal
year to the next.
(c) (1) Block grant funds may be used at the discretion of a
school district for teacher recruitment and retention incentives with
the target of reducing the number of teachers on emergency permits.
Incentives shall only be used to hire and retain credentialed
teachers. Teacher recruitment and retention incentives may include,
but are not limited to, all of the following:
(A) Signing bonuses.
(B) Improved work conditions.
(C) Teacher compensation.
(D) Housing subsidies.
(2) A school district receiving block grant funds pursuant to this
section may offer incentives to recruit and retain credentialed
teachers interested in attaining certification pursuant to Section
44253.3 or 44253.4. Those incentives may include, but are not limited
to, both of the following:
(A) Reimbursements to cover the costs of examinations necessary to
attain certification pursuant to Sections 44253.3 and 44253.4.
(B) Reimbursements to cover the costs of coursework necessary for
preparation programs offering emphasis in certification pursuant to
Sections 44253.3 and 44253.4.
(d) Funding shall be allocated to school districts on a per-pupil
basis for pupils enrolled in schools ranked in the bottom half of the
Academic Performance Index pursuant to Article 2 (commencing with
Section 52051) of Chapter 6.1. Within the bottom half of the
academic performance index, schools ranked in deciles 1, 2, and 3
shall receive 11/2 times the funding per pupil of schools ranked in
deciles 4 and 5. No less than the amount of funding generated by
pupils in schools ranked in deciles 1, 2, and 3 shall be expended in
those schools.
(e) School districts shall apply to the department on behalf of
their schools. The district application shall contain information
that is specific to each school. Applications shall contain baseline
information on the number of teachers with waivers or emergency
permits at each school in accordance with subdivision (c).
(f) School districts that participate in the program established
in this section shall be encouraged to participate in regional
teacher recruitment centers operated by consortia pursuant to Section
44751.
(g) Funds appropriated for the purposes of this chapter shall
supplement, and not supplant, existing efforts to recruit and retain
fully credentialed teachers in the school district.
(h) The State Board of Education shall submit an evaluation of the
program created by this chapter to the Legislature by January 1,
2004.
SEC. 67. Section 44830.3 of the Education Code is amended to read:
44830.3. (a) The governing board of any school district that
maintains kindergarten or grades 1 to 12, inclusive, classes in
bilingual education, or special education programs for pupils with
mild and moderate disabilities may, in consultation with an
accredited institution of higher education offering an approved
program of pedagogical teacher preparation, employ persons authorized
by the Commission on Teacher Credentialing to provide service as
district interns to provide instruction to pupils in those grades or
classes as a classroom teacher. The governing board shall require
that each district intern be assisted and guided by a certificated
employee selected through a competitive process adopted by the
governing board after consultation with the exclusive teacher
representative unit or by personnel employed by institutions of
higher education to supervise student teachers. These certificated
employees shall possess valid certification at the same level, or of
the same type, of credential as the district interns they serve.
(b) The governing board of each school district employing district
interns shall develop and implement a professional development plan
for district interns in consultation with an accredited institution
of higher education offering an approved program of pedagogical
preparation. The professional development plan shall include all of
the following:
(1) Provisions for an annual evaluation of the district intern.
(2) As the governing board determines necessary, a description of
courses to be completed by the district intern, if any, and a plan
for the completion of preservice or other clinical training, if any,
including student teaching.
(3) Mandatory preservice training for district interns tailored to
the grade level or class to be taught, through either of the
following options:
(A) One hundred twenty clock hours of preservice training and
orientation in the aspects of child development, classroom
organization and management, pedagogy, and methods of teaching the
subject field or fields in which the district intern will be
assigned, which training and orientation period shall be under the
direct supervision of an experienced permanent teacher. In addition,
persons holding district intern certificates issued by the
commission pursuant to Section 44325 shall receive orientation in
methods of teaching pupils with mild and moderate disabilities. At
the conclusion of the preservice training period, the permanent
teacher shall provide the district with information regarding the
area that should be emphasized in the future training of the district
intern.
(B) The successful completion, prior to service by the intern in
any classroom, of six semester units of coursework from a regionally
accredited college or university, designed in cooperation with the
school district to provide instruction and orientation in the aspects
of child development and the methods of teaching the subject matter
or matters in which the district intern will be assigned.
(4) Instruction in child development and the methods of teaching
during the first semester of service for district interns teaching in
kindergarten or grades 1 to 6, inclusive, including bilingual
education classes and, for persons holding district intern
certificates issued by the commission pursuant to Section 44325,
special education programs for pupils with mild and moderate
disabilities at those levels.
(5) Instruction in the culture of and methods of teaching
bilingual children during the first year of service for district
interns teaching children in bilingual classes and, for persons
holding district intern certificates issued by the commission
pursuant to Section 44325, instruction in the etiology of and methods
of teaching children with mild and moderate disabilities.
(6) Any other criteria that may be required by the governing
board.
(7) In addition to the requirements set forth in paragraphs (1) to
(6), inclusive, the professional development plan for district
interns teaching in special education programs for pupils with mild
and moderate disabilities also shall include 120 clock hours of
mandatory training and supervised fieldwork that shall include, but
not be limited to, instructional practices, and the procedures and
pedagogy of both general education programs and special education
programs that teach pupils with disabilities.
(8) In addition to the requirements set forth in paragraphs (1) to
(6), inclusive, the professional development plan for district
interns teaching bilingual classes shall also include 120 clock hours
of mandatory training and orientation, which shall include, but not
be limited to, instruction in subject matter relating to
bilingual-crosscultural language and academic development.
(9) The professional development plan for district interns
teaching in special education programs for pupils with mild and
moderate disabilities shall be based on the standards adopted by the
commission as provided in subdivision (a) of Section 44327.
(c) Each district intern and each district teacher assigned to
supervise the district intern during the preservice period shall be
compensated for the preservice period required pursuant to
subparagraph (A) or (B) of paragraph (3) of subdivision (b). The
compensation shall be that which is normally provided by each
district for staff development or in-service activity.
(d) Upon completion of service sufficient to meet program
standards and performance assessments, the governing board may
recommend to the Commission on Teacher Credentialing that the
district intern be credentialed in the manner prescribed by Section
44328.
SEC. 68. Section 47634 of the Education Code is amended to read:
47634. The Superintendent of Public Instruction shall annually
compute a categorical block grant amount for each charter school as
follows:
(a) The superintendent shall compute, as of June 30, 1999, the
estimated statewide average amount of funding for other state
categorical aid per unit of average daily attendance received by
school districts in 1998-99, for each of four grade level ranges:
kindergarten and grades 1, 2, and 3; grades 4, 5, and 6; grades 7 and
8; and grades 9 to 12, inclusive. For purposes of this computation,
other state categorical aid is limited to the following programs:
(1) The Agricultural Vocational Education Incentive Program, as
set forth in Article 7.5 (commencing with Section 52460) of Chapter 9
of Part 28.
(2) Apprentice education established pursuant to Article 8
(commencing with Section 8150) of Chapter 1 of Part 6.
(3) The Beginning Teacher Support and Assessment System as set
forth in Article 4.5 (commencing with Section 44279.1) of Chapter 2
of Part 25.
(4) College preparation programs as set forth in Chapter 8
(commencing with Section 60830) of Part 33, the Academic Improvement
and Achievement Act as set forth in Chapter 12 (commencing with
Section 11020) of Part 7, and the advanced placement program as set
forth in Chapter 8.3 (commencing with Section 52240) of Part 28.
(5) Community day schools as set forth in Article 3 (commencing
with Section 48660) of Chapter 4 of Part 27.
(6) The Instructional Time and Staff Development Reform Program,
as set forth in Article 7.5 (commencing with Section 44579) of
Chapter 3 of Part 25.
(7) The School-Based Pupil Motivation and Maintenance Program and
Dropout Recovery Act, as set forth in Article 7 (commencing with
Section 54720) of Chapter 9 of Part 29.
(8) The Early Intervention for School Success Program, as set
forth in Article 4.5 (commencing with Section 54685) of Chapter 9 of
Part 29.
(9) Education Technology pursuant to Article 15 (commencing with
Section 51870.5) of Chapter 5 of Part 28.
(10) Foster youth programs pursuant to Chapter 11.3 (commencing
with Section 42920) of Part 24.
(11) Gifted and talented pupil programs pursuant to Chapter 8
(commencing with Section 52200) of Part 28.
(12) The Healthy Start Support Services for Children Act, as set
forth in Chapter 5 (commencing with Section 8800) of Part 6.
(13) High-Risk First-Time Offenders Program pursuant to Chapter 2
(commencing with Section 47760) of Part 26.95.
(14) The General Fund contribution to the State Instructional
Material Fund pursuant to Article 3 (commencing with Section 60240)
of Chapter 2 of Part 33.
(15) Intersegmental programs for kindergarten and grades 1 to 12,
inclusive, funded by Item 6110-230-0001 of Section 2.00 of the Budget
Act of 1998.
(16) Proposition 98 educational programs pursuant to Item
6110-231-0001 of Section 2.00 of the Budget Act of 1998.
(17) The California Mentor Teacher Program, as set forth in
Section 44253.6.
(18) The Miller-Unruh Basic Reading Act of 1965, as set forth in
Chapter 2 (commencing with Section 54100) of Part 29.
(19) The Morgan-Hart Class Size Reduction Act of 1989, as set
forth in Chapter 6.8 (commencing with Section 52080) of Part 28.
(20) Opportunity schools pursuant to Article 2 (commencing with
Section 48630) of Chapter 4 of Part 27.
(21) Partnership academies pursuant to Article 5 (commencing with
Section 54690) of Chapter 9 of Part 29.
(22) Mathematics staff development pursuant to Chapter 3.25
(commencing with Section 44695) and Chapter 3.33 (commencing with
Section 44720) of Part 25.
(23) Improvement of elementary and secondary education
pursuant to Chapter 6 (commencing with Section 52000) of Part 28.
(24) The School Community Policing Partnership Act of 1998, as set
forth in Article 6 (commencing with Section 32296) of Chapter 2.5 of
Part 19.
(25) The School/Law Enforcement partnership funded by Item
6110-226-0001 of Section 2.00 of the Budget Act of 1998.
(26) Specialized secondary schools pursuant to Chapter 6
(commencing with Section 58800) of Part 31.
(27) School personnel staff development and resource centers
pursuant to Chapter 3.1 (commencing with Section 44670) of Part 25.
(28) Supplemental grant funding, not otherwise included in the
programs described above, provided by Item 6110-230-0001 of Section
2.00 of the Budget Act of 1998.
(29) Academic progress and counseling review pursuant to Section
48431.6.
(30) The Schiff-Bustamante Standards-Based Instructional Materials
Program as set forth in Chapter 3.5 (commencing with Section 60450)
of Part 33.
(31) The Elementary School Intensive Reading Program, as set forth
in Chapter 16 (commencing with Section 53025) of Part 28.
(32) The California Public School Library Protection Act, as set
forth in Article 6 (commencing with Section 18175) of Chapter 2 of
Part 11.
(33) The California Peer Assistance and Review Program for
Teachers, as set forth in Article 4.5 (commencing with Section 44500)
of Chapter 3 of Part 25.
(34) The State Instructional Materials Fund, as set forth in
Article 3 (commencing with Section 60240) of Chapter 2 of Part 33.
(35) The Instructional Materials Funding Realignment Program, as
set forth in Chapter 3.25 (commencing with Section 60420) of Part 33.
(36) Mathematics and Reading Professional Development Program, as
set forth in Article 3 (commencing with Section 99230) of Chapter 5
of Part 65.
Notwithstanding any other provision of law, charter schools that
have received a block grant pursuant to this section are not eligible
to receive separate funding for programs enumerated in this
subdivision or any other state categorical aid programs established
on or after July 1, 1999, that are included in the calculation made
pursuant to this subdivision and for which charter schools are not
required to apply separately.
(b) For purposes of the computation prescribed by subdivision (a),
other state categorical aid may not include any of the following:
(1) Programs for which a charter school is required to apply
separately.
(2) Programs that support, or are provided in lieu of, capital
expenses.
(3) Funding for court-ordered or voluntary desegregation programs.
(4) Special education programs.
(5) Economic Impact Aid.
(6) Lottery funds.
(c) The superintendent shall annually adjust each of the amounts
computed pursuant to subdivision (a) to reflect programs that existed
on or after July 1, 1999, or their successors, that are subsequently
included in or deleted from the categorical block grant. The
Director of Finance shall annually recalculate the cumulative
percentage change required pursuant to subdivision (c) of Section
47634.5 by adjusting the base year and the budget year figures to
reflect those program shifts.
(d) The superintendent shall annually adjust each of the resulting
four amounts computed pursuant to subdivision (a) by the cumulative
percentage change from the 1998-99 fiscal year, as annually
calculated by the Director of Finance pursuant to Section 47634.5, in
the total amount of state funding per unit of average daily
attendance received by local educational agencies maintaining
kindergarten or any of grades 1 to 12, inclusive, for purposes that
apply toward meeting the requirements of Section 8 of Article XVI of
the California Constitution, exclusive of funding for adult
education, child development programs, special education, Economic
Impact Aid, revenue limits for school districts and county offices of
education, and programs for which a charter school is required to
apply separately. Programs for which charter schools are required to
apply separately are programs that expressly authorize or require a
charter school to apply for funding.
(e) The superintendent shall multiply each of the four amounts
computed in subdivision (d) by the charter school's average daily
attendance in the corresponding grade level ranges.
(f) The superintendent shall compute the statewide average amount
of funding per identified educationally disadvantaged pupil received
by school districts in the current year pursuant to Article 2
(commencing with Section 54020) of Chapter 1 of Part 29. This amount
shall be multiplied by the number of educationally disadvantaged
pupils enrolled in the charter school. The resulting amount, if
greater than zero, may not be less than the minimum amount of
Economic Impact Aid funding to which a school district of similar
size would be entitled pursuant to Section 54031. For purposes of
this subdivision, a pupil who is eligible for subsidized meals
pursuant to Section 49552 and is identified as an English language
learner pursuant to subdivision (a) of Section 306 shall count as two
pupils.
(g) The superintendent shall add the amounts computed in
subdivisions (e) and (f). The resulting amount shall be the charter
school's categorical block grant that the superintendent shall
apportion to each charter school from funds appropriated for this
purpose in the annual Budget Act or another statute.
(h) Notwithstanding any other provision of law, a charter school
is not eligible to apply for funding under any of the programs the
funding of which is included in the computation of the categorical
block grant. The Superintendent of Public Instruction shall annually
provide each charter school with a list of these programs and shall
ensure that a charter school receives timely notification of the
opportunity to apply for programs administered by the State
Department of Education that are excluded from the categorical block
grant.
(i) It is the intent of the Legislature to fully fund the
categorical block grant and to appropriate additional funding that
may be needed in order to compensate for unanticipated increases in
average daily attendance in charter schools. In any fiscal year in
which the department identifies a deficiency in the Charter School
Categorical Block Grant, the department shall identify programs that
are funded toward meeting the requirements of Section 8 of Article
XVI of the California Constitution that will have unobligated funds
for the year and the associated balances available. At the second
principal apportionment, the department shall provide the Department
of Finance with a list of those programs and their available
balances, and the amount of the deficiency in the Charter School
Categorical Block Grant. The Director of Finance shall verify the
amount of the deficiency in the Charter School Categorical Block
Grant and direct the Controller to transfer from those programs to
the Charter School Categorical Block Grant an amount equal to the
lesser of the amount available or the amount needed to fully fund the
Charter School Categorical Block Grant. The Department of Finance
shall request the transfer on or before July 1 and notify the Joint
Legislative Budget Committee within 45 days of the transfer.
(j) Categorical block grant funding may be used for any purpose
determined by the governing body of the charter school.
SEC. 69. Section 48200.7 of the Education Code is amended to read:
48200.7. (a) The State Department of Education shall identify the
three lowest performing elementary schools in the Compton Unified
School District for purposes of extending the school year for pupils
enrolled in kindergarten or grades 1 and 2 and for those pupils in
any of grades 3 to 5, inclusive, who are performing in mathematics or
English language arts two or more grade levels below the grade in
which those pupils are enrolled as determined under subdivision (d).
(b) Beginning with the 1998-99 school year, the Compton Unified
School District may identify schools of the district, in addition to
those identified pursuant to subdivision (a), that are among the
lowest performing schools in the district, and may provide extended
school year instruction pursuant to Section 41601.1 to any pupil
enrolled in kindergarten or any of grades 1 to 12, inclusive, in a
school identified pursuant to this subdivision who is performing in
mathematics or English language arts at a grade level that is two or
more grade levels below the grade in which that pupil is enrolled as
determined pursuant to subdivision (d).
(c) Notwithstanding subdivision (b) of this section and Section
41601.1, the amount of funding claimed by the district for extended
year instruction shall not in any year exceed twice the amount
claimed pursuant to this section in the 1997-98 fiscal year as
adjusted each year by the inflation adjustment determined pursuant to
Section 42238.1.
(d) The determination that a pupil is performing two or more grade
levels below the grade in which that pupil is enrolled shall be
based on any combination of the following:
(1) The California Achievement Test-Form E.
(2) The Spanish assessment of basic education.
(3) Proficiency tests required for graduation.
(4) District criterion reference tests based on state curriculum
guides.
(5) The STAR test.
(e) The Compton Unified School District shall test all pupils in
kindergarten and grades 1 to 12, inclusive, in its lowest performing
schools identified pursuant to subdivisions (a) and (b) prior to
those pupils beginning an extended school year program under this
section. At the end of the school year the school district shall
again test the pupils in kindergarten and grades 1 to 12, inclusive,
to determine the grade level at which those pupils are performing.
(f) The department shall approve each of the following areas in
each elementary school identified as high-priority pursuant to
subdivision (a):
(1) Curricula.
(2) Testing instruments.
(3) Schoolday length.
(4) Teacher selection, teacher mentoring, and staff development
processes.
(g) The department shall review teacher compensation, including
salary and benefits, in each elementary school identified as
high-priority pursuant to subdivision (a).
(h) The department shall collect data as to each of the following
items for each school in subdivisions (a) and (b):
(1) Instructional materials used by, and made available to, the
school.
(2) Teacher capacity.
(3) Any other baseline data deemed necessary by the department.
(i) Instruction provided to pupils subject to this section during
schooldays in excess of schooldays offered to other pupils shall be
devoted to instruction in basic skills in mathematics and English
language arts.
(j) In conjunction with the Legislative Analyst, the department
shall contract for an independent evaluation to determine the
effectiveness of the extended school year curriculum, instructional
program, and materials provided pursuant to this section and funded
pursuant to Section 41601.1 in improving pupil academic outcomes.
Testing and data collection conducted pursuant to this section shall
be administered under the oversight of the independent evaluator, who
shall be provided with copies of all test results. Results of the
evaluation shall be reported on or before January 1, 2002, to the
Superintendent of Public Instruction, the Legislative Analyst, the
Director of Finance, and the appropriate policy and fiscal committees
of the Legislature. The Compton Unified School District shall be
responsible for all costs incurred pursuant to this subdivision.
(k) A percentage of funding appropriated for purposes of this
section, in an amount to be determined by the Superintendent of
Public Instruction, shall be used for purposes of testing and data
collecting pursuant to this section.
SEC. 70. Section 49414.5 of the Education Code is amended to read:
49414.5. (a) In the absence of a credentialed school nurse or
other licensed nurse onsite at the school, each school district may
provide school personnel with voluntary emergency medical training to
provide emergency medical assistance to pupils with diabetes
suffering from severe hypoglycemia, and volunteer personnel shall
provide this emergency care, in accordance with standards established
pursuant to subdivision (b) and the performance instructions set
forth by the licensed health care provider of the pupil. A school
employee who does not volunteer or who has not been trained pursuant
to subdivision (b) may not be required to provide emergency medical
assistance pursuant to this subdivision.
(b) (1) The Legislature encourages the American Diabetes
Association to develop performance standards for the training and
supervision of school personnel in providing emergency medical
assistance to pupils with diabetes suffering from severe
hypoglycemia. The performance standards shall be developed in
cooperation with the department, the California School Nurses
Organization, the California Medical Association, and the American
Academy of Pediatrics. Upon the development of the performance
standards pursuant to this paragraph, the State Department of Health
Services' Diabetes Prevention and Control Program shall approve the
performance standards for distribution and make those standards
available upon request.
(2) Training established pursuant to this subdivision shall
include all of the following:
(A) Recognition and treatment of hypoglycemia.
(B) Administration of glucagon.
(C) Basic emergency followup procedures, including, but not
limited to, calling the emergency 911 phone number and contacting, if
possible, the pupil's parent or guardian and licensed health care
provider.
(3) Training by a physician, credentialed school nurse, registered
nurse, or certificated public health nurse according to the
standards established pursuant to this section shall be deemed
adequate training for the purposes of this section.
(4) (A) A school employee shall notify the credentialed school
nurse assigned to the school district if he or she administers
glucagon pursuant to this section.
(B) If a credentialed school nurse is not assigned to the school
district, the school employee shall notify the superintendent of the
school district, or his or her designee if he or she administers
glucagon pursuant to this section.
(5) All materials necessary to administer the glucagon shall be
provided by the parent or guardian of the pupil.
(c) In the case of a pupil who is able to self-test and monitor
his or her blood glucose level, upon written request of the parent or
guardian, and with authorization of the licensed health care
provider of the pupil, a pupil with diabetes shall be permitted to
test his or her blood glucose level and to otherwise provide diabetes
self-care in the classroom, in any area of the school or school
grounds, during any school-related activity, and, upon specific
request by a parent or guardian, in a private location.
(d) For the purposes of this section, the following terms have the
following meanings:
(1) "School personnel" means any one or more employees of a school
district who volunteer to be trained to administer emergency medical
assistance to a pupil with diabetes.
(2) "Emergency medical assistance" means the administration of
glucagon to a pupil who is suffering from severe hypoglycemia.
SEC. 71. Section 49452.6 of the Education Code is amended to read:
49452.6. (a) A three-year pilot program is hereby established,
whereby any school district may participate in the program if the
cost of the school district's participation is covered with local
funding. Participating school districts shall, in conjunction with
the scoliosis screening performed pursuant to Section 49452.5, and
subject to Section 49451, and in addition to the physical
examinations required pursuant to Sections 100275, 124035, and 124090
of the Health and Safety Code, provide for the screening of every
female pupil in grade 7 and every male pupil in grade 8 for the risk
of developing type 2 diabetes mellitus. The screening shall be in
accord with standards and procedures developed by the State
Department of Education in consultation with the State Department of
Health Services' Diabetes Control Program, and adopted as regulations
by the State Board of Education. The screening shall be performed
and supervised only by qualified supervisors of health as specified
in Sections 44871 to 44878, inclusive, and Sections 49422 and
49452.5, or pursuant to contract with an agency authorized to perform
these services by the county superintendent of schools of the county
in which the district is located pursuant to Sections 1750 to 1754,
inclusive, and Section 49402, Section 101425 of the Health and Safety
Code, and guidelines established by the State Board of Education.
The screening shall be performed only by individuals who supervise,
or who are eligible to supervise, the scoliosis screening and have
been trained to conduct type 2 diabetes mellitus screening.
(b) The screening process shall be noninvasive and shall include,
but shall not be limited to, the following:
(1) Measuring the height and weight of the pupil to calculate the
pupil's body mass index.
(2) Examining the pupil's neck for acanthosis nigricans, a dark
pigmentation that may indicate a high insulin level.
(3) Documenting the pupil's ethnicity, based on existing school
records. Ethnicities that have the highest risk of developing type 2
diabetes mellitus include Latino, African-American, Asian, American
Indian, and Pacific Islander.
(4) Considering whether the pupil's existing health records
indicate a family history of type 2 diabetes mellitus.
(c) In-service training shall be provided to any person who will
be screening pupils for type 2 diabetes mellitus pursuant to this
section, unless the person has a health care license that already
qualifies him or her to perform that type of screening, and shall be
conducted by appropriately licensed health care providers acting
within the scope of their practice who have received specialized
training in screening for the risk of developing type 2 diabetes
mellitus.
(d) No person screening pupils for the risk of type 2 diabetes
mellitus pursuant to this section shall solicit, encourage, or advise
treatment or consultation by that person, or any entity in which
that person has a financial interest, for the risk of type 2 diabetes
mellitus or any other condition discovered in the course of the
screening.
(e) The State Department of Education, in consultation with the
State Department of Health Services' Diabetes Control Program, shall
select and review all educational and notification materials to be
sent to the parent or guardian of any pupil suspected of being at
risk for developing type 2 diabetes mellitus. Each participating
school district shall provide for the notification of the parent or
guardian of any pupil suspected of being at elevated risk of
developing type 2 diabetes mellitus, and the notification shall be
provided by mail. The notification shall be culturally and
linguistically appropriate, and shall include an explanation of the
meaning of being at elevated risk of developing type 2 diabetes
mellitus, the significance of exercise and weight control in
preventing the development of it, information on aspects of the
school environment that may contribute to obesity or type 2 diabetes
mellitus, information on Medi-Cal, the Healthy Families Program, the
Child Health and Disability Prevention Program, and other public
services available for helping with prevention, and referrals for the
pupil and the pupil's parent or guardian to appropriate community
resources, which shall be provided pursuant to Sections 49426 and
49456. The State Department of Health Services' Diabetes Control
Program may identify for the State Department of Education
information which may be distributed to parents on where health
assessments and health care, including free and low-cost, may be
obtained in communities across the state.
(f) A pupil shall be considered at elevated risk of developing
type 2 diabetes mellitus if the pupil's body mass index is above 85
percent and the screening process conducted pursuant to subdivision
(b) indicates that the pupil also meets one of the risk factors
described in paragraphs (2) to (4), inclusive, of that subdivision.
(g) No action of any kind in any court of competent jurisdiction
may be filed against any individual authorized by this section to
supervise or give a screening, by virtue of this section.
(h) It is the intent of the Legislature that no participating
healing arts licentiate use the screening program for the generation
of referrals or for his or her financial benefit. The Legislature
does not intend to deny or limit the freedom of choice in the
selection of an appropriate health care provider for treatment or
consultation.
(i) Each school district that participates in the pilot program
conducted pursuant to this section shall maintain data on the numbers
of pupils screened and found to be at risk of type 2 diabetes
mellitus. To the extent possible, the school shall subsequently
communicate with the parent or guardian of a pupil found to be at
elevated risk of type 2 diabetes mellitus in order to determine the
interventions, if any, that the parent or guardian has provided for
the pupil. The school district shall maintain this information for
the purpose of evaluation and reporting to the Legislature. Each
school district that participates in the pilot program shall report
to the State Department of Education by no later than June 30, 2006,
regarding all of the following:
(1) Its findings concerning the extent to which the pupil
population served by that school district is at risk of developing
type 2 diabetes mellitus.
(2) How the data reported in paragraph (1) compare to previous
assumptions about the extent to which the pupil population served by
that school district is at risk of developing type 2 diabetes
mellitus.
(3) Data on whether parents or guardians of pupils suspected of
being at risk for developing type 2 diabetes mellitus sought any
intervention as a result of the notification specified in subdivision
(e).
(j) Nothing in this section applies to, or in any way precludes,
the screening of pupils for type 2 diabetes mellitus by any
nonparticipating school district.
(k) 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. 72. Section 52015 of the Education Code is amended to read:
52015. Each plan shall include all of the following:
(a) Curricula, instructional strategies, and materials responsive
to the individual educational needs and learning styles of each pupil
that enable all pupils to do all of the following:
(1) Make continuous progress and learn at a rate appropriate to
their abilities.
(2) Master basic skills in language development and reading,
writing, and mathematics pursuant to Sections 51215 and 51216.
(3) Develop knowledge and skills in other aspects of the
curriculum, such as arts and humanities; physical, natural, and
social sciences; multicultural education; physical, emotional, and
mental health; consumer economics; and career education.
(4) Pursue educational interests and develop esteem for self and
others, personal and social responsibility, critical thinking, and
independent judgment.
Consideration shall be given to the use of community resources,
such as museums, libraries, and communications media, to achieve
instructional improvement objectives. In addition, consideration
shall be given to the use of education technology equipment,
including appropriate "technology-based materials," as defined in
Section 60017.1, in each component of the plan to achieve
instructional improvement objectives, and to the utilization for this
purpose of all funding resources available to the school district or
the schoolsite, including state categorical education programs.
(b) Instructional and auxiliary services to meet the special needs
of pupils of limited English proficiency consistent with Article 3
(commencing with Section 52160) of Chapter 7 of Part 28, including
instruction in a language such pupils understand; educationally
disadvantaged pupils; and pupils with exceptional abilities or needs.
(c) A staff development program for teachers, other school
personnel, paraprofessionals, and volunteers as provided in Section
52019.
(d) Improvement of the classroom and school environments,
including improvement of relationships between and among pupils,
school personnel, parents, and the community, and reduction of the
incidence among pupils of violence and vandalism.
(e) Other objectives as established by the council.
(f) The proposed expenditure of allowances provided pursuant to
Article 4 (commencing with Section 52045) and of other state or local
funds available to support the school improvement program.
(g) Ongoing evaluation and modification of the school improvement
plan by the council, based on information regarding the following:
(1) The degree to which the school is meeting its improvement
objectives as assessed by parents, teachers, other school personnel,
and pupils.
(2) Pupil achievement.
(3) Improved school environment as measured by indicators such as
(A) the incidence among pupils of absenteeism, suspension, expulsion,
and dropouts and the incidence and costs of school violence,
vandalism, and theft of school or private property while
participating in school activities, (B) pupil attitudes toward
school, self, and others, (C) incidence of absenteeism, resignations
and requests for transfers among teachers and other school personnel,
and (D) satisfaction of teachers, pupils, parents, administrators,
and other school personnel with school services and decisionmaking
processes.
(4) The degree to which fiscal expenditures meet the criteria of
the school improvement plan.
(h) Improvement of pupil attendance, including parent awareness of
the importance of regular school attendance.
SEC. 73. Section 52054 of the Education Code is amended to read:
52054. (a) Commencing in the 2001-02 fiscal year, by November 15
of the year that the school is selected to participate, the governing
board of a school district having jurisdiction over a school
selected for participation
in the program shall do one of the following:
(1) Contract with an external evaluator from the list of external
evaluators and shall appoint a broad-based schoolsite and community
team, consisting of a majority of nonschoolsite personnel. In a
school that has a limited-English-proficient pupil population that
constitutes at least 40 percent of the total pupil population, an
external evaluator shall have demonstrated experience in working with
a limited-English-proficient pupil population. Not less than 20
percent of the members of the team shall be parents or legal
guardians of pupils in the school.
(2) Contract with an entity that has proven, successful expertise
specific to the challenges inherent in high-priority schools. These
entities may include, but are not limited to, the following:
(A) Institutions of higher education.
(B) County offices of education.
(C) School district personnel.
(b) The selected external evaluator or entity shall solicit input
from the parents and legal guardians of the pupils of the school. At
a minimum, the evaluator or entity shall do all of the following:
(1) Inform the parents and legal guardians, in writing, that the
school has been selected to participate in the Immediate
Intervention/Underperforming Schools Program due to its below average
performance.
(2) Hold a public meeting at the school, in cooperation with the
principal, to which all parents and legal guardians of pupils in the
school receive a written invitation. The invitation to the meeting
may be combined with the written notice required by paragraph (1).
(3) Solicit, at the public meeting, the recommendations and
opinions of the participating parents and legal guardians of pupils
in the school regarding actions that should be taken to improve the
performance of the school. These opinions and recommendations shall
be considered by the external evaluator or entity and the community
team in the development or modification of the action plan pursuant
to this section or Section 52054.3.
(4) Provide technical assistance to the schoolsite.
(5) Notify all parents and legal guardians of pupils in the school
of their opportunity to provide written recommendations of actions
that should be taken to improve the performance of the school which
shall be considered by the external evaluator or entity and the
community team in the development or modification of the action plan
pursuant to this section or Section 52054.3. Notice required by this
subdivision may be combined with the written notice required by
paragraph (1).
(c) By February 15 of the school year in which the school is
selected to participate, the selected external evaluator or entity,
in collaboration with the broad-based schoolsite and community team
selected pursuant to subdivision (a), shall complete a review of the
school that identifies weaknesses that contribute to the school's
below average performance, make recommendations for improvement, and
begin to develop an action plan to improve the academic performance
of the pupils enrolled at the school. The action plan shall include
percentage growth targets at least as high as the annual growth
targets adopted by the State Board of Education pursuant to Section
52052. The action plan shall include an expenditure plan and shall
be of a scope that does not require expenditure of funds in excess of
those provided pursuant to this article or otherwise available to
the school. The action plan may not be of a scope that requires
reimbursement by the Commission on State Mandates for its
implementation.
(d) At a minimum, the action plan shall do all of the following:
(1) Review and include the school and district conditions
identified in the school accountability report card pursuant to
Section 33126.
(2) Identify the current barriers at the school and district
toward improvements in pupil achievement.
(3) Identify schoolwide and districtwide strategies to remove
these barriers.
(4) Review and include school and school district crime
statistics, in accordance with Section 628.5 of the Penal Code.
(5) Examine and consider disaggregated data regarding pupil
achievement and other indicators to consider whether all groups and
types of pupils make adequate progress toward short-term growth
targets and long-term performance goals. The disaggregated data to
be included and considered by the plan shall, at a minimum, provide
information regarding the achievement of English language learners,
pupils with exceptional needs, pupils who qualify for free and
reduced price meals, and pupils in numerically significant subgroups.
(6) Set short-term academic objectives pursuant to Section 52052
for a two-year period that will allow the school to make adequate
progress toward the growth targets established for each participating
school for pupil achievement as measured by all of the following to
the extent that the data is available for the school:
(A) The achievement test administered pursuant to Section 60640.
(B) Graduation rates for grades 7 to 12, inclusive.
(C) Attendance rates for pupils and school personnel for
elementary, middle, and secondary schools.
(D) Any other indicators approved by the State Board of Education.
(e) The school action plan shall focus on improving pupil academic
performance, improving the involvement of parents and guardians,
improving the effective and efficient allocation of resources and
management of the school, and identifying and developing solutions
that take into account the underlying causes for low performance by
pupils.
(f) The team, in the development of the action plan, shall consult
with the exclusive representatives of employee organizations, where
they exist.
(g) The school action plan may propose to increase the number of
instructional days offered at the schoolsite and also may propose to
increase up to a full 12 months the amount of time for which
certificated employees are contracted, if all of the following
conditions are met:
(1) Provisions of the plan proposed pursuant to this subdivision
shall not violate current applicable collective bargaining
agreements.
(2) An agreement is reached with the exclusive representative
concerning staffing specifically to accommodate the extended school
year or 12-month contract.
(h) The team, in the development of the action plan, shall consult
with the exclusive representatives of employee organizations, where
they exist.
(i) Upon its completion, the action plan shall be submitted to the
governing board of the school district for its approval at a
regularly scheduled public meeting. After the plan is approved, but
no later than May 15 of the year that follows the year the school is
selected to participate, the plan shall be submitted to the
Superintendent of Public Instruction with a request for funding in
the form prescribed by the Superintendent of Public Instruction, who
shall review the school action plan and recommend approval or
disapproval of the school's request for funding to the State Board of
Education.
(j) Not later than July 15 of the year next following the year in
which a school is selected for participation, the State Board of
Education shall review and approve or disapprove the school's request
for funding, based on the recommendation of the Superintendent of
Public Instruction. Within 30 days of the State Board of Education's
review, the Superintendent of Public Instruction shall notify the
affected school districts of the state of the board's action
regarding the request for funding. In conjunction with its approval
of a request for funding to implement a school's action plan, the
State Board of Education may, at the request of the governing board
of the school district or the county board of education for a school
under its jurisdiction, waive all or any part of any provision of
this code, or any regulation adopted by the State Board of Education,
controlling any of the programs listed in clause (i) of subparagraph
(B) of paragraph (1) of subdivision (a) of Section 54761 and Section
64000 if the waiver does not result in a decrease in the
instructional time otherwise required by law or regulation or an
increase in state costs and is determined to be consistent with
subdivision (a) of Section 46300.
SEC. 74. Section 52055.615 of the Education Code is amended to
read:
52055.615. (a) If the Superintendent of Public Instruction
invites a school to participate in the High Priority Schools Grant
Program, the governing board of the school district shall hold a
public hearing at a regularly scheduled meeting to discuss whether or
not to apply for participation in this program and how to address
the needs of the school and pupils.
(b) If a school district, on behalf of an eligible school under
its jurisdiction, decides not to accept the invitation to participate
in the High Priority Schools Grant Program, the governing board of
the school district shall hold a public hearing at a regularly
scheduled meeting to discuss the reasons and rationale for not
accepting the invitation and explain how the district intends to
address the needs of the school and pupils. This section does not
apply to school districts with jurisdiction over schools for which
the Superintendent of Public Instruction has indicated that funding
would not be available. The governing board shall not place the
discussion required pursuant to this subdivision on the consent
calendar of the hearing.
(c) The governing board shall notify, in writing, the following
persons and entities of the public hearings required pursuant to
subdivisions (a) and (b):
(1) Representative parent organizations at the schoolsite,
including the parent-teacher association, parent-teacher clubs, and
schoolsite councils. The district is encouraged also to notify
parents directly through appropriate means. Notifications to parents
shall comply with Article 4 (commencing with Section 48985) of
Chapter 6 of Part 27.
(2) All local major media outlets.
(3) The local mayor.
(4) All members of the city council.
(5) All members of the county board of supervisors.
(6) County superintendents of schools.
(7) County board of education.
SEC. 75. Section 52055.625 of the Education Code is amended to
read:
52055.625. (a) It is the intent of the Legislature that the lists
contained in paragraph (2) of subdivisions (c), (d), (e), and (f) be
considered options that may be considered by a school in the
development of its school action plan and that a school not adopt all
of the listed options as a condition of funding under the terms of
this act. Instead, this listing of options is intended to provide
the opportunity for focus and strategic planning as schools plan to
address the needs of high-priority pupils.
(b) As a condition of the receipt of funds, a school action plan
shall include each of the following essential components:
(1) Pupil literacy and achievement.
(2) Quality of staff.
(3) Parental involvement.
(4) Facilities, curriculum, instructional materials, and support
services.
(c) (1) The pupil literacy and achievement component shall contain
a strategy to focus on increasing pupil literacy and achievement,
with necessary attention to the needs of English language learners.
At a minimum, this strategy shall include a plan to achieve the
following goals:
(A) Each pupil at the school will be provided appropriate
instructional materials aligned with the academic content and
performance standards adopted by the State Board of Education as
required by law.
(B) Each significant subgroup at the school will demonstrate
increased achievement based on API results by the end of the
implementation period.
(C) English language learners at the school will demonstrate
increased performance based on the English language development test
required by Section 60810 and the achievement tests required pursuant
to Section 60640.
(2) To achieve the goals in paragraph (1), a school in its action
plan may include, among other things, any of the following options:
(A) Selective class size reduction in key curricular areas
provided this does not result in a decrease in the proportion of
experienced credentialed teachers at the schoolsite.
(B) Increased learning time in key curricular areas identified as
needing attention, including mathematics.
(C) Targeted intensive reading instruction utilizing reading
capacity-level materials that may include, but are not limited to,
the following strategies:
(i) The development of a reading competency program for pupils in
grades 5 to 8, inclusive, whose reading scores are at or below the
40th percentile or in the two lowest performance levels, as adopted
by the State Board of Education, on the reading portion of the
achievement test, authorized by Section 60640. This program may
include direct instruction in reading at grade level utilizing the
English language arts content standards adopted pursuant to Section
60605. Additionally, this program may offer specialized intervention
that utilizes state approved instructional materials adopted
pursuant to Section 60200. It is the intent of the Legislature, as a
recommendation, that this curriculum consist of at least one class
period during the regular schoolday taught by a teacher trained in
the English language arts standards pursuant to Section 60605. It is
also the intent of the Legislature, as a recommendation, that
periodic assessments throughout the year be conducted to monitor the
progress of the pupils involved.
(ii) The use of a library media teacher to work cooperatively with
every teacher and principal at the schoolsite to develop and
implement an independent and free reading program, help teachers
determine a pupil's reading level, order books that have been
determined to meet the needs of pupils, help choose books at pupils'
independent reading levels, and assure that pupils read a variety of
genres across all academic content areas. For purposes of this
article, "library media teacher" means a classroom teacher who
possesses or is in the process of obtaining a library media teacher
services credential consistent with Section 44868.
(D) Mentoring programs for pupils.
(E) Community, business, or university partnerships with the
school.
(d) (1) The quality of staff component shall contain a strategy to
attract, retain, and fairly distribute the highest quality staff at
the school, including teachers, administrators, and support staff.
At a minimum, this strategy shall include a plan to achieve the
following goals:
(A) An increase in the number of credentialed teachers working at
that schoolsite.
(B) An increase in or targeting of professional development
opportunities for teachers related to the goals of the action plan
and English language development standards adopted by the State Board
of Education aligned with the academic content and performance
standards, including, but not limited to, participation in
professional development institutes established pursuant to Article 2
(commencing with Section 92220) of Chapter 5 of Part 65.
(C) By the end of the implementation period, successful completion
by the schoolsite administrators of a program designed to maximize
leadership skills.
(2) To achieve the goals in paragraph (1), a school may include in
its action plan, among others, any of the following options:
(A) Incentives to attract credentialed teachers and quality
administrators to the schoolsite, including, but not limited to,
additional compensation strategies similar to those authorized
pursuant to Section 44735.
(B) A school district preintern or intern program within which
eligible emergency permit teachers located at the schoolsite would be
required to participate, unless those individuals are already
participating in another teacher preparation program that leads to
the attainment of a valid California teaching credential.
(C) Common planning time for teachers, administrators, and support
staff focused on improving pupil achievement.
(D) Mentoring for site administrators, peer assistance for
credentialed teachers, and support services for new teachers,
including, but not limited to, the Beginning Teacher Support and
Assessment System.
(E) Providing assistance and incentives to teachers for completion
of professional certification programs and toward attaining BCLAD or
CLAD certification.
(F) Increasing professional development in state academic content
and performance standards, including English language development
standards.
(e) (1) The parental involvement component shall contain a
strategy to change the culture of the school community to recognize
parents and guardians as partners in the education of their children
and to prepare and educate parents and guardians in the learning and
academic progress of their children. At a minimum, this strategy
shall include a commitment to develop a school-parent compact as
required by Section 51101 and a plan to achieve the goal of
maintaining or increasing the number and frequency of personal parent
and guardian contacts each year at the schoolsite and school-home
communications designed to promote parent and guardian support for
meeting state standards and core curriculum requirements.
(2) To achieve the goals in subdivision (a), a school may in its
action plan include, among others, any of the following options:
(A) Parent and guardian homework support classes.
(B) A program of regular home visits.
(C) After school and evening opportunities for parents, guardians,
and pupils to learn together.
(D) Training programs to educate parents and guardians about state
standards and testing requirements, including the high school exit
examination.
(E) Creation, maintenance, and support of parent centers located
on schoolsites to educate parents and guardians regarding pupil
expectations and provide support to parents and guardians in their
efforts to help their children learn.
(F) Programs targeted at parents and guardians of special
education pupils.
(G) Efforts to develop a culture at the schoolsite focused on
college attendance, including programs to educate parents and
guardians regarding college entrance requirements and options.
(H) Providing more bilingual personnel at the schoolsite and at
school-related functions to communicate more effectively with parents
and guardians who speak a language other than English.
(I) Providing an opportunity for parents to monitor online, if the
technology is available, and in compliance with applicable state and
federal privacy laws, the academic progress and attendance of their
children.
(f) (1) The facilities, curriculum, instructional materials, and
support services component shall contain a strategy to provide an
environment that is conducive to teaching and learning and that
includes the development of a high-quality curriculum and instruction
aligned with the academic content and performance standards adopted
pursuant to Section 60605 and the standards for English language
development adopted pursuant to Section 60811 to measure progress
made towards achieving English language proficiency. At a minimum,
this strategy shall include the goal of providing adequate logistical
support, including, but not limited to, curriculum, quality
instruction, instructional materials, support services, and supplies
for every pupil.
(2) To achieve the goal specified in paragraph (1), a school in
its action plan may include, among others, any of the following
options:
(A) State and locally developed valid and reliable assessments
based on state academic content standards.
(B) Increased learning time in key curricular areas identified as
needing attention, including mathematics.
(C) The addition of more pupil support services staff, including,
but not limited to, paraprofessionals, counselors, library media
teachers, nurses, psychologists, social workers, speech therapists,
audiologists, and speech pathologists.
(D) Pupil support centers for additional tutoring or homework
assistance.
(E) Use of most current standards-aligned textbooks adopted by the
State Board of Education, including materials for English language
learners.
(F) For secondary schools, offering advanced placement courses and
courses that meet the requirements for admission to the University
of California or the California State University.
(g) A school action plan to improve pupil performance that is
developed for participation in the program established pursuant to
this article shall meet the requirements of subdivisions (d) and (e)
of Section 52054 and this article.
SEC. 76. Section 52055.655 of the Education Code is amended to
read:
52055.655. (a) Notwithstanding subdivision (c) of Section
52055.650, a school participating in the High Priority Schools Grant
Program that meets or exceeds its API growth target shall continue to
receive funding under this program in the amount specified in
Sections 52054.5 and 52055.600 for one additional year of
implementation, less the amount received pursuant to Section 52057.
(b) From funds made available to the department pursuant to
Chapter 749 of the Statutes of 2001, the department shall conduct a
study on the issue of sustainability of funding for high-priority
schools. The issues to be addressed in this study shall include, but
are not limited to, the following:
(1) An objective rather than a comparative view of the necessity
of sustaining supplemental funding over time to address the ongoing
needs of high-priority pupils, and the impact of policies that only
provide funding over a specified period of time.
(2) A description of the ongoing needs of high-priority schools,
as identified in needs assessments submitted pursuant to paragraph
(3) of subdivision (a) of Section 52055.620 and the sources of
funding schools used to meet these needs.
(3) An analysis of the use of funds provided pursuant to this
article and the effectiveness of that use in meeting the continued or
changing needs of communities served by high-priority schools. This
analysis shall include an evaluation of the growth in academic
achievement realized by participating schools and the ability of
those schools to sustain growth in academic achievement if funding is
continued.
(4) An assessment of whether local, state, and federal resources
are likely to be sufficient to sustain all or some of the academic
improvements made in high-priority schools after this state subsidy
expires, taking into account prospects for the subsequent pupil
population's incidence of poverty and low socioeconomic status.
SEC. 77. Section 52128 of the Education Code is amended to read:
52128. The State Department of Education shall contract for an
independent evaluation of the Class Size Reduction Program to be
completed on or before March 28, 2002. The costs of the evaluation
shall be paid for from funds appropriated to the department in the
Budget Act. The evaluation shall consider the data collected by
school districts pursuant to subdivision (g) of Section 52123. The
evaluation shall determine whether this program has been effective in
improving pupil achievement and shall identify components of a
successful class size reduction program. The evaluation shall be
submitted to the chairpersons of the Joint Legislative Budget
Committee, the Assembly Committee on Budget, the Senate Committee on
Budget and Fiscal Review, the Assembly Committee on Education, and
the Senate Committee on Education, and to the Governor and the
Director of Finance no later than March 28, 2002.
SEC. 78. Section 60061.8 of the Education Code is amended to read:
60061.8. (a) Basic instructional materials, as defined by Section
60010, offered on or after January 1, 2005, shall comply with all of
the following:
(1) Print materials shall have sharp, clear, high contrast, and
highly legible fonts. Print materials designed for kindergarten
shall use fonts that are at least 20 point. Print materials designed
for grade 1 shall use fonts that are at least 18 point. Print
materials designed for grade 2 shall use fonts that are at least 16
point.
(2) Video products designed for pupils in kindergarten and grades
1 to 12, inclusive, shall be closed-captioned, as defined by the
Federal Communications Commission, except for the following:
(A) Video products or portions of video products, if any, for
which the publisher does not have the rights to close-caption.
(B) Video products or portions of video products that are
open-captioned, meaning that all viewers see the captioned
information.
(3) (A) Internet resources and digital multimedia programs
intended for use by the general population of pupils, for pupils in
kindergarten and grades 1 to 12, inclusive, shall at least meet the
standards for accessibility, as set forth in Section 508 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. Sec. 794d), and
regulations implementing that act as set forth in Part 1194 of Title
36 of the Code of Federal Regulations, unless meeting those standards
would do any of the following:
(i) Fundamentally alter the nature of the instructional activity.
(ii) Result in those resources or programs placing an undue
financial and administrative burden on the state agencies, school
districts, or schools that would likely access or utilize the
resources or programs, as determined by the affected agencies in
collaboration with the publishers.
(iii) Cause those resources or programs to fail to meet standards
otherwise required by statute or regulation.
(B) In order to facilitate access by pupils with disabilities who
are progressing in the general curriculum, to the extent
technologically feasible, a digital multimedia program shall allow
the user to control sizing of images and fonts, speed and volume of
audio, colors or contrast, or both colors and contrast, and other
inherently transformable attributes, but not for modification of
content, to match individual performance and abilities. If a
publisher is not able to create a multimedia program that satisfies
the requirements of this subparagraph, the publisher shall provide
the State Department of Education, upon request, with computer files
or other electronic versions of textual content of basic
instructional materials compatible with braille transcription,
meeting department specifications at no additional cost, and as a
condition of sale.
(b) This section does not apply to basic instructional materials
adopted, prior to January 1, 2005, by the state board pursuant to
Section 60200, to the
extent those instructional materials do not already comply with this
section. A publisher of basic instructional materials adopted before
January 1, 2005, may voluntarily modify those materials as may be
necessary to comply with this section.
SEC. 79. Section 60640 of the Education Code, as added by Section
5 of Chapter 773 of the Statutes of 2003, is amended to read:
60640. (a) There is hereby established the Standardized Testing
and Reporting Program, to be known as the STAR Program.
(b) Commencing in the 2004-05 fiscal year and each fiscal year
thereafter, and from the funds available for that purpose, each
school district, charter school, and county office of education shall
administer to each of its pupils in grades 3 and 8 the achievement
test designated by the State Board of Education pursuant to Section
60642 and shall administer to each of its pupils in grades 2 to 11,
inclusive, the standards-based achievement test provided for in
Section 60642.5. The State Board of Education shall establish a
testing period to provide that all schools administer these tests to
pupils at approximately the same time during the instructional year,
except as necessary to ensure test security and to meet the final
filing date.
(c) The publisher and the school district shall provide two makeup
days for the testing of previously absent pupils within the testing
period established by the State Board of Education in subdivision
(b).
(d) The governing board of the school district may administer
achievement tests in grades other than those required by subdivision
(b) as it deems appropriate.
(e) Pursuant to paragraph (17) of subsection (a) of Section 1412
of Title 20 of the United States Code, individuals with exceptional
needs, as defined in Section 56026, shall be included in the testing
requirement of subdivision (b) with appropriate accommodations in
administration, where necessary, and those individuals with
exceptional needs who are unable to participate in the testing, even
with accommodations, shall be given an alternate assessment.
(f) At the option of the school district, a pupil with limited
English proficiency who is enrolled in any of grades 2 to 11,
inclusive, may take a second achievement test in his or her primary
language. Primary language tests administered pursuant to this
subdivision and subdivision (g) shall be subject to the requirements
of subdivision (a) of Section 60641. These primary language tests
shall produce individual pupil scores that are valid and reliable.
Notwithstanding any other law, the State Board of Education shall
designate for use, as part of this program, a single primary language
test in each language for which a test is available for grades 2 to
11, inclusive, pursuant to the process used for designation of the
assessment chosen in the 1997-98 fiscal year, as specified in
Sections 60642 and 60643, as applicable.
(g) A pupil of limited English proficiency who is enrolled in any
of grades 2 to 11, inclusive, shall be required to take a test in his
or her primary language if a test is available, if fewer than 12
months have elapsed after his or her initial enrollment in any public
school in the state.
(h) (1) The Superintendent of Public Instruction shall apportion
funds to school districts to enable school districts to meet the
requirements of subdivisions (b), (f), and (g).
(2) The State Board of Education shall annually establish the
amount of funding to be apportioned to school districts for each test
administered and shall annually establish the amount that each
publisher shall be paid for each test administered under the
agreements required pursuant to Section 60643. The amounts to be paid
to the publishers shall be determined by considering the cost
estimates submitted by each publisher each September and the amount
included in the annual Budget Act, and by making allowance for the
estimated costs to school districts for compliance with the
requirements of subdivisions (b), (f), and (g).
(3) An adjustment to the amount of funding to be apportioned per
test may not be valid without the approval of the Director of
Finance. A request for approval of an adjustment to the amount of
funding to be apportioned per test shall be submitted in writing to
the Director of Finance and the chairpersons of the fiscal committees
of both houses of the Legislature with accompanying material
justifying the proposed adjustment. The Director of Finance is
authorized to approve only those adjustments related to activities
required by statute. The Director of Finance shall approve or
disapprove the amount within 30 days of receipt of the request and
shall notify the chairpersons of the fiscal committees of both houses
of the Legislature of the decision.
(i) For the purposes of making the computations required by
Section 8 of Article XVI of the California Constitution, the
appropriation for the apportionments made pursuant to paragraph (1)
of subdivision (h), and the payments made to the publishers under the
contracts required pursuant to Section 60643 or subparagraph (C) of
paragraph (1) of subdivision (a) of Section 60605 between the
department and the contractor, are "General Fund revenues
appropriated for school districts," as defined in subdivision (c) of
Section 41202, for the applicable fiscal year, and included within
the "total allocations to school districts and community college
districts from General Fund proceeds of taxes appropriated pursuant
to Article XIII B," as defined in subdivision (e) of Section 41202,
for that fiscal year.
(j) As a condition to receiving an apportionment pursuant to
subdivision (h), a school district shall report to the superintendent
all of the following:
(1) The number of pupils enrolled in the school district in grades
2 to 11, inclusive.
(2) The number of pupils to whom an achievement test was
administered in grades 2 to 11, inclusive, in the school district.
(3) The number of pupils in paragraph (1) who were exempted from
the test at the request of their parents or guardians.
(k) This section shall become operative July 1, 2004.
SEC. 80. Section 64201 of the Education Code is amended to read:
64201. (a) The California Quality Education Commission is hereby
established, to become operative on July 1, 2003, for the purpose of
developing, evaluating, validating, and refining a Quality Education
Model for prekindergarten through grade 12, inclusive, to provide
state policymakers with adequate tools to enable them to establish
the reasonable costs of schools and the best direct available
resources so that the vast majority of pupils may meet academic
performance standards established by the state. The work of the
commission shall serve to implement the principles and direction
described in the final report of the Joint Committee to Develop a
Master Plan for Education, and shall identify the educational
components, educational resources, and corresponding costs necessary
to provide the opportunity for a quality education to every pupil.
(b) (1) The commission shall be composed of 13 members, who shall
be representative of the diversity of the state population, and shall
include:
(A) Leaders from business and education.
(B) Representatives of elementary schools, middle schools, and
high schools.
(C) Representatives of urban districts, suburban districts, and
rural districts.
(D) Representatives of the research community with experience in
educational policy and best practices.
(2) Except for the first appointments to the California Quality
Education Commission, a member shall serve a four-year term. A
person may not be appointed to serve more than two consecutive terms.
The first terms of the members first appointed to the California
Quality Education Commission shall be as follows:
(A) Three shall serve a term expiring August 1, 2005.
(B) Five shall serve a term expiring August 1, 2006.
(C) Five shall serve a term expiring August 1, 2007.
(3) The commission members shall be appointed as follows:
(A) Seven members shall be appointed by the Governor and approved
by the Senate. Of the seven members appointed by the Governor and
approved by the Senate, one shall be a currently employed public
school teacher, one shall be a currently employed public school
administrator, and one shall be a current public school board member.
The terms of these members first appointed shall be staggered so
that the terms of two members shall expire on August 1, 2005, the
terms of two members shall expire on August 1, 2006, and the terms of
three members shall expire on August 1, 2007.
(B) Two members shall be appointed by the Senate Committee on
Rules. The terms of these members first appointed shall be staggered
so that the term of one member shall expire on August 1, 2006, and
the term of the other shall expire on August 1, 2007.
(C) Two members shall be appointed by the Speaker of the Assembly.
The terms of these members first appointed shall be staggered so
that the term of one member shall expire on August 1, 2006, and the
term of the other shall expire on August 1, 2007.
(D) Two members shall be appointed by the Superintendent of Public
Instruction. The terms of these members first appointed shall be
staggered so that the term of one member shall expire on August 1,
2005, and the term of the other shall expire on August 1, 2006.
(4) (A) The commission, by majority vote of all its sitting
members, shall elect its own chairperson from among its sitting
members.
(B) The commission shall appoint an executive director, who shall
be exempt from the State Civil Service Act (Part 2 (commencing with
Section 18500) of Division 3 of Title 2 of the Government Code), and
may in its discretion remove him or her by a majority vote of all its
members. The executive director shall be the secretary to the
commission and the commission's chief executive officer. The
executive director shall receive the salary that the commission
determines, and, subject to appropriations, other prerequisites that
the commission determines.
(C) Pursuant to subdivision (a) of Section 11126 of the Government
Code, the commission may hold closed sessions when considering
matters relating to the recruitment, appointment, employment, or
removal of the executive director. Decisions made during a closed
session of the commission related to the recruitment, appointment,
employment, or removal of the executive director shall be made known
at the next public meeting of the commission.
(5) (A) A vacancy on the commission shall be filled within 30 days
by the appointing power that appointed the prior holder of the
position. An appointment to fill a vacancy shall be for the
remaining portion of the term of the member whom the appointee
succeeds. A vacancy may not impair the right of the remaining
sitting members to exercise all of the powers of the commission.
(B) A majority of the sitting members of the commission
constitutes a quorum for the transaction of business.
(C) "Sitting member" means an individual who has been appointed
and is currently serving on the California Quality Education
Commission.
(c) The commission shall do all of the following:
(1) Identify key issues to address in developing, evaluating,
validating, and refining the Quality Education Model. The commission
shall develop complete descriptions of prototype schools, at least
one for each of the three levels of elementary and secondary
education, to form models that fairly capture the diversity of public
schools in California.
(2) Determine an adequate base funding amount for each of the
three prototype schools.
(3) Recommend funding adjustments to allow schools that meet
certain criteria to receive additional funding beyond the base
funding amount. The funding adjustments shall be limited to both of
the following:
(A) A district characteristic adjustment that focuses on the
extraordinary needs of certain schools due to their geographic
locations, including transportation needs and weather challenges.
(B) A pupil characteristic adjustment that is limited to the
following three areas:
(i) Special education programs.
(ii) Services for English language learners who have been enrolled
in California public schools for less than five years.
(iii) Programs for low-income pupils.
(4) Establish a category of grants to be known as initiatives that
shall be limited in duration and serve either of the following
purposes:
(A) To pilot and evaluate a proposed new program at one or two
schools prior to implementing the program statewide.
(B) To meet a school's immediate but temporary needs for
additional funding to mitigate the effects of an unforeseen
short-term problem faced by the school.
(5) Focus on practical alternatives that are achievable within the
minimum funding requirements for school districts and community
college districts imposed by Section 8 of Article XVI of the
California Constitution.
(6) Solicit comments, criticisms, and suggestions from
professional educators, education administrators, and education
policy experts relative to the elements of the Quality Education
Model. The commission shall consult expert panels for advice
relating to research-based, best practices most associated with high
pupil achievement.
(7) Solicit public comments, criticisms, and suggestions relative
to the elements of the Quality Education Model. The commission shall
provide the public with information sufficient to enable interested
members of the public to understand the process being used to
evaluate, validate, and refine the Quality Education Model, and the
reasonable choices or options under consideration. The commission
shall provide the public with information explaining the criteria and
models chosen and the basis for those choices.
(8) Rely upon the most accurate available cost data, cost
estimation methods, and reasonable and expert assumptions in those
instances in which data are lacking. The commission shall identify
data gaps, modeling assumptions, and recommendations for near-term
and long-term improvement of the model.
(9) Deliver a report, comprised of the prototype models and the
commission's findings and recommendations, to the Governor and
Legislature no later than 12 months after the commission first
convenes. The report shall include recommendations for any statutory
changes to conform the existing school finance structure to the
Quality Education Model proposed in the report.
(d) The commission shall, upon delivery of the report, continue as
a standing commission, its members serving staggered terms, with the
following responsibilities:
(1) To test the Quality Education Model's reliability, by
evaluating the accuracy of the cost elements and assessing whether
moneys are actually used to desired effects.
(2) To refine the means with which to account for missing
elements, including intangible factors or quality indicators that
affect pupil achievement and for which data are not readily
available.
(3) To identify the Quality Education Model's assumptions, assess
the validity of those assumptions, and improve their accuracy,
especially by finding those resources and methods that successful
schools embody.
(4) To develop the capacity to estimate and forecast factors,
including the cost of the Quality Education Model's implementation
given model refinement, the growth of applicable revenues, the pace
of implementation, and the effects of the model on pupil performance.
(5) To make recommendations for improvements in the state's
data-gathering systems.
SEC. 81. Section 66271.8 of the Education Code is amended to read:
66271.8. (a) The Legislature finds and declares that female
students should be accorded opportunities for participation in public
postsecondary educational institution athletic programs equivalent
to those accorded male students.
(b) In apportioning public funds, public postsecondary educational
institutions shall apportion amounts available for athletics to
ensure that equitable amounts will be allocated for all students,
except that allowances may be made for differences in the costs of
various athletic programs. Notwithstanding any other provision of
law, no public funds shall be used in connection with any athletic
program conducted under the auspices of a public postsecondary
educational institution, or any student organization within the
postsecondary educational institution, that does not provide
equivalent opportunity to both sexes for participation and use of
facilities. The factors considered when determining whether an
educational institution has provided equivalent opportunity include,
but are not limited to, all of the following:
(1) Whether the selection of sports and levels of competition
offered effectively accommodate the athletic interests and abilities
of members of both sexes.
(2) The provision of equipment and supplies.
(3) Scheduling of games and practice times.
(4) Selection of the season for a sport.
(5) Location of the games and practices.
(6) Compensation for coaches.
(7) Travel arrangements.
(8) Per diem.
(9) Locker rooms.
(10) Practice and competitive facilities.
(11) Medical services.
(12) Housing facilities.
(13) Dining facilities.
(14) Scholarships.
(15) Publicity.
(c) Whether a postsecondary educational institution has
effectively accommodated the athletic interests and abilities of
members of both sexes shall be assessed in any one of the following
ways:
(1) Whether intercollegiate level participation opportunities for
male and female students are provided in numbers substantially
proportionate to their respective enrollments.
(2) Where the members of one sex have been and are
underrepresented among intercollegiate athletes, whether the
institution can show a history and continuing practice of program
expansion that is demonstrably responsive to the developing interest
and abilities of the members of that sex.
(3) Where the members of one sex are underrepresented among
intercollegiate athletes, and the institution cannot show a history
and continuing practice of program expansion as required in paragraph
(2), whether the institution can demonstrate that the interests and
abilities of the members of that sex have been fully and effectively
accommodated by the present program.
(d) Nothing in this section shall be construed to invalidate any
existing consent decree or any other settlement agreement entered
into by an educational institution to address gender equity in
athletic programs.
(e) Nothing in this section shall be construed to require a public
postsecondary educational institution to require competition between
male and female students in school-sponsored athletic programs.
(f) If an educational institution must cut its athletic budget,
the educational institution shall do so consistently with its legal
obligation to comply with both state and federal gender equity laws.
(g) It is the intent of the Legislature that the three-part test
articulated in subdivision (c) be interpreted as it has been in the
policies and regulations of the Office of Civil Rights in effect on
January 1, 2003.
SEC. 82. Section 67359.13 of the Education Code is amended to
read:
67359.13. (a) Notwithstanding any other provision of law, the
University of California, the California State University, and
community college districts may participate in this act, if the
Regents of the University of California, the Trustees of the
California State University, or the governing board of each community
college district, respectively, adopt a resolution approving that
participation. A participating institution of higher education shall
pledge a portion of the lottery revenues allocated annually from the
California State Lottery Education Fund to the University of
California, the California State University, and community college
districts as a dedicated revenue source to repay bonds issued by the
authority under the act.
(b) The University of California, the California State University,
and community college districts may each pledge an amount up to the
equivalent of 25 percent, but not more than 25 percent, of the
allocation to the University of California, the California State
University, and community college districts, respectively, in the
1996-97 fiscal year from the California State Lottery Education Fund.
(c) To the extent that the University of California, the
California State University, and community college districts
participate in the act, the Regents of the University of California,
the Trustees of the California State University, and the governing
board of each community college district, respectively, shall
guarantee the repayment of bonds issued under this chapter by
providing instructions to the Controller as follows:
(1) Informs the Controller of its election to participate in this
act.
(2) Authorizes the Controller to pay the portion of the entity's
annual allocation of funds from the California State Lottery
Education Fund to the bond trustee identified by the entity for the
repayment of the entity's share of the bonds issued under this
chapter.
(3) Contains a transfer schedule that sets forth the amounts of
funds, which shall be equal to the amount of funds pledged pursuant
to subdivisions (a) and (b) of this section, to be transferred by the
Controller to the trustee from the funds to be allocated to the
University of California, the California State University, or the
community college district from the California State Lottery
Education Fund.
SEC. 83. Section 88033 of the Education Code is amended to read:
88033. (a) Notwithstanding any other provisions of law, no
minimum or maximum age limits shall be established for the employment
or continuance in employment of persons as part of the classified
service.
(b) Any person possessing all of the minimum qualifications for
any employment shall be eligible for appointment to that employment,
and no rule or policy, either written or unwritten, heretofore or
hereafter adopted, shall prohibit the employment or continued
employment, solely because of the age of any such person in any
community college employment who is otherwise qualified therefor.
(c) No person shall be employed in community college employment
while he or she is receiving a retirement allowance under any
retirement system by reason of prior school or community college
employment, except as provided in Article 5 (commencing with Section
21150) of Chapter 8 of Part 3 of Division 5 of Title 2 of the
Government Code.
(d) Subdivision (c) shall be inapplicable to persons who were
employed in the classified service of any community college district
as of September 18, 1959, and who are still employed by the same
district on September 15, 1961, and the rights of those persons shall
be fixed and determined as of September 18, 1959, and none of these
persons shall be deprived of any right to any retirement allowance or
eligibility for any such allowance to which he or she would have
been entitled as of that date. Any such person who, by reason of any
provision of law to the contrary, has been deprived of any right to
retirement allowance or eligibility for such an allowance, shall,
upon the filing of application therefor, be reinstated to those
rights as he or she would have had, had this subdivision been in
effect on September 18, 1959.
(e) This section shall apply to districts that have adopted the
merit system in the same manner and effect as if it were a part of
Article 3 (commencing with Section 88060).
SEC. 84. Section 89539.2 of the Education Code is amended to read:
89539.2. (a) Any party claiming that his or her request for
discovery pursuant to Section 89539.1 has not been complied with may
serve and file a petition to compel discovery with the Hearing Office
of the State Personnel Board, naming as the respondent the party
refusing or failing to comply with Section 89539.1. The petition
shall state facts showing that the respondent failed or refused to
comply with Section 89539.1, a description of the matters sought to
be discovered, the reason or reasons why the matter is discoverable
under Section 89539.1, and the ground or grounds of the respondent's
refusal so far as known to the petitioner.
(b) (1) The petition shall be served upon the respondent, and
filed within 14 days after the respondent first evidenced his or her
failure or refusal to comply with Section 89539.1, or within 30 days
after the request was made and the party has failed to reply to the
request, whichever period is longer. However, no petition may be
filed within 15 days of the date set for commencement of the
administrative hearing, except upon a petition and a determination by
the administrative law judge of good cause. In determining good
cause, the administrative law judge shall consider the necessity and
reasons for the discovery, the diligence or lack of diligence of the
moving party, whether the granting of the petition will delay the
commencement of the administrative hearing on the date set, and the
possible prejudice of the action to any party.
(2) The respondent shall have a right to file a written answer to
the petition. Any answer shall be filed with the Hearing Office of
the State Personnel Board and the petitioner within 15 days of
service of the petition.
(3) Unless otherwise stipulated by the parties and as provided by
this section, the administrative law judge shall review the petition
and any response filed by the respondent, and issue a decision
granting or denying the petition within 20 days after the filing of
the petition. Nothing in this section shall preclude the
administrative law judge from determining that an evidentiary hearing
shall be conducted prior to the issuance of a decision on the
petition. In the event that a hearing is ordered, the decision of
the administrative law judge shall be issued within 20 days of the
closing of the hearing.
(4) A party aggrieved by the decision of the administrative law
judge may, within 30 days of service of the decision, file a petition
to compel discovery in the superior court for the county in which
the administrative hearing will be held or in the county in which the
headquarters of the trustees is located. The petition shall be
served on the respondent.
(c) If, from a reading of the petition, the court is satisfied
that the petition sets forth good cause for relief, the court shall
issue an order to show cause directed to the respondent; otherwise
the court shall enter an
order denying the petition. The order to show cause shall be served
upon the respondent and his or her attorney of record in the
administrative proceeding by personal delivery or certified mail, and
shall be returnable no earlier than 10 days from its issuance nor
later than 30 days after the filing of the petition. The respondent
shall have the right to serve and file a written answer or other
response to the petition and order to show cause.
(d) The court may, in its discretion, order the administrative
proceeding stayed during the pendency of the proceeding, and, if
necessary, for a reasonable time thereafter to afford the parties
time to comply with the court order.
(e) If the matter sought to be discovered is under the custody or
control of the respondent and the respondent asserts that the matter
is not a discoverable matter under Section 89539.1, or is privileged
against disclosure under Section 89539.1, the court may order lodged
with it matters that are provided in subdivision (b) of Section 915
of the Evidence Code, and shall examine the matters in accordance
with the provisions thereof.
(f) The court shall decide the case on the matters examined by the
court in camera, the papers filed by the parties, and any oral
argument and additional evidence as the court may allow.
(g) Unless otherwise stipulated by the parties, the court shall,
no later than 45 days after the filing of the petition, file its
order denying or granting the petition. However, the court may, on
its own motion, for good cause, extend the time an additional 45
days. The order of the court shall be in writing, setting forth the
matters or parts the petitioner is entitled to discover under Section
89539.1. A copy of the order shall forthwith be served by mail by
the clerk upon the parties. If the order grants the petition in
whole or in part, the order shall not become effective until 10 days
after the date the order is served by the clerk. If the order denies
relief to the petitioning party, the order shall be effective on the
date it is served by the clerk.
(h) (1) The order of the superior court shall be final and, except
for this subdivision, shall not be subject to review by appeal. A
party aggrieved by the order, or any part thereof, may within 30 days
after the service of the superior court's order serve and file in
the district court of appeal for the district in which the superior
court is located, a petition for a writ of mandamus to compel the
superior court to set aside, or otherwise modify, its order.
(2) If a review is sought from an order granting discovery, the
order of the trial court and the administrative proceeding shall be
stayed upon the filing of the petition for writ of mandamus.
However, the court of appeal may dissolve or modify the stay
thereafter, if it is in the public interest to do so. If the review
is sought from a denial of discovery, neither the trial court's order
nor the administrative proceeding shall be stayed by the court of
appeal except upon a clear showing of probable error.
(i) If the superior court finds that a party or his or her
attorney, without substantial justification, failed or refused to
comply with Section 89539.1, or, without substantial justification,
filed a petition to compel discovery pursuant to this section, or,
without substantial justification, failed to comply with any order of
court made pursuant to this section, the court may award court costs
and reasonable attorney's fees to the opposing party. Nothing in
this subdivision shall limit the power of the superior court to
compel obedience to its orders by contempt proceedings.
SEC. 85. Section 94779 of the Education Code is amended to read:
94779. The bureau shall make available to members of the public,
upon request, the nature and disposition of all complaints on file
with the bureau against an institution.
SEC. 86. Section 94901 of the Education Code is amended to read:
94901. (a) (1) Except as provided in Section 94905, the bureau
shall conduct a qualitative review and assessment of the institution.
It also shall conduct a qualitative review and assessment of all
programs offered except continuing education programs and programs
that are exclusively avocational or recreational in nature. The
review shall include the items listed in subdivision (b) of Section
94900, through a comprehensive onsite review process, performed by a
qualified visiting committee impaneled by the bureau for that
purpose.
(2) An institution may include some or all of its separate
operating sites under one application. Alternately, it may submit
separate applications for any one site or combination of sites. The
satellites or branches included in either an initial or renewal
application shall be considered by the bureau to comprise a separate,
single institution for purposes of regulation, approval, and
compliance under this chapter.
(3) The application shall include a single fee based on the number
of branches, satellites, and programs included within a single
application in order to cover the costs involved for those multisite
and multiprogram reviews. If the application is for renewal of an
existing approval, the institution need only submit information
necessary to document any changes made since the time its previous
application was filed with the bureau. Fees for renewal applications
will be based on the actual costs involved in the administrative
review process.
(b) The number of sites inspected by the bureau as part of its
review process shall be subject to the following considerations:
(1) If the application for approval includes branches and
satellites, the bureau shall inspect each branch and may inspect any
satellite campus.
(2) If the application is for approval to operate a branch or a
satellite, the bureau, in addition to inspecting the branch or
satellite, also may inspect the institution operating the branch or
satellite campus.
(c) The bureau may waive or modify the onsite inspection for
institutions offering home study or correspondence courses. The
visiting committee shall be impaneled by the bureau within 90 days of
the date of the receipt of a completed application, and shall be
composed of educators, and other individuals with expertise in the
areas listed in subdivision (b) of Section 94900, from
degree-granting institutions legally operating within the state.
Within 90 days of the receipt of the visiting committee's evaluation
report and recommendations, or any reasonable extension of time not
to exceed 90 days, the bureau shall take one of the following
actions:
(1) If the institution is in compliance with this chapter, and has
not operated within three years before the filing of the application
in violation of this chapter then in effect, the bureau may grant an
approval to operate not to exceed five years.
(2) If the institution is in compliance with this chapter, but has
operated within three years before the filing of the application in
violation of this chapter then in effect, or if the bureau determines
that an unconditional grant of approval to operate is not in the
public interest, the bureau may grant a conditional approval to
operate subject to whatever restrictions the bureau deems
appropriate. The bureau shall notify the institution of the
restrictions or conditions, the basis for the restrictions or
conditions, and the right to request a hearing to contest them.
Conditional approval shall not exceed two years.
(3) The bureau may deny the application. If the application is
denied, the bureau may permit the institution to continue offering
the program of instruction to students already enrolled or may order
the institution to cease instruction and provide a refund of tuition
and all other charges to students.
(d) When evaluating an institution whose purpose is to advance
postsecondary education through innovative methods, the visiting
committee shall comprise educators who are familiar with, and
receptive to, evidence bearing on the educational quality and
accomplishments of those methods.
(e) The standards and procedures utilized by the bureau shall not
unreasonably hinder educational innovation and competition.
(f) Each institution or instructional program offering education
for entry into a health care profession in which the provider has
primary care responsibilities shall offer that education within a
professional degree program that shall be subject to approval by the
bureau pursuant to this section.
(g) (1) If an institution is not operating in California when it
applies for approval to operate for itself or a branch or satellite
campus, the institution shall file with its application an
operational plan establishing that the institution will satisfy the
minimum standards set forth in subdivision (a) of Section 94900. The
operational plan also shall include a detailed description of the
institution's program for implementing the operational plan,
including proposed procedures, financial resources, and the
qualifications of owners, directors, officers, and administrators
employed at the time of the filing of the application. The bureau
may request additional information to enable the bureau to determine
whether the operational plan and its proposed implementation will
satisfy these minimum standards.
(2) If the bureau determines that the operational plan satisfies
the minimum standards described in subdivision (a) of Section 94900,
that the institution demonstrates that it will implement the plan,
and that no ground for denial of the application exists, the bureau
shall grant a temporary approval to operate, subject to any
restrictions the bureau reasonably deems necessary to ensure
compliance with this chapter, pending a qualitative review and
assessment as provided in subdivisions (a) and (b) of Section 94900.
The bureau shall inspect, pursuant to subdivision (a) of this
section, the institution, or branch or satellite campus if approval
is sought for that campus between 90 days and 180 days after
operation has begun under the temporary approval to operate.
Following receipt of the visiting committee's or the bureau staff's
report, the bureau shall act as provided in paragraph (1), (2), or
(3) of subdivision (c).
(h) If at any time the bureau determines that an institution has
deviated from the standards for approval, the bureau, after
identifying for the institution the areas in which it has deviated
from the standards, and after giving the institution due notice and
an opportunity to be heard, may place the institution on probation
for a prescribed period of time, not to exceed 24 calendar months.
During the period of probation, the institution shall be subject to
special monitoring. The conditions for probation may include the
required submission of periodic reports, as prescribed by the bureau,
and special visits by authorized representatives of the bureau to
determine progress toward total compliance. If, at the end of the
probationary period, the institution has not taken steps to eliminate
the cause or causes for its probation to the satisfaction of the
bureau, the bureau may revoke the institution's approval to award
degrees and provide notice to the institution to cease its
operations.
(i) An institution may not advertise itself as an approved
institution unless each degree program offered by the institution has
been approved in accordance with the requirements of this section.
The bureau shall review all operations of the institution pertaining
to California degrees, both within and outside of California. The
bureau may conduct site visits outside of California, including the
institution's foreign operations, when the bureau deems these visits
to be necessary. The institution shall be responsible for the
expenses of the visiting team members including the bureau's staff
liaison. The bureau may authorize any institution approved to issue
degrees under this section to issue certificates for the completion
of courses of study that are within the institution's approved
degree-granting programs.
(j) An institution shall not offer any educational program or
degree title that was not offered by the institution at the time the
institution applied for approval to operate, and shall not offer any
educational program or degree title at a campus that had not offered
the program or degree title at the time the institution applied for
approval to operate that campus, unless the bureau first approves the
offering of the program or degree title after determining that it
satisfies the minimum standards established by this section.
SEC. 87. Section 94944 of the Education Code is amended to read:
94944. (a) The Student Tuition Recovery Fund is continued in
existence. All assessments collected pursuant to Section 94945 shall
be credited to this fund, along with any interest on the moneys, for
the administration of this article. Notwithstanding Section 13340
of the Government Code, the moneys in the fund are continuously
appropriated to the bureau without regard to fiscal years for the
purposes of this chapter. The fund shall consist of a
degree-granting postsecondary educational institution account, a
vocational educational institution account, and an account for
institutions approved under any provision of this chapter that charge
each enrolled student a total charge, as defined in subdivision (k)
of Section 94852, of less than one thousand dollars ($1,000), for the
purpose of relieving or mitigating pecuniary losses suffered by any
California resident who is a student of an approved institution and
who meets either of the following conditions:
(1) (A) The student was enrolled in an institution, prepaid
tuition, and suffered loss as a result of any of the following:
(i) The closure of the institution.
(ii) The institution's failure to pay refunds or charges on behalf
of a student to a third party for license fees or any other
purposes, or to provide equipment or materials for which a charge was
collected within 180 days before the closure of the institution.
(iii) The institution's failure to pay or reimburse loan proceeds
under a federally guaranteed student loan program as required by law
or to pay or reimburse proceeds received by the institution prior to
closure in excess of tuition and other costs.
(iv) The institution's breach or anticipatory breach of the
agreement for the course of instruction.
(v) A decline in the quality or value of the course of instruction
within the 30-day period before the closure of the institution or,
if the decline began before that period, the period of decline
determined by the bureau.
(vi) The commission of a fraud by the institution during the
solicitation or enrollment of, or during the program participation
of, the student.
(B) For the purposes of this section, "closure" includes closure
of a branch or satellite campus, the termination of either the
correspondence or residence portion of a home study or correspondence
course, and the termination of a course of instruction for some or
all of the students enrolled in the course before the time these
students were originally scheduled to complete it, or before a
student who has been continuously enrolled in a course of instruction
has been permitted to complete all the educational services and
classes that comprise the course.
(2) The student obtained a judgment against the institution for
any violation of this chapter, and the student certifies that the
judgment cannot be collected after diligent collection efforts. A
court judgment obtained under this paragraph shall be paid in
accordance with paragraph (1) of subdivision (f), unless the judgment
indicates that a lesser amount is due.
(b) Payments from the fund to any student shall be made from the
appropriate account within the fund, as determined by the type of
institution into which the student has paid his or her fees, and
shall be subject to any regulations and conditions prescribed by the
bureau.
(c) (1) (A) The institution shall provide to the bureau, at the
time of the institution's closure, the names and addresses of persons
who were students of an institution within 60 days prior to its
closure, and shall notify these students, within 30 days of the
institution's closure, of their rights under the fund and how to
apply for payment. If the institution fails to comply with this
subdivision, the bureau shall attempt to obtain the names and
addresses of these students and shall notify them, within 90 days of
the institution's closure, of their rights under the fund and how to
apply for payment. This notice shall include the explanation and the
claim form described in subparagraph (B).
(B) The bureau shall develop a form in English and Spanish fully
explaining a student's rights, which shall be used by the institution
or the bureau to comply with the requirements of subparagraph (A).
The form shall include, or be accompanied by, a claim application and
an explanation of how to complete the application.
(2) (A) If an institution fails to comply with paragraph (1), the
bureau shall order the institution, or any person responsible for the
failure to provide notice as required by paragraph (1), to reimburse
the bureau for all reasonable costs and expenses incurred in
notifying students as required in paragraph (1). In addition, the
bureau may impose a penalty of up to five thousand dollars ($5,000)
against the institution and any person found responsible for the
failure to provide notice. The amount of the penalty shall be based
on the degree of culpability and the ability to pay. Any order may
impose joint and several liability. Before any order is made
pursuant to this paragraph, the bureau shall provide written notice
to the institution and any person from whom the bureau seeks recovery
of the bureau's claim and of the right to request a hearing within
30 days of the service of the notice.
(B) If a hearing is not requested within 30 days of service of the
notice, the bureau may order payment in the amount of the claim. 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 of the powers therein prescribed.
Within 30 days after the effective date of the issuance of an 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. All penalties and
reimbursements paid pursuant to this section shall be deposited in
the Private Postsecondary and Vocational Education Administration
Fund established pursuant to Section 94932 or any successor fund.
(d) (1) Students entitled to payment as provided in paragraph (1)
of subdivision (a) shall file with the bureau a verified application
indicating each of the following:
(A) The student's name, address, telephone number, and social
security number.
(B) If any portion of the tuition was paid from the proceeds of a
loan, the name of the lender, and any state or federal agency that
guaranteed or reinsured the loan.
(C) The amount of the paid tuition, the amount and description of
the student's loss, and the amount of the student's claim.
(D) The date the student started and ceased attending the
institution.
(E) A description of the reasons the student ceased attending the
institution.
(F) If the student ceased attending because of a breach or
anticipatory breach or because of the decline in the quality or value
of the course of instruction as described in clause (v) of
subparagraph (A) of paragraph (1) of subdivision (a), a statement
describing in detail the nature of the loss incurred. The
application shall be filed within one year from the date of the
notice, as described in paragraph (1) of subdivision (c). If no
notice is received by the student from the bureau soon after the
school closes, the application shall be filed within four years of
the institution's closure, or within two years of the student's or
former student's receipt of an explanation of his or her rights and a
claim form, whichever of those claim periods expires later. The
two-year claim period shall begin on the day the student or former
student receives from the bureau both an explanation regarding how to
file a claim and a claim application, as provided in subparagraph
(B) of paragraph (1) of subdivision (c), or on the day the second of
the two documents is received, if they are received on different
dates. If the claimant's primary language is Spanish, the notice and
explanation shall be sent in Spanish.
(G) Nothing in this subdivision shall preclude the filing of a
single, unified application that aggregates the claims of similarly
situated students.
(2) (A) Students entitled to payment as provided in paragraph (2)
of subdivision (a) shall file with the bureau a verified application
indicating the student's name, address, telephone number, and social
security number, the amount of the judgment obtained against the
institution, a statement that the judgment cannot be collected, and a
description of the efforts attempted to enforce the judgment. The
application shall be accompanied by a copy of the judgment and any
other documents indicating the student's efforts made to enforce the
judgment.
(B) The application shall be filed within two years after the date
upon which the judgment became final.
(3) The bureau may require additional information designed to
facilitate payment to entitled students. The bureau shall waive the
requirement that a student provide all of the information required by
this subdivision if the bureau has the information or the
information is not reasonably necessary for the resolution of a
student's claim.
(4) Nothing in this subdivision shall be construed to preclude the
filing of a single, unified application that aggregates the claims
of similarly situated students.
(e) Within 60 days of the bureau's receipt of a completed
application for payment, the bureau shall pay the claim from the
Student Tuition Recovery Fund or deny the claim. The bureau, for
good cause, may extend the time period for up to an additional 90
days to investigate the accuracy of the claim.
(f) (1) If the bureau pays the claim, the amount of the payment
shall be (A) the greater of either (i) the total guaranteed student
loan debt incurred by the student in connection with attending the
institution, or (ii) the total of the student's tuition and the cost
of equipment and materials related to the course of instruction, less
(B) the amount of any refund, reimbursement, indemnification,
restitution, compensatory damages, settlement, debt forgiveness,
discharge, cancellation, or compromise, or any other benefit received
by, or on behalf of, the student before the bureau's payment of the
claim in connection with the student loan debt or cost of tuition,
equipment, and materials. The payment also shall include the amount
the institution collected and failed to pay to third parties on
behalf of the student for license fees or any other purpose.
However, if the claim is based solely on the circumstances described
in subparagraph (B) or (C) of paragraph (1) of subdivision (a), the
amount of the payment shall be the amount of the loss suffered by the
student. In addition to the amount determined under this paragraph,
the amount of the payment shall include all interest and collection
costs on all student loan debt incurred by the student in connection
with attending the institution.
(2) The bureau may reduce the total amount specified in paragraph
(1) by the value of the benefit, if any, of the education obtained by
the student before the closure of the institution. If the bureau
makes any reduction pursuant to this paragraph, the bureau shall
notify the claimant in writing, at the time the claim is paid, of the
basis of its decision and provide a brief explanation of the reasons
upon which the bureau relied in computing the amount of the
reduction.
(3) No reduction shall be made to the amount specified in
paragraph (1) if (A) the student did not receive adequate instruction
to obtain the training, skills, or experience, or employment to
which the instruction was represented to lead, (B) credit for the
instruction obtained by the student is not generally transferable to
other institutions approved by the bureau, or (C) the institution or
one of its representatives fraudulently misrepresented to students
the likely starting salary or job availability, or both, after
training.
(4) The amount of the payment determined under this subdivision is
not dependent on the amount of the refund to which the student would
have been entitled after a voluntary withdrawal.
(5) Upon payment of the claim, all of the student's rights against
the institution shall be deemed assigned to the bureau to the extent
of the amount of the payment.
(g) (1) The bureau shall negotiate with a lender, holder,
guarantee agency, or the United States Department of Education for
the full compromise or writeoff of student loan obligations to
relieve students of loss and thereby reduce the amount of student
claims.
(2) The bureau, with the student's permission, may pay a student's
claim directly to the lender, holder, guarantee agency, or the
United States Department of Education under a federally guaranteed
student loan program only if the payment of the claim fully satisfies
all of the student's loan obligations related to attendance at the
institution for which the claim was filed.
(3) Notwithstanding subdivision (e), the bureau may delay the
payment of a claim pending the resolution of the bureau's attempt to
obtain a compromise or writeoff of the claimant's student loan
obligation. However, the bureau shall immediately pay the claim if
any adverse action that is not stayed is taken against the claimant,
including the commencement of a civil or administrative action, tax
offset, the enforcement of a judgment, or the denial of any
government benefit.
(4) The bureau shall make every reasonable effort to obtain a loan
discharge for an eligible student in lieu of reimbursing that
student in whole or in part from the fund pursuant to federal student
loan laws and regulations.
(5) Whenever the bureau receives from a student a completed
application for payment from the Student Tuition Recovery Fund, the
bureau shall, as soon as is practicable, cause to be delivered to
that student a written notice specifying, in plain English, the
rights of a student under this section.
(h) (1) If the bureau denies the claim, or
reduces the amount of the claim pursuant to paragraph (2) of
subdivision (f), the bureau shall notify the student of the denial or
reduction and of the student's right to request a hearing within 60
days or any longer period permitted by the bureau. If a hearing is
not requested within 60 days or any additional period reasonably
requested by the student, the bureau's decision shall be final. 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.
(2) It is the intent of the Legislature that, when a student is
enrolled in an institution that closes prior to the completion of the
student's program, the student shall have the option for a teach-out
at another institution approved by the bureau. The bureau shall
seek to promote teach-out opportunities wherever possible and shall
inform the student of his or her rights, including payment from the
fund, transfer opportunities, and available teach-out opportunities,
if any.
(i) This section applies to all claims filed or pending under
former Chapter 7 (commencing with Section 94700) after January 1,
1990.
(j) Once the bureau has determined that a student claim is
eligible for payment under this section and intends to use the
Student Tuition Recovery Fund, in whole or in part, to satisfy the
eligible claim, the bureau shall document its negotiations with the
relevant lender, holder or guarantee agency, the United States
Department of Education, or the applicable state agency. The bureau
shall prepare a written summary of the parties and results of the
negotiations, including the amounts offered and accepted, the
discounts requested and granted, and any other information that is
available to any party that files a request for this information with
the bureau.
SEC. 88. Section 94990 of the Education Code is amended to read:
94990. The bureau is subject to the sunset review process
conducted by the Joint Legislative Sunset Review Committee pursuant
to Chapter 1 (commencing with Section 473) of Division 1.2 of the
Business and Professions Code. Notwithstanding that this chapter
does not specify that it will become inoperative on a specified date,
the analyses, reports, public hearings, evaluations, and
determinations required to be prepared, conducted, and made pursuant
to Chapter 1 (commencing with Section 473) of Division 1.2 of the
Business and Professions Code shall be prepared, conducted, and made
in 2002 and every four years thereafter as long as this chapter is
operative.
SEC. 89. Section 99235 of the Education Code is amended to read:
99235. (a) The Superintendent of Public Instruction shall notify
local educational agencies that they are eligible to receive funding
to provide instructional aides and paraprofessionals who directly
assist with classroom instruction in mathematics and reading with
professional development training in mathematics and reading, in an
amount equal to one thousand dollars ($1,000) per qualifying
instructional aide. Funding will be provided to local educational
agencies on a first-come-first-served basis. A local educational
agency that chooses to participate in the program is eligible to
receive funding for no greater than the percentage calculated in
accordance with provisions of an item of appropriation in the annual
Budget Act for its instructional aides and paraprofessionals.
However, the statewide total number of instructional aides and
paraprofessionals who directly assist with classroom instruction in
mathematics and reading served under this program may not exceed
9,600 over the two fiscal years.
(b) Of the incentive provided pursuant to subdivision (a), a local
educational agency may use not more than five hundred dollars ($500)
of the per instructional aide and paraprofessional, who directly
assist with classroom instruction in mathematics and reading, amount
to provide an individual instructional aid stipend.
SEC. 90. Section 11105 of the Elections Code is amended to read:
11105. Upon each submission, if fewer than 500 signatures are
submitted to the elections official, he or she shall count the number
of signatures and submit those results to the Secretary of State.
If 500 or more signatures are submitted, the elections official may
verify, using a random sampling technique, either 3 percent of the
signatures submitted, or 500, whichever is less. The random sample
of signatures to be verified shall be drawn in such a manner that
every signature filed with the elections official shall be given an
equal opportunity to be included in the sample. Upon completion of
the signature verification, the elections official shall report the
results to the Secretary of State pursuant to Section 11104.
SEC. 91. Section 14310 of the Elections Code is amended to read:
14310. (a) At all elections, a voter claiming to be properly
registered but whose qualification or entitlement to vote cannot be
immediately established upon examination of the index of registration
for the precinct or upon examination of the records on file with the
county elections official, shall be entitled to vote a provisional
ballot as follows:
(1) An election official shall advise the voter of the voter's
right to cast a provisional ballot.
(2) The voter shall be provided a provisional ballot, written
instructions regarding the process and procedures for casting the
provisional ballot, and a written affirmation regarding the voter's
registration and eligibility to vote. The written instructions shall
include the information set forth in subdivisions (c) and (d).
(3) The voter shall be required to execute, in the presence of an
elections official, the written affirmation stating that the voter is
eligible to vote and registered in the county where the voter
desires to vote.
(b) Once voted, the voter's ballot shall be sealed in a
provisional ballot envelope, and the ballot in its envelope shall be
deposited in the ballot box. All provisional ballots voted shall
remain sealed in their envelopes for return to the elections official
in accordance with the elections official's instructions. The
provisional ballot envelopes specified in this subdivision shall be a
color different than the color of, but printed substantially similar
to, the envelopes used for absentee ballots, and shall be completed
in the same manner as absentee envelopes.
(c) (1) During the official canvass, the elections official shall
examine the records with respect to all provisional ballots cast.
Using the procedures that apply to the comparison of signatures on
absentee ballots, the elections official shall compare the signature
on each provisional ballot envelope with the signature on the voter's
affidavit of registration. If the signatures do not compare, the
ballot shall be rejected. A variation of the signature caused by the
substitution of initials for the first or middle name, or both,
shall not invalidate the ballot.
(2) Provisional ballots shall not be included in any semiofficial
or official canvass, except upon: (A) the elections official's
establishing prior to the completion of the official canvass, from
the records in his or her office, the claimant's right to vote; or
(B) the order of a superior court in the county of the voter's
residence. A voter may seek the court order specified in this
paragraph regarding his or her own ballot at any time prior to
completion of the official canvass. Any judicial action or appeal
shall have priority over all other civil matters.
(3) The provisional ballot of a voter who is otherwise entitled to
vote shall not be rejected because the voter did not cast his or her
ballot in the precinct to which he or she was assigned by the
elections official.
(A) If the ballot cast by the voter contains the same candidates
and measures on which the voter would have been entitled to vote in
his or her assigned precinct, the elections official shall count the
votes for the entire ballot.
(B) If the ballot cast by the voter contains candidates or
measures on which the voter would not have been entitled to vote in
his or her assigned precinct, the elections official shall count only
the votes for the candidates and measures on which the voter was
entitled to vote in his or her assigned precinct.
(d) The Secretary of State shall establish a free access system
that any voter who casts a provisional ballot may access to discover
whether the voter's provisional ballot was counted and, if not, the
reason why it was not counted.
(e) The Secretary of State may adopt appropriate regulations for
purposes of ensuring the uniform application of this section.
(f) This section shall apply to any absent voter described by
Section 3015 who is unable to surrender his or her unvoted absent
voter's ballot.
(g) Any existing supply of envelopes marked "special challenged
ballot" may be used until the supply is exhausted.
SEC. 92. Section 18541 of the Elections Code is amended to read:
18541. (a) No person shall, with the intent of dissuading another
person from voting, within 100 feet of a polling place, do any of
the following:
(1) Solicit a vote or speak to a voter on the subject of marking
his or her ballot.
(2) Place a sign relating to voters' qualifications or speak to a
voter on the subject of his or her qualifications except as provided
in Section 14240.
(3) Photograph, videotape, or otherwise record a voter entering or
exiting a polling place.
(b) Any violation of this section is punishable by imprisonment in
a county jail for not more than 12 months, or in the state prison.
Any person who conspires to violate this section is guilty of a
felony.
(c) For purposes of this section, 100 feet means a distance of 100
feet from the room or rooms in which voters are signing the roster
and casting ballots.
SEC. 93. Section 917 of the Evidence Code is amended to read:
917. (a) Whenever a privilege is claimed on the ground that the
matter sought to be disclosed is a communication made in confidence
in the course of the lawyer-client, physician-patient,
psychotherapist-patient, clergy-penitent, husband-wife, sexual
assault victim-counselor, or domestic violence victim-counselor
relationship, the communication is presumed to have been made in
confidence and the opponent of the claim of privilege has the burden
of proof to establish that the communication was not confidential.
(b) A communication between persons in a relationship listed in
subdivision (a) does not lose its privileged character for the sole
reason that it is communicated by electronic means or because persons
involved in the delivery, facilitation, or storage of electronic
communication may have access to the content of the communication.
(c) For purposes of this section, "electronic" has the same
meaning provided in Section 1633.2 of the Civil Code.
SEC. 94. Section 956.5 of the Evidence Code, as amended by Chapter
765 of the Statutes of 2003, is amended to read:
956.5. There is no privilege under this article if the lawyer
reasonably believes that disclosure of any confidential communication
relating to representation of a client is necessary to prevent a
criminal act that the lawyer reasonably believes is likely to result
in the death of, or substantial bodily harm to, an individual.
SEC. 95. Section 4962 of the Family Code is amended to read:
4962. (a) If all of the parties who are individuals reside in
this state and the child does not reside in the issuing state, a
tribunal of this state has jurisdiction to enforce and to modify the
issuing state's child support order in a proceeding to register that
order.
(b) A tribunal of this state exercising jurisdiction under this
section shall apply the provisions of Articles 1 (commencing with
Section 4900) and 2 (commencing with Section 4905), this article, and
the procedural and substantive law of this state to the proceeding
for enforcement or modification. Articles 3 (commencing with Section
4915) to 5 (commencing with Section 4940), inclusive, and Articles 7
(commencing with Section 4965) and 8 (commencing with Section 4970)
do not apply.
SEC. 96. Section 17600 of the Family Code is amended to read:
17600. (a) The Legislature finds and declares all of the
following:
(1) The Legislative Analyst has found that county child support
enforcement programs provide a net increase in revenues to the state.
(2) The state has a fiscal interest in ensuring that county child
support enforcement programs perform efficiently.
(3) The state does not provide information to counties on child
support enforcement programs, based on common denominators that would
facilitate comparison of program performance.
(4) Providing this information would allow county officials to
monitor program performance and to make appropriate modifications to
improve program efficiency.
(5) This information is required for effective management of the
child support program.
(b) Except as provided in this subdivision commencing with the
1998-99 fiscal year, and for each fiscal year thereafter, each county
that is participating in the state incentive program described in
Section 17704 shall provide to the department, and the department
shall compile from this county child support information, monthly and
annually, all of the following performance-based data, as
established by the federal incentive funding system, provided that
the department may revise the data required by this paragraph in
order to conform to the final federal incentive system data
definitions:
(1) One of the following data relating to paternity establishment,
as required by the department, provided that the department shall
require all counties to report on the same measurement:
(A) The total number of children in the caseload governed by Part
D (commencing with Section 451) of Title IV of the federal Social
Security Act (42 U.S.C. Sec. 651 et seq.), as of the end of the
federal fiscal year, who were born to unmarried parents for whom
paternity was established or acknowledged, and the total number of
children in that caseload, as of the end of the preceding federal
fiscal year, who were born to unmarried parents.
(B) The total number of minor children who were born in the state
to unmarried parents for whom paternity was established or
acknowledged during a federal fiscal year, and the total number of
children in the state born to unmarried parents during the preceding
calendar year.
(2) The number of cases governed by Part D (commencing with
Section 451) of Title IV of the federal Social Security Act (42
U.S.C. Sec. 651 et seq.) during the federal fiscal year and the total
number of those cases with support orders.
(3) The total dollars collected during the federal fiscal year for
current support in cases governed by Part D (commencing with Section
451) of Title IV of the federal Social Security Act (42 U.S.C. Sec.
651 et seq.) and the total number of dollars owing for current
support during that federal fiscal year in cases governed by those
provisions.
(4) The total number of cases for the federal fiscal year governed
by Part D (commencing with Section 451) of Title IV of the federal
Social Security Act (42 U.S.C. Sec. 651 et seq.) in which payment was
being made toward child support arrearages and the total number of
cases for that fiscal year governed by these federal provisions that
had child support arrearages.
(5) The total number of dollars collected and expended during a
federal fiscal year in cases governed by Part D (commencing with
Section 451) of Title IV of the federal Social Security Act (42
U.S.C. Sec. 651 et seq.).
(6) The total amount of child support dollars collected during a
federal fiscal year, and, if and when required by federal law, the
amount of these collections broken down by collections distributed on
behalf of current recipients of federal Temporary Assistance for
Needy Families block grant funds or federal foster care funds, on
behalf of former recipients of federal Temporary Assistance for Needy
Families block grant funds or federal foster care funds, or on
behalf of persons who have never been recipients of these federal
funds.
(c) In addition to the information required by subdivision (b),
the department shall collect, on a monthly basis, from each county
that is participating in the state incentive program described in
Section 17704, information on the local child support agency for each
federal fiscal year, and shall report semiannually on all of the
following performance measurements:
(1) The percentage of cases with collections of current support.
This percentage shall be calculated by dividing the number of cases
with an order for current support by the number of those cases with
collections of current support. The number of cases with support
collected shall include only the number of cases actually receiving a
collection, not the number of payments received. Cases with a
medical support order that do not have an order for current support
may not be counted.
(2) The average amount collected per case for all cases with
collections.
(3) The percentage of cases that had a support order established
during the period. A support order shall be counted as established
only when the appropriate court has issued an order for child
support, including an order for temporary child support, or an order
for medical support.
(4) The total cost of administering the local child support
agency, including the federal, state, and county share of the costs,
and the federal and state incentives received by each county. The
total cost of administering the program shall be broken down by the
following:
(A) The direct costs of the program, broken down further by total
employee salaries and benefits, a list of the number of employees
broken down into at least the following categories: attorneys,
administrators, caseworkers, investigators, and clerical support;
contractor costs; space charges; and payments to other county
agencies. Employee salaries and numbers need only be reported in the
annual report.
(B) The indirect costs, showing all overhead charges.
(5) In addition, the local child support agency shall report
monthly on measurements developed by the department that provide data
on the following:
(A) Locating obligors.
(B) Obtaining and enforcing medical support.
(C) Providing customer service.
(D) Any other measurements that the director determines to be an
appropriate determination of a local child support agency's
performance.
(6) A county may apply for an exemption from any or all of the
reporting requirements of this subdivision for a fiscal year by
submitting an application for the exemption to the department at
least three months prior to the commencement of the fiscal year or
quarter for which the exemption is sought. A county shall provide a
separate justification for each data element under this subdivision
for which the county is seeking an exemption and the cost to the
county of providing the data. The department may not grant an
exemption for more than one year. The department may grant a single
exemption only if both of the following conditions are met:
(A) The county cannot compile the data being sought through its
existing automated system or systems.
(B) The county cannot compile the data being sought through manual
means or through an enhanced automated system or systems without
significantly harming the child support collection efforts of the
county.
(d) After implementation of the statewide automated system, in
addition to the information required by subdivision (b), the
Department of Child Support Services shall collect, on a monthly
basis, from each county that is participating in the state incentive
program described in Section 17704, information on the county child
support enforcement program beginning with the 1998-99 fiscal year or
a later fiscal year, as appropriate, and for each subsequent fiscal
year, and shall report semiannually on all of the following
measurements:
(1) For each of the following support collection categories, the
number of cases with support collected shall include only the number
of cases actually receiving a collection, not the number of payments
received.
(A) (i) The number of cases with collections for current support.
(ii) The number of cases with arrears collections only.
(iii) The number of cases with both current support and arrears
collections.
(B) For cases with current support only due:
(i) The number of cases in which the full amount of current
support owed was collected.
(ii) The number of cases in which some amount of current support,
but less than the full amount of support owed, was collected.
(iii) The number of cases in which no amount of support owed was
collected.
(C) For cases in which arrears only were owed:
(i) The number of cases in which all arrears owed were collected.
(ii) The number of cases in which some amount of arrears, but less
than the full amount of arrears owed, were collected.
(iii) The number of cases in which no amount of arrears owed were
collected.
(D) For cases in which both current support and arrears are owed:
(i) The number of cases in which the full amount of current
support and arrears owed were collected.
(ii) The number of cases in which some amount of current support
and arrears, but less than the full amount of support owed, were
collected.
(iii) The number of cases in which no amount of support owed was
collected.
(E) The total number of cases in which an amount was due for
current support only.
(F) The total number of cases in which an amount was due for both
current support and arrears.
(G) The total number of cases in which an amount was due for
arrears only.
(H) For cases with current support due, the number of cases
without orders for medical support and the number of cases with an
order for medical support.
(2) The number of alleged fathers or obligors who were served with
a summons and complaint to establish paternity or a support order,
and the number of alleged fathers or obligors for whom it is required
that paternity or a support order be established. In order to be
counted under this paragraph, the alleged father or obligor shall be
successfully served with process. An alleged father shall be counted
under this paragraph only once if he is served with process
simultaneously for both a paternity and a support order proceeding
for the same child or children. For purposes of this paragraph, a
support order shall include a medical support order.
(3) The number of new asset seizures or successful initial
collections on a wage assignment for purposes of child support
collection. For purposes of this paragraph, a collection made on a
wage assignment shall be counted only once for each wage assignment
issued.
(4) The number of children requiring paternity establishment and
the number of children for whom paternity has been established during
the period. Paternity may only be established once for each child.
Any child for whom paternity is not at issue shall not be counted in
the number of children for whom paternity has been established. For
this purpose, paternity is not at issue if the parents were married
and neither parent challenges paternity or a voluntary paternity
declaration has been executed by the parents prior to the local child
support agency obtaining the case and neither parent challenges
paternity.
(5) The number of cases requiring that a support order be
established and the number of cases that had a support order
established during the period. A support order shall be counted as
established only when the appropriate court has issued an order for
child support, including an order for temporary child support, or an
order for medical support.
(6) The total cost of administering the local child support
agency, including the federal, state, and county share of the costs
and the federal and state incentives received by each county. The
total cost of administering the program shall be broken down by the
following:
(A) The direct costs of the program, broken down further by total
employee salaries and benefits, a list of the number of employees
broken down into at least the following categories: attorneys,
administrators, caseworkers, investigators, and clerical support;
contractor costs; space charges; and payments to other county
agencies. Employee salaries and numbers need only be reported in the
annual report.
(B) The indirect costs, showing all overhead charges.
(7) The total child support collections due, broken down by
current support, interest on arrears, and principal, and the total
child support collections that have been collected, broken down by
current support, interest on arrears, and principal.
(8) The actual case status for all cases in the county child
support enforcement program. Each case shall be reported in one case
status only. If a case falls within more than one status category,
it shall be counted in the first status category of the list set
forth below in which it qualifies. The following shall be the case
status choices:
(A) No support order, location of obligor parent required.
(B) No support order, alleged obligor parent located and paternity
required.
(C) No support order, location and paternity not at issue but
support order must be established.
(D) Support order established with current support obligation and
obligor is in compliance with support obligation.
(E) Support order established with current support obligation,
obligor is in arrears, and location of obligor is necessary.
(F) Support order established with current support obligation,
obligor is in arrears, and location of obligor's assets is necessary.
(G) Support order established with current support obligation,
obligor is in arrears, and no location of obligor or obligor's assets
is necessary.
(H) Support order established with current support obligation,
obligor is in arrears, the obligor is located, but the local child
support agency has established satisfactorily that the obligor has no
income or assets and no ability to earn.
(I) Support order established with current support obligation and
arrears, obligor is paying the current support and is paying some or
all of the interest on the arrears, but is paying no principal.
(J) Support order established for arrears only and obligor is
current in repayment obligation.
(K) Support order established for arrears only, obligor is not
current in arrears repayment schedule, and location of obligor is
required.
(L) Support order established for arrears only, obligor is not
current in arrears repayment schedule, and location of obligor's
assets is required.
(M) Support order established for arrears only, obligor is not
current in arrears repayment schedule, and no location of obligor or
obligor's assets is required.
(N) Support order established for arrears only, obligor is not
current in arrears repayment, and the obligor is located, but the
local child support agency has established satisfactorily that the
obligor has no income or assets and no ability to earn.
(O) Support order established for arrears only and obligor is
repaying some or all of the interest, but no principal.
(P) Other, if necessary, to be defined in the regulations
promulgated under subdivision (e).
(e) Upon implementation of the statewide automated system, or at
the time that the department determines that compliance with this
subdivision is possible, whichever is earlier, each county that is
participating in the state incentive program described in Section
17704 shall collect and report, and the department shall compile for
each participating county, information on the county child support
program in each fiscal year, all of the following data, in a manner
that facilitates comparison of counties and the entire state, except
that the department may eliminate or modify the requirement to report
any data mandated to be reported pursuant to this subdivision if the
department determines that the local child support agencies are
unable to accurately collect and report the information or that
collecting and reporting of the data by the local child support
agencies will be onerous:
(1) The number of alleged obligors or fathers who receive CalWORKs
benefits, food stamp benefits, and Medi-Cal benefits.
(2) The number of obligors or alleged fathers who are in state
prison or county jail.
(3) The number of obligors or alleged fathers who do not have a
social security number.
(4) The number of obligors or alleged fathers whose address is
unknown.
(5) The number of obligors or alleged fathers whose complete name,
consisting of at least a first and last name, is not known by the
local child support agency.
(6) The number of obligors or alleged fathers who filed a tax
return with the Franchise Tax Board in the last year for which a data
match is available.
(7) The number of obligors or alleged fathers who have no income
reported to the Employment Development Department during the third
quarter of the fiscal year.
(8) The number of obligors or alleged fathers who have income
between one dollar ($1) and five hundred dollars ($500) reported to
the Employment Development Department during the third quarter of the
fiscal year.
(9) The number of obligors or alleged fathers who have income
between five hundred one dollars ($501) and one thousand five hundred
dollars ($1,500) reported to the Employment Development Department
during the third quarter of the fiscal year.
(10) The number of obligors or alleged fathers who have income
between one thousand five hundred one dollars ($1,501) and two
thousand five hundred dollars ($2,500) reported to the Employment
Development Department during the third quarter of the fiscal year.
(11) The number of obligors or alleged fathers who have income
between two thousand five hundred one dollars ($2,501) and three
thousand five hundred dollars ($3,500) reported to the Employment
Development Department during the third quarter of the fiscal year.
(12) The number of obligors or alleged fathers who have income
between three thousand five hundred one dollars ($3,501) and four
thousand five hundred dollars ($4,500) reported to the Employment
Development Department during the third quarter of the fiscal year.
(13) The number of obligors or alleged fathers who have income
between four thousand five hundred one dollars ($4,501) and five
thousand five hundred dollars ($5,500) reported to the Employment
Development Department during the third quarter of the fiscal year.
(14) The number of obligors or alleged fathers who have income
between five thousand five hundred one dollars ($5,501) and six
thousand five hundred dollars ($6,500) reported to the Employment
Development Department during the third quarter of the fiscal year.
(15) The number of obligors or alleged fathers who have income
between six thousand five hundred one dollars ($6,501) and seven
thousand five hundred dollars ($7,500) reported to the Employment
Development Department during the third quarter of the fiscal year.
(16) The number of obligors or alleged fathers who have income
between seven thousand five hundred one dollars ($7,501) and nine
thousand dollars ($9,000) reported to the Employment Development
Department during the third quarter of the fiscal year.
(17) The number of obligors or alleged fathers who have income
exceeding nine thousand dollars ($9,000) reported to the Employment
Development Department during the third quarter of the fiscal year.
(18) The number of obligors or alleged fathers who have two or
more employers reporting earned income to the Employment Development
Department during the third quarter of the fiscal year.
(19) The number of obligors or alleged fathers who receive
unemployment benefits during the third quarter of the fiscal year.
(20) The number of obligors or alleged fathers who receive state
disability benefits during the third quarter of the fiscal year.
(21) The number of obligors or alleged fathers who receive workers'
compensation benefits during the third quarter of the fiscal year.
(22) The number of obligors or alleged fathers who receive Social
Security Disability Insurance benefits during the third quarter of
the fiscal year.
(23) The number of obligors or alleged fathers who receive
Supplemental Security Income/State Supplementary Program for the
Aged, Blind and Disabled benefits during the third quarter of the
fiscal year.
(f) The department, in consultation with the Legislative Analyst's
Office, the Judicial Council, the California Family Support Council,
and child support advocates, shall develop regulations to ensure
that all local child support agencies report the data required by
this section uniformly and consistently throughout California.
(g) For each federal fiscal year, the department shall provide the
information for all participating counties to each member of a
county board of supervisors, county executive officer, local child
support agency, and the appropriate policy committees and fiscal
committees of the Legislature on or before June 30, of each fiscal
year. The department shall provide data semiannually, based on the
federal fiscal year, on or before December 31, of each year. The
department shall present the information in a manner that facilitates
comparison of county performance.
(h) For purposes of this section, "case" means a noncustodial
parent, whether mother, father, or putative father, who is, or
eventually may be, obligated under law for support of a child or
children. For purposes of this definition, a noncustodial parent
shall be counted once for each family that has a dependent child he
or she may be obligated to support.
(i) This section shall be operative only for as long as Section
17704 requires participating counties to report data to the
department.
SEC. 97. Section 216.3 of the Financial Code is amended to read:
216.3. (a) For purposes of this section, the following
definitions apply:
(1) "Applicable law" means:
(A) With respect to any bank, Division 1.5 (commencing with
Section 4800), and any of the following provisions of Division 1
(commencing with Section 99) of the Financial Code:
(i) Article 5 (commencing with Section 270) of Chapter 2.
(ii) Article 3 (commencing with Section 640) of Chapter 5.
(iii) Article 4.5 (commencing with Section 670) of Chapter 5.
(iv) Article 6 (commencing with Section 690) of Chapter 5.
(v) Chapter 6 (commencing with Section 750).
(vi) Chapter 10 (commencing with Section 1200).
(vii) Article 1 (commencing with Section 1400) of Chapter 11.
(viii) Chapter 12 (commencing with Section 1500).
(ix) Chapter 13.5 (commencing with Section 1700).
(x) Section 1936.
(xi) Section 1937.
(xii) Section 1938.
(xiii) Section 1939.
(xiv) Section 1945.
(xv) Section 1951.
(xvi) Section 3359.
(xvii) Chapter 19 (commencing with Section 3500).
(xviii) Chapter 21.5 (commencing with Section 3750).
(xix) Chapter 22 (commencing with Section 3800).
(B) With respect to any savings association, any provision of
Division 1.5 (commencing with Section 4800) and Division 2
(commencing with Section 5000).
(C) With respect to any issuer of traveler's checks, any provision
of Chapter 14A (commencing with Section 1851) of Division 1.
(D) With respect to any insurance premium finance company, any
provision of Division 7 (commencing with Section 18000).
(E) With respect to any business and development corporation, any
provision of Division 15 (commencing with Section 31000).
(F) With respect to any credit union, any of the following
provisions:
(i) Section 14252.
(ii) Section 14253.
(iii) Section 14255.
(iv) Article 4 (commencing with Section 14350) of Chapter 3 of
Division 5.
(v) Section 14401.
(vi) Section 14404.
(vii) Section 14408, only as that section applies to gifts to
directors, volunteers, and employees, and the related family or
business interests of the directors, volunteers, and employees.
(viii) Section 14409.
(ix) Section 14410.
(x) Article 5 (commencing with Section 14600) of Chapter 4 of
Division 5.
(xi) Article 6 (commencing with Section 14650) of Chapter 4 of
Division 5, excluding subdivision (a) of Section 14651.
(xii) Section 14803.
(xiii) Section 14851.
(xiv) Section 14858.
(xv) Section 14860.
(xvi) Section 14861.
(xvii) Section 14863.
(G) With respect to any person licensed to transmit money abroad,
any provision of Chapter 14 (commencing with Section 1800).
(H) With respect to any person licensed to sell payment
instruments, any provision of Division 16 (commencing with Section
33000).
(2) "Licensee" means any bank, savings association, credit union,
transmitter of money abroad, issuer of payment instruments, issuer of
traveler's checks, insurance premium finance agency, or business and
industrial development corporation that is authorized by the
commissioner to conduct business in this state.
(b) Notwithstanding any other provision of this code that applies
to a licensee or a subsidiary of a licensee, after notice and an
opportunity to be heard, the commissioner may, by order that shall
include findings of fact which incorporates a determination made in
accordance with subdivision (e), levy civil penalties against any
licensee or any subsidiary of a licensee who has violated any
provision of applicable law, any order issued by the commissioner,
any written agreement between the commissioner and the licensee or
subsidiary of the licensee, or any condition of any approval issued
by the commissioner. Notwithstanding any other provision of law,
neither the commissioner nor any employee of the department shall
disclose or permit the disclosure of any record, record of any
action, or information contained in a record of any action, taken by
the commissioner under the provisions of this section, unless the
action was taken pursuant to paragraph (2) of subdivision (b), to
persons other than federal or state government employees who are
authorized by statute to obtain the records in the performance of
their official duties, unless the disclosure is authorized or
requested by the affected licensee or the affected subsidiary of the
licensee. The commissioner shall have the sole authority to bring
any action with respect to a violation of applicable law subject to a
penalty imposed under this section.
Except as provided in paragraphs (1) and (2), any penalty imposed
by the commissioner may not exceed one thousand dollars ($1,000) a
day, provided that the aggregate penalty of all offenses in any one
action against any licensee or subsidiary of a licensee shall not
exceed fifty thousand dollars ($50,000).
(1) If the commissioner determines that any licensee or subsidiary
of the licensee has recklessly violated any applicable law, any
order issued by the commissioner, any provision of any written
agreement between the commissioner and the licensee or subsidiary, or
any condition of any approval issued by the commissioner, the
commissioner may impose a penalty not to exceed five thousand dollars
($5,000) per day, provided that the aggregate penalty of all
offenses in an action against any licensee or subsidiary of a
licensee shall not exceed seventy-five thousand dollars ($75,000).
(2) If the commissioner determines that any licensee or subsidiary
of the licensee has knowingly violated any applicable law, any order
issued by the commissioner, any provision of any written agreement
between the commissioner and the licensee or subsidiary, or any
condition of any approval issued by the commissioner, the
commissioner may impose a penalty not to exceed ten thousand dollars
($10,000) per day, provided that the aggregate penalty of all
offenses in an action against any licensee or subsidiary of a
licensee shall not exceed 1 percent of the total assets of the
licensee or subsidiary of a licensee subject to the penalty.
(c) Nothing in this section shall be construed to impair or impede
the commissioner from pursuing any other administrative action
allowed by law.
(d) Nothing in this section shall be construed to impair or impede
the commissioner from bringing an action in court to enforce any law
or order he or she has issued, including orders issued under this
section. Nothing in this section shall be construed to impair or
impede the commissioner from seeking any other damages or injunction
allowed by law.
(e) In determining the amount and the appropriateness of
initiating a civil money penalty under subdivision (b), the
commissioner shall consider all of the following:
(1) Evidence that the violation or practice or breach of duty was
intentional or was committed with a disregard of the law or with a
disregard of the consequences to the institution.
(2) The duration and frequency of the violations, practices, or
breaches of duties.
(3) The continuation of the violations, practices, or breaches of
duty after the licensee or subsidiary of the licensee was notified,
or, alternatively, its immediate cessation and correction.
(4) The failure to cooperate with the commissioner in effecting
early resolution of the problem.
(5) Evidence of concealment of the violation, practice, or breach
of duty or, alternatively, voluntary disclosure of the violation,
practice, or breach of duty.
(6) Any threat of loss, actual loss, or other harm to the
institution, including harm to the public confidence in the
institution, and the degree of that harm.
(7) Evidence that a licensee or subsidiary of a licensee received
financial gain or other benefit as a result of the violation,
practice, or breach of duty.
(8) Evidence of any restitution paid by a licensee or subsidiary
of a licensee of losses resulting from the violation, practice, or
breach of duty.
(9) History of prior violations, practices, or breaches of duty,
particularly where they are similar to the actions under
consideration.
(10) Previous criticism of the institution for similar actions.
(11) Presence or absence of a compliance program and its
effectiveness.
(12) Tendency to engage in violations of law, unsafe or unsound
banking practices, or breaches of duties.
(13) The existence of agreements, commitments, orders, or
conditions imposed in writing intended to prevent the violation,
practice, or breach of duty.
(14) Whether the violation, practice, or breach of duty causes
quantifiable, economic benefit or loss to the licensee or the
subsidiary of the licensee. In those cases, removal of the benefit
or recompense of the loss usually will be insufficient, by itself, to
promote compliance with the applicable law, order, or written
agreement. The penalty amount should reflect a remedial purpose and
should provide a deterrent to future misconduct.
(15) Other factors as the commissioner may, in his or her opinion,
consider relevant to assessing the penalty or establishing the
amount of the penalty.
(f) The amounts collected under this section shall be deposited in
the appropriate fund of the department. For purposes of this
subdivision, the term "appropriate fund" means the fund to which the
annual assessments of fined licensees, or the parent licensee of the
fined subsidiary, are credited.
SEC. 98. Section 258 of the Financial Code is amended to read:
258. At least once each month, the commissioner shall issue and
disseminate as the commissioner deems appropriate a bulletin
containing the following information:
(a) Information regarding any of the following actions taken since
issuance of the previous bulletin:
(1) The filing, approval, or denial under Chapter 3 (commencing
with Section 350) of an application for authority to organize a
California state bank, or the issuance under Chapter 3 of a
certificate of authority to a California state bank.
(2) The filing, approval, or denial under Article 1 (commencing
with Section 5400) of Chapter 2 of Division 2 of an application for
the issuance of an organizing permit for the organization of a
California savings association, or for the issuance under Article 2
(commencing with Section 5500) of Chapter 2 of Division 2 of a
certificate of authority to a California savings association.
(3) The filing, approval, or denial under Article 2 (commencing
with Section 14150) of Chapter 2 of Division 5 of an application for
a certificate to act as a credit union, or the issuance of a
certificate to engage in the business of a credit union.
(4) The filing, approval, or denial under Chapter 14 (commencing
with Section 1800), Chapter 14A (commencing with Section 1851),
Division 7 (commencing with Section 18000), Division 15 (commencing
with Section 31000), or Division 16 (commencing with Section 33000)
of an application for a license to engage in business, or the
issuance under any of those laws of a license to engage in business.
(5) The filing, approval, or denial under Chapter 13.5 (commencing
with Section 1700) of an application by a foreign (other nation)
bank to establish its first office of any particular class (as
determined under Section 1701) in this state, or the issuance under
that chapter of a license in connection with the establishment of
such an office.
(6) The filing, approval, or denial under Division 1.5 (commencing
with Section 4800) of an application for approval of a sale, merger,
or conversion.
(7) The filing, approval, or denial under Article 6 (commencing
with Section 5700) of Chapter 2 of Division 2 of an application for
approval of a conversion of a federal savings association into a
state savings association, or the filing of a federal charter of a
state savings association that has converted to a federal savings
association.
(8) The filing, approval, or denial under Article 7 (commencing
with Section 5750) of Chapter 2 of Division 2 of an application for
approval of a reorganization, merger, consolidation, or transfer of
assets of a state savings association.
(9) The filing, approval, or denial under Chapter 9 (commencing
with Section 15200) of Division 5 of an application for approval of a
merger, dissolution, or conversion of a credit union.
(10) The taking of possession of the property and business of a
California state bank, savings association, credit union, or person
licensed by the commissioner under any of the laws cited in paragraph
(2).
(b) Other information as the commissioner deems appropriate.
SEC. 99. Section 645 of the Financial Code is amended to read:
645. If the commissioner finds that the shareholders' equity of a
bank is not adequate or that the making by a bank or by any
majority-owned subsidiary of a bank of a distribution to the
shareholders of the bank would be unsafe or unsound for the bank, the
commissioner may order the bank and its majority-owned subsidiaries
not to make any distribution to the shareholders of the bank. In
addition to the order authorized by this section, the commissioner
may levy a civil penalty against the bank pursuant to Section 216.3.
SEC. 100. Section 690 of the Financial Code is amended to read:
690. Unless the context otherwise requires, in this article:
(a) "Offer" or "offer to sell" includes every attempt or offer to
dispose of, or solicitation of an offer to buy, a security for value.
(b) "Sale" or "sell" includes every contract of sale of, contract
to sell, or disposition of, a security for value. "Sale" or "sell"
includes any exchange of securities and any change in the rights,
preferences, privileges, or restrictions of or on outstanding
securities.
(c) "Security" means any stock, capital note, or debenture, or any
warrant, right, or option to subscribe to or purchase any of the
foregoing.
(d) The terms defined in subdivisions (a) and (b) do not include
any stock dividend payable with respect to common stock of a bank
solely (except for any cash or scrip paid for fractional shares) in
shares of such common stock, if such bank has no other class of
voting stock outstanding, provided that shares issued in any such
dividend shall be subject to any conditions previously imposed by the
commissioner applicable to the shares with respect to which they are
issued.
SEC. 101. Section 777.5 of the Financial Code is amended to read:
777.5. (a) Notwithstanding the provisions of Sections 1051, 1052,
and 1054 of the Labor Code and Section 2947 of the Penal Code, a
bank or any affiliate thereof, licensed under the laws of any state
or of the United States, or any officer or employee thereof, may
deliver fingerprints taken of a director, an officer, an employee, or
an applicant for employment to local, state, or federal law
enforcement agencies for the purpose of obtaining information as to
the existence and nature of a criminal record, if any, of the person
fingerprinted relating to convictions, and to any arrest for which
that person is released on bail or on his or her own recognizance
pending trial, for the commission or attempted commission of a crime
involving robbery, burglary, theft, embezzlement, fraud, forgery,
bookmaking, receiving stolen property, counterfeiting, or involving
checks or credit cards or using computers.
(b) The Department of Justice shall, pursuant to Section 11105 of
the Penal Code, and a local agency may, pursuant to Section 13300 of
the Penal Code, furnish to the officer of the bank or affiliate
responsible for the final decision regarding employment of the person
fingerprinted, or to his or her designees having responsibilities
for personnel or security decisions in the usual scope and course of
their employment with the bank or affiliate, summary criminal history
information when requested pursuant to this section. If, upon
evaluation of the criminal history information received pursuant to
this section, the bank or affiliate determines that employment of the
person fingerprinted would constitute an unreasonable risk to that
bank or affiliate or its customers, the person may be denied
employment.
(c) A request for records pursuant to this section made of the
Department of Justice shall be on a form approved by the department.
The department may charge a fee to be paid by the requesting bank or
affiliate pursuant to subdivision (e) of Section 11105 of the Penal
Code. No request shall be submitted without the written consent of
the person fingerprinted.
(d) Any criminal history information obtained pursuant to this
section is confidential and no recipient shall disclose its contents
other than for the purpose for which it was acquired.
(e) "Affiliate," as used in this section, means any corporation
controlling, controlled by, or under common control with, a bank,
whether directly, indirectly, or through one or more intermediaries.
SEC. 102. Section 867 of the Financial Code is amended to read:
867. (a) Funds deposited in an account at a depository
institution shall be available on the second business day after the
business day on which those funds are deposited in the case of a
cashier's check, certified check, teller's check, or depository check
subject to the following:
(1) The check is endorsed only by the person to whom it was
issued.
(2) The check is deposited in a receiving depository institution
that is staffed by individuals employed by that institution.
(3) The check is deposited with a special deposit slip that
indicates it is a cashier's check, certified check, teller's check,
or depository check, as the case may be.
(4) The check is deposited into an account in the name of a
customer that has maintained any account with the receiving
depository institution for a period of 60 days or more.
(5) The face amount of the check is for five thousand dollars
($5,000) or less.
In the case of funds deposited on any business day in an account
at a depository institution by depository checks, the aggregate
amount of which exceeds five thousand dollars ($5,000), this
subdivision shall apply only with respect to the first five thousand
dollars ($5,000) of the aggregate amount.
(b) Subdivision (a) does not apply to a depository check if the
receiving depository institution reasonably believes that the check
is uncollectible from the originating depository institution. For
purposes of this subdivision, "reasonable cause to believe" requires
the existence of facts that would cause a well-grounded belief in the
mind of a reasonable person. These reasons shall include, but not
be limited to, a belief that (1) the drawer or drawee of the
depository check has been, or will imminently be, adjudicated a
bankrupt or placed in receivership or (2) the depository check may be
involved in a fraud or in a scheme commonly known as "kiting." In
these situations, the depository institution electing to proceed
under this subdivision shall so notify the drawer and drawee no later
than the close of the next business day following deposit of the
depository check.
(c) For purposes of this section, the following terms have the
following meanings:
(1) "Account" means any demand deposit account and any other
similar transaction account at a depository institution.
(2) "Business day" means any day other than a Saturday, Sunday, or
legal holiday.
(3) "Cashier's check" means any check that is subject to the
following:
(A) The check is drawn on a depository institution.
(B) The check is signed by an officer or employee of the
depository institution.
(C) The check is a direct obligation of the depository
institution.
(4) "Certified check" means any check with respect to which a
depository institution certifies the following:
(A) That the signature on the check is genuine.
(B) The depository institution has set aside funds that are equal
to the amount of the check and will be used only to pay that check.
(5) "Depository check" means any cashier's check, certified check,
teller's check, and any other functionally equivalent instrument, as
determined by the Board of Governors of the Federal Reserve System
or the commissioner.
(6) "Depository institution" has the meaning given in clauses (i)
to (vi), inclusive, of Section 19(b)(1)(A) of the Federal Reserve
Act.
(7) "Teller's check" means any check issued by a depository
institution and drawn on another depository institution.
(d) Except for the specific circumstances and checks described in
this section, this section is not intended to restrict or preempt the
regulatory authority of the commissioner.
(e) In the event of a suspension or modification of any similar
provisions in the federal Expedited Funds Availability Act, the
effect of this section shall be similarly suspended or modified.
SEC. 103. Section 1753 of the Financial Code is amended to read:
1753. (a) (1) No foreign (other nation) bank shall establish or
maintain an agency or branch office unless the commissioner shall
have first approved the establishment of that office and issued a
license authorizing the bank to maintain the office.
(2) Paragraph (1) shall not be deemed to prohibit a foreign (other
nation) bank from establishing or maintaining a federal agency or
federal branch in this state.
(b) If the commissioner finds the following with respect to an
application by a foreign (other nation) bank for approval to
establish an agency or branch office, the commissioner shall approve
the application:
(1) That the bank, any controlling person of the bank, the
directors and executive officers of the bank or of any controlling
person of the bank, and the proposed management of the office are
each of good character and sound financial standing.
(2) That the financial history and condition of the bank are
satisfactory.
(3) That the management of the bank and the proposed management of
the office are adequate.
(4) That it is reasonable to believe that, if licensed to maintain
the office, the bank will operate the office in a safe and sound
manner and in compliance with all applicable laws, regulations, and
orders.
(5) That the bank's plan to establish and to maintain the office
affords reasonable promise of successful operation.
(6) That the bank's establishment and maintenance of the office
will promote the public convenience and advantage.
(7) In case the office is to be a branch office, that the foreign
nation where the bank is domiciled permits banks organized under the
laws of this state and national banks headquartered in this state to
establish and maintain in those foreign nation offices substantially
equivalent to agencies, offices substantially equivalent to branch
offices, or wholly (except for directors' qualifying shares) owned
banks organized under the laws of the foreign nation.
If the commissioner finds otherwise, the commissioner shall deny
the application.
(c) Whenever an application by a foreign (other nation) bank for
approval to establish an agency or branch office has been approved
and all conditions precedent to the issuance of a license authorizing
the bank to maintain the office have been fulfilled, the
commissioner shall issue the license.
SEC. 104. Section 1807 of the Financial Code is amended to read:
1807. (a) The commissioner may by order or regulation grant
exemptions from this section in cases where the commissioner finds
that the requirements of this section are not necessary.
(b) Each licensee shall, within 90 days after the end of each
fiscal year, or within such extended time as the commissioner may
prescribe, file with the commissioner an audit report for the fiscal
year.
(c) The audit report called for in subdivision (b) shall comply
with all of the following provisions:
(1) The audit report shall contain such audited financial
statements of the licensee for or as of the end of the fiscal year
prepared in accordance with generally accepted accounting principles
and such other information as the commissioner may require.
(2) The audit report shall be based upon an audit of the bank
conducted in accordance with generally accepted auditing standards
and such other requirements as the commissioner may prescribe.
(3) The audit report shall be prepared by an independent certified
public accountant or independent public accountant who is not
unsatisfactory to the commissioner.
(4) The audit report shall include or be accompanied by a
certificate of opinion of the independent certified public accountant
or independent public accountant that is satisfactory in form and
content to the commissioner. If the certificate or opinion is
qualified, the commissioner may order the licensee to take such
action as the commissioner may find necessary to enable the
independent or certified public accountant or independent public
accountant to remove the qualification.
(d) Each licensee shall, not more than 45 days after the end of
each quarter (except the fourth quarter of its fiscal year), or
within a longer period as the commissioner may by regulation or order
specify, file with the commissioner a report containing all of the
following:
(1) Financial statements, including balance sheet, income
statement, statement of changes in shareholders' equity, and
statement of cashflows, for, or as of the end of, that fiscal
quarter, verified by two of the licensee's principal officers. The
verification shall state that each of the officers making the
verification has a personal knowledge of the matters in the report
and that each of them believes that each statement on the report is
true.
(2) The current address of the headquarters office and each branch
office of the licensee and each agent at which the licensee receives
transmission money in this state.
(3) The name and business address of each person who acted as an
agent of the licensee during the quarter in this state, and if the
person is no longer an agent of the licensee, the date on which the
relationship terminated.
(4) Other information as the commissioner may by regulation or
order require.
(e) Each licensee shall file with the commissioner other reports
as and when the commissioner may by regulation or order require.
SEC. 105. Section 1908 of the Financial Code is amended to read:
1908. The commissioner, a deputy commissioner, and every examiner
assigned to an examination may administer an oath to any person
whose testimony is required for the purposes of any examination
authorized by this division and may by issuance of subpoena compel
the appearance of any person and the production of any evidence for
the purposes of the examination.
SEC. 106. Section 3804 of the Financial Code is amended to read:
3804. Fees shall be paid to and collected by the commissioner as
follows:
(a) The fee for filing with the commissioner an application by an
uninsured foreign (other state) bank for approval to establish a
facility is two hundred fifty dollars ($250).
(b) The fee for filing with the commissioner an application by an
uninsured foreign (other state) bank that is licensed pursuant to
Article 4 (commencing with Section 3860) to maintain a facility for
approval to relocate or to close the facility is one hundred dollars
($100).
(c) The fee for issuing a license pursuant to Article 4
(commencing with Section 3860) is twenty-five dollars ($25).
(d) Each foreign (other state) state bank that on June 1 of any
year maintains one or more California branch offices shall pay, on or
before the following July 1, a fee of one thousand dollars ($1,000)
per California branch office. However, the minimum fee paid by a
foreign (other state) state bank under this subdivision shall be not
less than three thousand dollars ($3,000) and the maximum fee shall
be not more than fifty thousand dollars ($50,000).
(e) Each foreign (other state) bank that on June 1 of any year
maintains a facility but no California branch office shall pay, on or
before the following July 1, a fee of two hundred fifty dollars
($250) for each facility.
(f) If the commissioner makes an examination in connection with a
pending application, as described in subdivision (a) or (b), the
applicant shall pay a fee for the examination of seventy-five dollars
($75) per hour for each examiner engaged in the examination plus, if
in the opinion of the commissioner it is necessary for any examiner
engaged in the examination to travel outside this state, the travel
expenses of the examiner.
(g) If the commissioner makes an examination of a foreign (other
state) state bank that maintains a California branch office, the bank
shall pay a fee for the examination of seventy-five dollars ($75)
per hour for each examiner engaged in the examination plus, if in the
opinion of the commissioner it is necessary for any examiner engaged
in the examination to travel outside this state, the travel expenses
of the examiner.
(h) If the commissioner makes an examination of a facility of an
uninsured foreign (other state) bank licensed under Article 4
(commencing with Section 3860), the bank shall pay a fee for the
examination of seventy-five dollars ($75) per hour for each examiner
engaged in the examination plus, if in the opinion of the
commissioner it is necessary for any examiner engaged in the
examination to travel outside this state, the travel expenses of the
examiner.
(i) If the commissioner makes an examination of a facility of an
insured foreign (other state) bank that does not maintain a
California branch office, the bank shall pay a fee for the
examination of seventy-five dollars ($75) per hour for each examiner
engaged in the examination plus, if in the opinion of the
commissioner it is necessary for any examiner engaged in the
examination to travel outside this state, the travel expenses of the
examiner.
SEC. 107. Section 14401 of the Financial Code is amended to read:
14401. A credit union may borrow money from any source in an
aggregate amount not to exceed 50 percent of the paid-in and
unimpaired capital and surplus of the credit union. Loans from the
National Credit Union Central Liquidity Facility (12 U.S.C. Sec. 1795
et seq.) shall not be included in computing the aggregate borrowings
of a credit union. For the purposes of this division, "certificate
for funds" means borrowed money.
SEC. 108. Section 50122 of the Financial Code is amended to read:
50122. (a) The application for a residential mortgage lender
license shall be in writing, executed under penalty of perjury, and
verified on a form prescribed by the commissioner. If an applicant
proposes to engage in business as a residential mortgage loan
servicer as well as a residential mortgage lender, this information
shall be set forth in the application. The commissioner may issue a
license under this chapter to engage in business as a residential
mortgage lender or to engage in business as a residential mortgage
lender and residential mortgage loan servicer. A person filing an
application under this chapter to engage in business as a residential
mortgage lender and a residential mortgage loan servicer is not
required to file an application under Chapter 3 (commencing with
Section 50130).
(b) The application shall contain the name and complete business
and residential address or addresses of the applicant. If the
applicant is a partnership, association, corporation, or other
entity, the application shall contain the names and complete business
and residential addresses of each member, director, and principal
officer. The application also shall include a description of the
activities of the applicant in the detail and for the periods that
the commissioner may require, including all of the following:
(1) A statement of financial solvency, noting the net worth
requirements and supported by an audited financial statement prepared
by an independent certified public accountant, and access to the
supporting credit information as required by this division.
(2) A statement that the applicant or its members, directors, or
principals, as appropriate, are at least 18 years of age.
(3) Information as to the character, fitness, financial and
business responsibility, background, experience, and criminal
convictions of any of the following:
(A) Any person that owns or controls, directly or indirectly, 10
percent or more of any class of stock of the applicant.
(B) Any person that controls, directly or indirectly, the election
of 25 percent or more of the members of the board of directors of an
applicant.
(C) Any person or entity that significantly influences or controls
the management of the applicant.
(4) A description of any disciplinary action filed under any other
license through which the person conducts its business.
(5) A description of any adverse judgments entered in court
actions filed by borrowers based upon allegations of fraud,
misrepresentation, or dishonesty in the conduct of the person's
business.
(6) A copy of the fidelity bond currently in effect.
(7) Other information as required by rule of the commissioner.
SEC. 109. Section 206 of the Fish and Game Code is amended to
read:
206. (a) In addition to, or in conjunction with, other regular or
special meetings, the commission shall, at least every three years,
hold meetings in the first 10 days of August, October, November, and
December for the purpose of considering and adopting revisions to
regulations relating to fish, amphibians, and reptiles. The
commission shall alternate the locations of the August and December
meetings between Los Angeles or Long Beach and Sacramento, and the
October and November meetings between San Diego and Redding or Red
Bluff.
(b) At the August meeting, the commission shall receive
recommendations for regulations from its own members and staff, the
department, other public agencies, and the public.
(c) At the October and November meetings, the commission shall
devote time for open public discussion of proposed regulations
presented at the August meeting. The department shall participate in
this discussion by reviewing and presenting its findings regarding
each regulation proposed by the public and by responding to
objections raised pertaining to its proposed regulations. After
considering the public discussion, the commission shall announce,
prior to adjournment of the November meeting, the regulations it
intends to add, amend, or repeal relating to fish, amphibians, and
reptiles.
(d) At the December meeting, the commission may choose to hear
additional public discussion regarding the regulations it intends to
adopt. At, or within 20 days after, the meeting, the commission
shall add, amend, or repeal regulations relating to any
recommendation received at the August meeting regarding fish,
amphibians, and reptiles it deems necessary to preserve, properly
utilize, and maintain each species or subspecies.
(e) Within 45 days after adoption, the department shall publish
and distribute regulations adopted pursuant to this section.
SEC. 110. Section 1570 of the Fish and Game Code is amended to
read:
1570. In establishing the Shared Habitat Alliance for
Recreational Enhancement ("SHARE") program, it is the intent of the
Legislature to encourage private landowners to voluntarily make their
land available to the public for wildlife-dependent recreational
activities. The Legislature further encourages private landowners to
use any funds received from the SHARE program for wildlife
conservation purposes on their property. The SHARE program shall be
a collaborative effort by all participants to facilitate
wildlife-dependent recreational activities on private land at minimal
expense to the state. The Legislature declares that interested
nongovernmental organizations are the key to developing, planning,
and implementing the SHARE program.
SEC. 111. Section 1572 of the Fish and Game Code is amended to
read:
1572. (a) The department, in partnership with nonprofit
conservation groups and other interested nongovernmental
organizations that seek to increase and enhance wildlife-dependent
recreational opportunities, shall work cooperatively to plan and
develop a program to facilitate public access to private lands for
wildlife-dependent recreational activities.
(b) Once the terms of the program have been established and
approved by the partnership, the commission shall verify that
sufficient demonstration of private landowner and program participant
interest has been shown to support the program. The Department of
Finance shall verify that sufficient funds exist in the SHARE Account
to start the program. Upon that verification, in order to
facilitate the implementation of the program, the commission shall
adopt regulations and fees for the management and control of
wildlife-dependent recreational activities on land that is subject to
this article.
(c) The SHARE Account is hereby established in the Fish and Game
Preservation Fund. Money deposited in the SHARE Account from the
sources cited in subdivision (d) shall only be used for the purposes
set forth in this article and to repay the General Fund or the Fish
and Game Preservation Fund, as appropriate, for any expenses incurred
by the department, commission, or the Department of Finance in
establishing the SHARE program.
(d) No General Fund moneys shall be used for the program. The
department may impose user fees or apply for grants, federal funds,
or other contributions from nonstate sources to fund the program.
Funds may also be used for wildlife conservation purposes on lands
subject to an agreement under the program. Notwithstanding Section
13220, no moneys shall be available for the program unless the
Legislature appropriates moneys to the department therefor.
(e) The department shall maintain data on the types of
wildlife-dependent recreational activities preferred by users.
SEC. 112. Section 1613 of the Fish and Game Code is amended to
read:
1613. If, after receiving a notification, but before the
department executes a final agreement, the director of the department
informs the entity, in writing, that the activity described in the
notification, or any activity or conduct by the entity directly
related thereto, violates any provision of this code or the
regulations that implement the code, the department may suspend
processing the notification, and subparagraph (D) of paragraph (4) of
subdivision (a) of Section 1602 and the timelines specified in
Section 1603 do not apply. This section ceases to apply if any of
the following occurs:
(a) The department determines that the violation has been
remedied.
(b) Legal action to prosecute the violation is not filed within
the applicable statute of limitations.
(c) Legal action to prosecute the violation has been terminated.
SEC. 113. Section 7149.2 of the Fish and Game Code is amended to
read:
7149.2. (a) In addition to Sections 714, 7149, and 7149.05, the
department shall issue a lifetime sport fishing license under this
section. A lifetime sport fishing license authorizes the taking of
fish, amphibians, or reptiles anywhere in this state in accordance
with the law for purposes other than profit for the life of the
person to whom issued unless revoked for a violation of this code or
regulations adopted under this code. A lifetime sport fishing
license is not transferable. A lifetime sport fishing license does
not include any special license tags, license stamps, or fees.
(b) A lifetime sport fishing license may be issued to residents of
this state, as follows:
(1) To a person 62 years of age or over, upon payment of a base
fee of three hundred sixty-five dollars ($365).
(2) To a person 40 years of age or over and less than 62 years of
age, upon payment of a base fee of five hundred forty dollars ($540).
(3) To a person 10 years of age or over and less than 40 years of
age upon payment of a base fee of six hundred dollars ($600).
(4) To a person less than 10 years of age upon payment of a base
fee of three hundred sixty-five dollars ($365).
(c) Nothing in this section requires a person less than 16 years
of age to obtain a license to take fish, amphibians, or reptiles for
purposes other than profit.
(d) Nothing in this section exempts a license applicant from
meeting other qualifications or requirements otherwise established by
law for the privilege of sport fishing.
(e) Upon payment of a base fee of two hundred forty-five dollars
($245), a person holding a lifetime sport fishing license or lifetime
sportsman's license shall be entitled annually to the privileges
afforded to a person holding a second-rod stamp or validation issued
pursuant to Section 7149.4 or 7149.45, a sport fishing ocean
enhancement stamp or validation issued pursuant to paragraph (1) of
subdivision (a) of Section 6596 or 6596.1, one steelhead trout report
restoration card issued pursuant to Section 7380, a Bay-Delta sport
fishing enhancement stamp or validation issued pursuant to Section
7360 or 7360.1, and one salmon punchcard issued pursuant to
regulations adopted by the commission. Lifetime privileges issued
pursuant to this subdivision are not transferable.
(f) The base fees specified in this section are applicable
commencing January 1, 2004, and shall be adjusted annually thereafter
pursuant to Section 713.
SEC. 114. Section 7361 of the Fish and Game Code is amended to
read:
7361. Fees received by the department pursuant to Section 7360
shall be deposited in a separate account in the Fish and Game
Preservation Fund. The department shall expend the funds in that
account for the long-term, sustainable benefit of the primary
Bay-Delta sport fisheries, including, but not limited to, striped
bass, sturgeon, black bass, halibut, salmon, surf perch, steelhead
trout, and American shad. Funds shall be expended to benefit sport
fish populations, sport fishing opportunities, and anglers within the
geographic parameters established in Section 7360, and consistent
with state and federal Endangered Species Act requirements and
applicable commission policies. It is the intent of the Legislature
that these funds be used to augment, not replace, funding that would
otherwise be allocated to Bay-Delta sport fisheries from the sale of
fishing licenses, the California Bay-Delta Authority, or other
federal, state, or local funding sources.
SEC. 115. Section 7362 of the Fish and Game Code is amended to
read:
7362. (a) The director shall appoint a Bay-Delta Sport Fishing
Enhancement Stamp Fund Advisory Committee, consisting of nine
members. The committee members shall be selected from names of
persons submitted by anglers and associations representing Bay-Delta
anglers of this state and shall serve at the discretion of the
director for terms of not more than four years. The director shall
appoint persons to the committee who possess experience in subjects
with specific value to the committee and shall attempt to balance the
perspective of different anglers.
(b) The advisory committee shall recommend to the department
projects and budgets for the expenditure of revenue received pursuant
to Section 7360. The department shall give full consideration to
the committee's recommendations.
(c) The department shall submit to the committee, at least
annually, an accounting of funds derived from the Bay-Delta Sport
Fishing Enhancement Stamps and validations, including the number of
stamps and validations sold, funds generated and expended, and the
status of programs funded pursuant to this article. In addition, the
department shall report, at least annually, to the committee on the
status of projects undertaken with funds from that stamp or
validation, including reporting the department's reasoning in cases
where committee recommendations are not followed.
SEC. 116. Section 12011 of the Fish and Game Code is amended to
read:
12011. (a) In addition to the penalty provided in paragraph (4)
of subdivision (b) of Section 12002, any person convicted of a
violation of subdivision (a) of Section 5650 is subject to an
additional fine of all of the following:
(1) Not more than ten dollars ($10) for each gallon or pound of
material discharged. The amount of the fine shall be reduced for
every gallon or pound of the illegally discharged material that is
recovered and properly disposed of by the responsible party.
(2) An amount equal to the reasonable costs incurred by the state
or local agency for cleanup and abatement and to fully mitigate all
actual damages to fish, plant, bird, or animal life and habitat.
(3) Where the state or local agency is required to undertake
cleanup or remedial action because the responsible person refuses or
is unable to fully clean up the discharge, an amount equal to the
reasonable costs incurred by the state or local agency, in addition
to the amount of funds, if any, expended by the responsible person,
in cleaning up the illegally discharged material or abating its
effects, or both cleaning up and abating those effects.
(b) Notwithstanding the jurisdiction of the department over
illegal discharges and pollution as provided in Section 5650, the
fines specified in this section do not apply to discharges in
compliance with a national pollution discharge elimination system
permit or a state or regional board waste discharge permit.
SEC. 117. Section 6047.4 of the Food and Agricultural Code is
amended to read:
6047.4. (a) The powers of the board shall be the following:
(1) Submit recommendations to the secretary on, but not limited
to, the following:
(A) Selection of officers.
(B) Terms of office for board members.
(C) Annual assessment rate.
(D) Annual budget.
(E) Expenditures authorized under Section 6047.5.
(2) Receive money from the assessment and other sources.
(3) Adopt, amend, and rescind all proper and necessary bylaws and
procedures.
(4) Coordinate its activities with the secretary's science
advisory board and agricultural/governmental advisory task force.
(b) A majority of the members of the board shall constitute a
quorum of the board. The vote of a majority of the members present
at a meeting at which there is a quorum constitutes an act of the
board, except for actions taken pursuant to subdivision (a) of
Section 6047.7, which shall require a majority of the vote of the
board. The board may continue to transact business at a meeting
where a quorum is initially present, notwithstanding the withdrawal
of members, provided any action is approved by the requisite majority
of the required quorum.
(c) As authorized by the board, members of the board may receive
per diem and mileage in accordance with the rules of the Department
of Personnel Administration for attendance at meetings and other
approved board activities.
SEC. 118. Section 6047.82 of the Food and Agricultural Code is
amended to read:
6047.82. (a) From and after the filing for record of the order of
the board of supervisors declaring the district organized, and
certification from the county clerk that the grower vote upheld the
creation of the district, pursuant to Sections 6047.76 and 6047.77,
and the appointment and qualification of its first board of
directors, the organization of the district is complete. The
district shall operate for a period of five years from the date of
its organization, and shall cease to exist after five years unless
the district is reauthorized by the board of supervisors.
(b) The board of directors shall hold a public hearing six months
prior to termination of its initial organization or last
reauthorization to determine whether the conditions of the
glassy-winged sharpshooter or Pierce's disease warrant the
reauthorization of the district for an additional five years.
(c) The notice of hearing shall state the name of the district and
that consideration is being given to reauthorizing the district for
an additional five years, the boundaries of the district, and the
time and place for the hearing. Notice of the hearing shall be given
as provided in Sections 6047.71 and 6047.72. The board of directors
shall submit the record of the hearing and its recommendation to the
board of supervisors within 90 days of the hearing. The board of
supervisors shall approve or reject the recommendation. If it rejects
the recommendation, the board of supervisors shall return the report
accompanied by its reasons for the rejection to the board of
directors within 30 days of receipt. The board of directors may
thereafter address the reasons for rejection by the board of
supervisors and submit an amended report and new recommendations for
reauthorization for approval or rejection by the board of
supervisors, unless the district has ceased to exist pursuant to
subdivision (a).
(d) If the board of supervisors approves the continuation of the
district, the board shall, by an order entered in its minutes,
declare the district duly extended subject to a majority vote of
table grape growers in the district. The grower vote shall be held
pursuant to Section 6047.77.
SEC. 119. Section 27680 of the Food and Agricultural Code is
amended to read:
27680. If the grade determination and size determination required
by this chapter are performed at a location outside of this state,
the records relating to eggs of any person registered under this
chapter at that location shall be subject to inspection by the
department as the department considers necessary. The department may
contract with another agency of state government or with a state
department of agriculture or other similar agency where the
out-of-state registrant is domiciled to conduct the inspection.
SEC. 120. Section 27681 of the Food and Agricultural Code is
amended to read:
27681. A registrant whose out-of-state location is inspected
shall reimburse the department for actual and necessary expenses
incurred during the inspection. If an out-of-state registrant fails
to pay the expenses before the 11th day on which the registrant
received an invoice from the department, the department may do any of
the following:
(a) Automatically cancel the person's registration.
(b) Deny a registration to any person who is connected with a
person whose registration is canceled because of a violation of this
section.
(c) Issue an order to stop the sale of all eggs shipped into
California from the registrant.
SEC. 121. Section 27686 of the Food and Agricultural Code is
amended to read:
27686. All shipped eggs shall be transported under refrigeration
in compliance with California statutes and regulations.
SEC. 122. Section 27690 of the Food and Agricultural Code is
amended to read:
27690. All brokers registered with California shall itemize in
their reports a true and complete list of all eggs brokered into and
within California. This list shall include the name and address of
all persons from whom eggs were purchased, to whom they were sold,
and the amount of eggs involved in each transaction. Furthermore,
the broker shall indicate whether the eggs involved in the
transaction were graded or ungraded.
SEC. 123. Section 30801 of the Food and Agricultural Code is
amended to read:
30801. (a) A board of supervisors may provide for the issuance of
serially numbered metallic dog licenses pursuant to this section.
The dog licenses shall be:
(1) Stamped with the name of the county and the year of issue.
(2) (A) Unless the board of supervisors designates the animal
control department to issue the licenses, issued by the county clerk
to owners of dogs who make application.
(B) The board of supervisors or animal control department may
authorize veterinarians to issue the licenses to owners of dogs who
make application.
(b) The licenses shall be issued for a period not to exceed two
years.
(c) In addition to the authority provided in subdivisions (a) and
(b), a license may be issued, as provided by this section, by a board
of supervisors for a period not to exceed three years for dogs that
have attained the age of 12 months, or older, and who have been
vaccinated against rabies. The person to whom the license is to be
issued pursuant to this subdivision may choose a license period as
established by the board of supervisors of up to one, two, or three
years. However, when issuing a license pursuant to this subdivision,
the license period shall not extend beyond the remaining period of
validity for the current rabies vaccination.
SEC. 124. Section 52489 of the Food and Agricultural Code is
amended to read:
52489. It is unlawful for any person to violate the provisions of
the United States Plant Variety Protection Act contained in Part J
(commencing with Section 2531), Part K (commencing with Section
2541), or Part L (commencing with Section 2561) of Subchapter III of
Chapter 57 of Title 7 of the United States Code, as enacted.
SEC. 125. Section 65520 of the Food and Agricultural Code is
amended to read:
65520. As used in this chapter, the words in the following
sections have the following meanings set forth hereafter unless
otherwise apparent from the context.
SEC. 126. Section 66572 of the Food and Agricultural Code is
amended to read:
66572. The commission or the director, in preparing a list of
handlers to be used pursuant to this chapter, may omit from the list
any person who functions as a handler, but who handles less than
250,000 pounds of iceberg lettuce during a marketing season. Any
person so omitted from the list is not subject to this chapter,
including the payment of any assessments, and is not qualified as a
handler under this chapter. Any person omitted from a list pursuant
to this section may be included on any subsequent list if found
qualified as a handler at the time of preparing the list.
SEC. 127. Section 66663 of the Food and Agricultural Code is
amended to read:
66663. After the effective date of suspension of the operation of
the provisions of this chapter and of the commission, as provided in
Section 66662, the operations of the commission shall be wound up
and any moneys remaining held by the commission, collected by
assessment and not required to defray the expenses of winding up and
terminating operations of the commission, shall be returned upon a
pro rata basis to all handlers from whom assessments were collected
in the immediately preceding current fiscal year. However, if the
commission finds that the amounts so returnable are so de minimis as
to make impractical the computation and remitting of such pro rata
refund to such handlers, any moneys remaining after payment of all
expenses of winding up and terminating operations shall be withdrawn
from the approved depository and paid into the State Treasury as
unclaimed trust moneys.
SEC. 128. Section 74028 of the Food and Agricultural Code is
amended to read:
74028. "Producer districts" shall consist of the following:
(a) District 1 consists of Lake, Solano, Mendocino, Sonoma, Marin,
and Napa Counties.
(b) District 2 consists of the City and County of San Francisco,
and Santa Barbara, San Luis Obispo, Ventura, Monterey, San Benito,
Santa Clara, Santa Cruz, Alameda, San Mateo, and Contra Costa
Counties.
(c) District 3 consists of Butte, Colusa, Glenn, Sacramento,
Shasta, Tehama, Yolo, Yuba, Trinity, Siskiyou, Modoc, Lassen, Plumas,
Sierra, Sutter, Humboldt, and Del Norte Counties, and that portion
of San Joaquin County north of State Highway 4.
(d) District 4 consists of Merced, Stanislaus, Mariposa,
Calaveras, Amador, El Dorado, Placer, Nevada, and Tuolumne Counties,
and that portion of San Joaquin County south of State Highway 4.
(e) District 5 consists of Fresno, Alpine, Mono, Inyo, and Madera
Counties, and that portion of Kings and Tulare Counties north of
Nevada Avenue (Avenue 192).
(f) District 6 consists of Kern County and that portion of Kings
and Tulare Counties south of Nevada Avenue (Avenue 192).
(g) District 7 consists of Los Angeles, Orange, Riverside, San
Bernardino, Imperial, and San Diego Counties.
SEC. 129. Section 78302 of the Food and Agricultural Code is
amended to read:
78302. (a) Upon a finding by a two-thirds vote of the membership
of the commission that the operation of this chapter has not tended
to effectuate its declared purposes, the commission may recommend to
the secretary that the operation of this chapter be suspended.
However, any suspension shall not become effective until the
expiration of the current marketing year.
(b) The secretary shall, upon receipt of the recommendation, or
may, after a public hearing to review a petition filed with the
secretary requesting a suspension signed by not less than 20 percent
of the producers by number who produced not less than 20 percent of
the volume of asparagus in the immediately preceding marketing year,
hold a referendum among the producers to determine if the operations
of the commission shall be suspended. However, the secretary shall
not hold a referendum as a result of the petition unless the
petitioner shows, by a preponderance of evidence, that the operation
of this chapter has not tended to effectuate its declared purposes.
(c) The secretary shall establish a referendum period that shall
not be less than 10 days nor more than 60 days in duration. The
secretary may prescribe additional procedures necessary to conduct
the referendum. At the close of the established referendum period,
the secretary shall tabulate the ballots filed during the period.
The secretary shall suspend the operation of this chapter if the
secretary finds that at least 40 percent of the total number of
producers from the list established by the secretary have
participated in the referendum and either one of the following has
occurred:
(1) Sixty-five percent or more of the producers who voted in the
referendum voted in favor of suspension, and the producers so voting
marketed a majority of the total quantity of asparagus in the
preceding marketing year by all of the producers who voted in the
referendum.
(2) A majority of the producers who voted in the referendum voted
in favor of suspension, and the producers so voting marketed 65
percent or more of the total quantity of asparagus in the preceding
marketing year by all of the producers who voted in the referendum.
SEC. 130. Section 78690 of the Food and Agricultural Code is
amended to read:
78690. (a) Within 15 days of the effective date of this chapter,
the secretary shall establish a list of producers and handlers
eligible to vote on implementation of this chapter. In establishing
the list, the secretary may require that producers and handlers
submit the names and mailing addresses of all producers and handlers.
The secretary also may require that the information provided
include the quantity of tomatoes produced by each producer and the
quantity of tomatoes handled by each handler, or, in the alternative,
may establish procedures for receiving the information at the time
of the referendum vote specified in Section 78691. The request for
the information shall be in writing and shall be filed within 10 days
following receipt of the request.
(b) Any producer whose name does not appear on the appropriate
list may have his or her name placed on the list by filing with the
secretary a signed statement, identifying himself or herself as a
producer or handler. Failure to be on the list does not exempt the
person from paying assessments, and does not invalidate any industry
votes conducted pursuant to this article.
(c) Proponents and opponents of the commission may contact
producers on the lists in a form and manner prescribed by the
secretary if all expenses associated with those contacts are paid in
advance.
SEC. 131. Section 912.8 of the Government Code is amended to read:
912.8. Except as provided in Section 912.7, in the case of claims
against the state, the board shall act on claims in accordance with
that procedure as the board, by rule, may prescribe. It may hear
evidence for and against the claims and, with the approval of the
Governor, report to the Legislature those facts and recommendations
concerning the claims as it deems proper. In making recommendations,
the board may state and use any official or personal knowledge that
any member may have regarding any claim. The board may authorize any
employee of the state to perform the functions of the board under
this part as are prescribed by the board.
SEC. 132. Section 1091.4 of the Government Code is amended to
read:
1091.4. (a) As used in Section 1091, "remote interest" also
includes a person who has a financial interest in a contract, if all
of the following conditions are met:
(1) The agency of which the person is a board member is a special
district serving a population of less than 5,000 that is a landowner
voter district, as defined in Section 56050, that does not distribute
water for any domestic use.
(2) The contract is for either of the following:
(A) The maintenance or repair of the district's property or
facilities provided that the need for maintenance or repair services
has been widely advertised. The contract will result in materially
less expense to the district than the expense that would have
resulted under reasonably available alternatives and review of those
alternatives is documented in records available for public
inspection.
(B) The acquisition of property that the governing board of the
district has determined is necessary for the district to carry out
its functions at a price not exceeding the value of the property, as
determined in a record available for public inspection by an
appraiser who is a member of a recognized organization of appraisers.
(3) The person did not participate in the formulation of the
contract on behalf of the district.
(4) At a public meeting, the governing body of the district, after
review of written documentation, determines that the property
acquisition or maintenance and repair services cannot otherwise be
obtained at a reasonable price and that the contract is in the best
interests of the district, and adopts a resolution stating why the
contract is necessary and in the best interests of the district.
(b) If a party to any proceeding challenges any fact or matter
required by paragraph (2), (3), or (4) of subdivision (a) to qualify
as a remote interest under subdivision (a), the district shall bear
the burden of proving this fact or matter.
SEC. 133. Section 6215 of the Government Code, as added by Chapter
1637 of the Statutes of 1982, is amended and renumbered to read:
6219. (a) Each department, commission, office, or other
administrative agency of state government shall write each document
that it produces in plain, straightforward language, avoiding
technical terms as much as possible, and using a coherent and easily
readable style.
(b) As used in this section, a "state agency document" means any
contract, form, license, announcement, regulation, manual,
memorandum, or any other written communication that is necessary to
carry out the agency's responsibilities under the law.
SEC. 134. Section 6254 of the Government Code is amended to read:
6254. Except as provided in Sections 6254.7 and 6254.13, nothing
in this chapter shall be construed to require disclosure of records
that are any of the following:
(a) Preliminary drafts, notes, or interagency or intra-agency
memoranda that are not retained by the public agency in the ordinary
course of business, if the public interest in withholding those
records clearly outweighs the public interest in disclosure.
(b) Records pertaining to pending litigation to which the public
agency is a party, or to claims made pursuant to Division 3.6
(commencing with Section 810), until the pending litigation or claim
has been finally adjudicated or otherwise settled.
(c) Personnel, medical, or similar files, the disclosure of which
would constitute an unwarranted invasion of personal privacy.
(d) Contained in or related to any of the following:
(1) Applications filed with any state agency responsible for the
regulation or supervision of the issuance of securities or of
financial institutions, including, but not limited to, banks, savings
and loan associations, industrial loan companies, credit unions, and
insurance companies.
(2) Examination, operating, or condition reports prepared by, on
behalf of, or for the use of, any state agency referred to in
paragraph (1).
(3) Preliminary drafts, notes, or interagency or intra-agency
communications prepared by, on behalf of, or for the use of, any
state agency referred to in paragraph (1).
(4) Information received in confidence by any state agency
referred to in paragraph (1).
(e) Geological and geophysical data, plant production data, and
similar information relating to utility systems development, or
market or crop reports, that are obtained in confidence from any
person.
(f) Records of complaints to, investigations conducted by, or
records of intelligence information or security procedures of, the
office of the Attorney General and the Department of Justice, and any
state or local police agency, or any investigatory or security files
compiled by any other state or local police agency or any
investigatory or security files compiled by any other state or local
agency for correctional, law enforcement, or licensing purposes.
However, state and local law enforcement agencies shall disclose the
names and addresses of persons involved in, or witnesses other than
confidential informants to, the incident, the description of any
property involved, the date, time, and location of the incident, all
diagrams, statements of the parties involved in the incident, the
statements of all witnesses, other than confidential informants, to
the victims of an incident, or an authorized representative thereof,
an insurance carrier against which a claim has been or might be made,
and any person suffering bodily injury or property damage or loss,
as the result of the incident caused by arson, burglary, fire,
explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or
a crime as defined by subdivision (b) of Section 13951, unless the
disclosure would endanger the safety of a witness or other person
involved in the investigation, or unless disclosure would endanger
the successful completion of the investigation or a related
investigation. However, nothing in this division shall require the
disclosure of that portion of those investigative files that reflects
the analysis or conclusions of the investigating officer.
Customer lists provided to a state or local police agency by an
alarm or security company at the request of the agency shall be
construed to be records subject to this subdivision.
Notwithstanding any other provision of this subdivision, state and
local law enforcement agencies shall make public the following
information, except to the extent that disclosure of a particular
item of information would endanger the safety of a person involved in
an investigation or would endanger the successful completion of the
investigation or a related investigation:
(1) The full name and occupation of every individual arrested by
the agency, the individual's physical description including date of
birth, color of eyes and hair, sex, height and weight, the time and
date of arrest, the time and date of booking, the location of the
arrest, the factual circumstances surrounding the arrest, the amount
of bail set, the time and manner of release or the location where the
individual is currently being held, and all charges the individual
is being held upon, including any outstanding warrants from other
jurisdictions and parole or probation holds.
(2) Subject to the restrictions imposed by Section 841.5 of the
Penal Code, the time, substance, and location of all complaints or
requests for assistance received by the agency and the time and
nature of the response thereto, including, to the extent the
information regarding crimes alleged or committed or any other
incident investigated is recorded, the time, date, and location of
occurrence, the time and date of the report, the name and age of the
victim, the factual circumstances surrounding the crime or incident,
and a general description of any injuries, property, or weapons
involved. The name of a victim of any crime defined by Section 220,
261, 261.5, 262, 264, 264.1, 273a, 273d, 273.5, 286, 288, 288a, 289,
422.6, 422.7, 422.75, or 646.9 of the Penal Code may be withheld at
the victim's request, or at the request of the victim's parent or
guardian if the victim is a minor. When a person is the victim of
more than one crime, information disclosing that the person is a
victim of a crime defined by Section 220, 261, 261.5, 262, 264,
264.1, 273a, 273d, 286, 288, 288a, 289, 422.6, 422.7, 422.75, or
646.9 of the Penal Code may be deleted at the request of the victim,
or the victim's parent or guardian if the victim is a minor, in
making the report of the crime, or of any crime or incident
accompanying the crime, available to the public in compliance with
the requirements of this paragraph.
(3) Subject to the restrictions of Section 841.5 of the Penal Code
and this subdivision, the current address of every individual
arrested by the agency and the current address of the victim of a
crime, where the requester declares under penalty of perjury that the
request is made for a scholarly, journalistic, political, or
governmental purpose, or that the request is made for investigation
purposes by a licensed private investigator as described in Chapter
11.3 (commencing with Section 7512) of Division 3 of the Business and
Professions Code. However, the address of the victim of any crime
defined by Section 220, 261, 261.5, 262, 264, 264.1, 273a, 273d,
273.5, 286, 288, 288a, 289, 422.6, 422.7, 422.75, or 646.9 of the
Penal Code shall remain confidential. Address information obtained
pursuant to this paragraph shall not be used directly or indirectly
to sell a product or service to any individual or group of
individuals, and the requester shall execute a declaration to that
effect under penalty of perjury.
(g) Test questions, scoring keys, and other examination data used
to administer a licensing examination, examination for employment, or
academic examination, except as provided for in Chapter 3
(commencing with Section 99150) of Part 65 of the Education Code.
(h) The contents of real estate appraisals or engineering or
feasibility estimates and evaluations made for or by the state or
local agency relative to the acquisition of property, or to
prospective public supply and construction contracts, until all of
the property has been acquired or all of the contract agreement
obtained. However, the law of eminent domain shall not be affected
by this provision.
(i) Information required from any taxpayer in connection with the
collection of local taxes that is received in confidence and the
disclosure of the information to other persons would result in unfair
competitive disadvantage to the person supplying the information.
(j) Library circulation records kept for the purpose of
identifying the borrower of items available in libraries, and library
and museum materials made or acquired and presented solely for
reference or exhibition purposes. The exemption in this subdivision
shall not apply to records of fines imposed on the borrowers.
(k) Records, the disclosure of which is exempted or prohibited
pursuant to federal or state law, including, but not limited to,
provisions of the Evidence Code relating to privilege.
(l) Correspondence of and to the Governor or employees of the
Governor's office or in the custody of or maintained by the Governor'
s Legal Affairs Secretary. However, public records shall not be
transferred to the custody of the Governor's Legal Affairs Secretary
to evade the disclosure provisions of this chapter.
(m) In the custody of or maintained by the Legislative Counsel,
except those records in the public database maintained by the
Legislative Counsel that are described in Section 10248.
(n)
Statements of personal worth or personal financial data required by a
licensing agency and filed by an applicant with the licensing agency
to establish his or her personal qualification for the license,
certificate, or permit applied for.
(o) Financial data contained in applications for financing under
Division 27 (commencing with Section 44500) of the Health and Safety
Code, where an authorized officer of the California Pollution Control
Financing Authority determines that disclosure of the financial data
would be competitively injurious to the applicant and the data is
required in order to obtain guarantees from the United States Small
Business Administration. The California Pollution Control Financing
Authority shall adopt rules for review of individual requests for
confidentiality under this section and for making available to the
public those portions of an application that are subject to
disclosure under this chapter.
(p) Records of state agencies related to activities governed by
Chapter 10.3 (commencing with Section 3512), Chapter 10.5 (commencing
with Section 3525), and Chapter 12 (commencing with Section 3560) of
Division 4 of Title 1, that reveal a state agency's deliberative
processes, impressions, evaluations, opinions, recommendations,
meeting minutes, research, work products, theories, or strategy, or
that provide instruction, advice, or training to employees who do not
have full collective bargaining and representation rights under
these chapters. Nothing in this subdivision shall be construed to
limit the disclosure duties of a state agency with respect to any
other records relating to the activities governed by the employee
relations acts referred to in this subdivision.
(q) Records of state agencies related to activities governed by
Article 2.6 (commencing with Section 14081), Article 2.8 (commencing
with Section 14087.5), and Article 2.91 (commencing with Section
14089) of Chapter 7 of Part 3 of Division 9 of the Welfare and
Institutions Code, that reveal the special negotiator's deliberative
processes, discussions, communications, or any other portion of the
negotiations with providers of health care services, impressions,
opinions, recommendations, meeting minutes, research, work product,
theories, or strategy, or that provide instruction, advice, or
training to employees.
Except for the portion of a contract containing the rates of
payment, contracts for inpatient services entered into pursuant to
these articles, on or after April 1, 1984, shall be open to
inspection one year after they are fully executed. If a contract for
inpatient services that is entered into prior to April 1, 1984, is
amended on or after April 1, 1984, the amendment, except for any
portion containing the rates of payment, shall be open to inspection
one year after it is fully executed. If the California Medical
Assistance Commission enters into contracts with health care
providers for other than inpatient hospital services, those contracts
shall be open to inspection one year after they are fully executed.
Three years after a contract or amendment is open to inspection
under this subdivision, the portion of the contract or amendment
containing the rates of payment shall be open to inspection.
Notwithstanding any other provision of law, the entire contract or
amendment shall be open to inspection by the Joint Legislative Audit
Committee. The committee shall maintain the confidentiality of the
contracts and amendments until the time a contract or amendment is
fully open to inspection by the public.
(r) Records of Native American graves, cemeteries, and sacred
places maintained by the Native American Heritage Commission.
(s) A final accreditation report of the Joint Commission on
Accreditation of Hospitals that has been transmitted to the State
Department of Health Services pursuant to subdivision (b) of Section
1282 of the Health and Safety Code.
(t) Records of a local hospital district, formed pursuant to
Division 23 (commencing with Section 32000) of the Health and Safety
Code, or the records of a municipal hospital, formed pursuant to
Article 7 (commencing with Section 37600) or Article 8 (commencing
with Section 37650) of Chapter 5 of Division 3 of Title 4 of this
code, that relate to any contract with an insurer or nonprofit
hospital service plan for inpatient or outpatient services for
alternative rates pursuant to Section 10133 or 11512 of the Insurance
Code. However, the record shall be open to inspection within one
year after the contract is fully executed.
(u) (1) Information contained in applications for licenses to
carry firearms issued pursuant to Section 12050 of the Penal Code by
the sheriff of a county or the chief or other head of a municipal
police department that indicates when or where the applicant is
vulnerable to attack or that concerns the applicant's medical or
psychological history or that of members of his or her family.
(2) The home address and telephone number of peace officers,
judges, court commissioners, and magistrates that are set forth in
applications for licenses to carry firearms issued pursuant to
Section 12050 of the Penal Code by the sheriff of a county or the
chief or other head of a municipal police department.
(3) The home address and telephone number of peace officers,
judges, court commissioners, and magistrates that are set forth in
licenses to carry firearms issued pursuant to Section 12050 of the
Penal Code by the sheriff of a county or the chief or other head of a
municipal police department.
(v) (1) Records of the Major Risk Medical Insurance Program
related to activities governed by Part 6.3 (commencing with Section
12695) and Part 6.5 (commencing with Section 12700) of Division 2 of
the Insurance Code, and that reveal the deliberative processes,
discussions, communications, or any other portion of the negotiations
with health plans, or the impressions, opinions, recommendations,
meeting minutes, research, work product, theories, or strategy of the
board or its staff, or records that provide instructions, advice, or
training to employees.
(2) (A) Except for the portion of a contract that contains the
rates of payment, contracts for health coverage entered into pursuant
to Part 6.3 (commencing with Section 12695) or Part 6.5 (commencing
with Section 12700) of Division 2 of the Insurance Code, on or after
July 1, 1991, shall be open to inspection one year after they have
been fully executed.
(B) In the event that a contract for health coverage that is
entered into prior to July 1, 1991, is amended on or after July 1,
1991, the amendment, except for any portion containing the rates of
payment, shall be open to inspection one year after the amendment has
been fully executed.
(3) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto, until
the contract or amendments to a contract is open to inspection
pursuant to paragraph (3).
(w) (1) Records of the Major Risk Medical Insurance Program
related to activities governed by Chapter 14 (commencing with Section
10700) of Part 2 of Division 2 of the Insurance Code, and that
reveal the deliberative processes, discussions, communications, or
any other portion of the negotiations with health plans, or the
impressions, opinions, recommendations, meeting minutes, research,
work product, theories, or strategy of the board or its staff, or
records that provide instructions, advice, or training to employees.
(2) Except for the portion of a contract that contains the rates
of payment, contracts for health coverage entered into pursuant to
Chapter 14 (commencing with Section 10700) of Part 2 of Division 2 of
the Insurance Code, on or after January 1, 1993, shall be open to
inspection one year after they have been fully executed.
(3) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto, until
the contract or amendments to a contract is open to inspection
pursuant to paragraph (2).
(x) Financial data contained in applications for registration, or
registration renewal, as a service contractor filed with the Director
of Consumer Affairs pursuant to Chapter 20 (commencing with Section
9800) of Division 3 of the Business and Professions Code, for the
purpose of establishing the service contractor's net worth, or
financial data regarding the funded accounts held in escrow for
service contracts held in force in this state by a service
contractor.
(y) (1) Records of the Managed Risk Medical Insurance Board
related to activities governed by Part 6.2 (commencing with Section
12693) or Part 6.4 (commencing with Section 12699.50) of Division 2
of the Insurance Code, and that reveal the deliberative processes,
discussions, communications, or any other portion of the negotiations
with health plans, or the impressions, opinions, recommendations,
meeting minutes, research, work product, theories, or strategy of the
board or its staff, or records that provide instructions, advice, or
training to employees.
(2) (A) Except for the portion of a contract that contains the
rates of payment, contracts entered into pursuant to Part 6.2
(commencing with Section 12693) or Part 6.4 (commencing with Section
12699.50) of Division 2 of the Insurance Code, on or after January 1,
1998, shall be open to inspection one year after they have been
fully executed.
(B) In the event that a contract entered into pursuant to Part 6.2
(commencing with Section 12693) or Part 6.4 (commencing with Section
12699.50) of Division 2 of the Insurance Code is amended, the
amendment shall be open to inspection one year after the amendment
has been fully executed.
(3) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto until the
contract or amendments to a contract are open to inspection pursuant
to paragraph (2) or (3).
(5) The exemption from disclosure provided pursuant to this
subdivision for the contracts, deliberative processes, discussions,
communications, negotiations with health plans, impressions,
opinions, recommendations, meeting minutes, research, work product,
theories, or strategy of the board or its staff shall also apply to
the contracts, deliberative processes, discussions, communications,
negotiations with health plans, impressions, opinions,
recommendations, meeting minutes, research, work product, theories,
or strategy of applicants pursuant to Part 6.4 (commencing with
Section 12699.50) of Division 2 of the Insurance Code.
(z) Records obtained pursuant to paragraph (2) of subdivision (c)
of Section 2891.1 of the Public Utilities Code.
(aa) A document prepared by or for a state or local agency that
assesses its vulnerability to terrorist attack or other criminal acts
intended to disrupt the public agency's operations and that is for
distribution or consideration in a closed session.
(bb) (1) Records of the Managed Risk Medical Insurance Board
related to activities governed by Part 8.7 (commencing with Section
2120) of Division 2 of the Labor Code, and that reveal the
deliberative processes, discussions, communications, or any other
portion of the negotiations with entities contracting or seeking to
contract with the board, or the impressions, opinions,
recommendations, meeting minutes, research, work product, theories,
or strategy of the board or its staff, or records that provide
instructions, advice, or training to employees.
(2) (A) Except for the portion of a contract that contains the
rates of payment, contracts entered into pursuant to Part 8.7
(commencing with Section 2120) of Division 2 of the Labor Code on or
after January 1, 2004, shall be open to inspection one year after
they have been fully executed.
(B) In the event that a contract entered into pursuant to Part 8.7
(commencing with Section 2120) of Division 2 of the Labor Code is
amended, the amendment shall be open to inspection one year after the
amendment has been fully executed.
(3) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto until the
contract or amendments to a contract are open to inspection pursuant
to paragraph (2) or (3).
Nothing in this section prevents any agency from opening its
records concerning the administration of the agency to public
inspection, unless disclosure is otherwise prohibited by law.
Nothing in this section prevents any health facility from
disclosing to a certified bargaining agent relevant financing
information pursuant to Section 8 of the National Labor Relations Act
(Section 158 of Subchapter II of Chapter 7 of Title 29 of the United
States Code).
SEC. 135. Section 6254.17 of the Government Code is amended to
read:
6254.17. (a) Nothing in this chapter shall be construed to
require disclosure of records of the California Victim Compensation
and Government Claims Board that relate to a request for assistance
under Article 1 (commencing with Section 13950) of Chapter 5 of Part
4 of Division 3 of Title 2.
(b) This section shall not apply to a disclosure of the following
information, if no information is disclosed that connects the
information to a specific victim, derivative victim, or applicant
under Article 1 (commencing with Section 13950) of Chapter 5 of Part
4 of Division 3 of Title 2:
(1) The amount of money paid to a specific provider of services.
(2) Summary data concerning the types of crimes for which
assistance is provided.
SEC. 136. Section 7072 of the Government Code is amended to read:
7072. For purposes of this chapter, the following definitions
shall apply:
(a) "Agency" means the Department of Housing and Community
Development.
(b) "Date of original designation" means the earlier of the
following:
(1) The date the eligible area receives designation as an
enterprise zone by the agency pursuant to this chapter.
(2) In the case of an enterprise zone deemed designated pursuant
to subdivision (e) of Section 7073, the date the enterprise zone or
program area received original designation by the agency pursuant to
Chapter 12.8 (commencing with Section 7070) or Chapter 12.9
(commencing with Section 7080), as those chapters read prior to
January 1, 1997.
(c) "Eligible area" means any of the following:
(1) An area designated as an enterprise zone pursuant to Chapter
12.8 (commencing with Section 7070), as it read prior to January 1,
1997, or as a targeted economic development area, neighborhood
development area, or program area pursuant to Chapter 12.9
(commencing with Section 7080), as it read prior to January 1, 1997.
(2) A geographic area that, based upon the determination of the
agency, fulfills at least one of the following:
(A) The proposed geographic area meets the Urban Development
Action Grant criteria of the United States Department of Housing and
Urban Development.
(B) The area within the proposed zone has experienced plant
closures within the past two years affecting more than 100 workers.
(C) The city or county has submitted material to the agency for a
finding that the proposed geographic area meets criteria of economic
distress related to those used in determining eligibility under the
Urban Development Action Grant Program and is therefore an eligible
area.
(D) The area within the proposed zone has a history of
gang-related activity, whether or not crimes of violence have been
committed.
(3) A geographic area that meets at least two of the following
criteria:
(A) The census tracts within the proposed zone have an
unemployment rate not less than 3 percentage points above the
statewide average for the most recent calendar year as determined by
the Employment Development Department.
(B) The county of the proposed zone has more than 70 percent of
the children enrolled in public school participating in the federal
free lunch program.
(C) The median household income for a family of four within the
census tracts of the proposed zone does not exceed 80 percent of the
statewide median income for the most recently available calendar
year.
(d) "Enterprise zone" means any area within a city, county, or
city and county that is designated as an enterprise zone by the
agency in accordance with Section 7073.
(e) "Governing body" means a county board of supervisors or a city
council, as appropriate.
(f) "High technology industries" include, but are not limited to,
the computer, biological engineering, electronics, and
telecommunications industries.
(g) "Resident," unless otherwise defined, means a person whose
principal place of residence is within a targeted employment area.
(h) "Targeted employment area" means an area within a city,
county, or city and county that is composed solely of those census
tracts designated by the United States Department of Housing and
Urban Development as having at least 51 percent of its residents of
low- or moderate-income levels, using either the most recent United
States Department of Census data available at the time of the
original enterprise zone application or the most recent census data
available at the time the targeted employment area is designated to
determine that eligibility. The purpose of a "targeted employment
area" is to encourage businesses in an enterprise zone to hire
eligible residents of certain geographic areas within a city, county,
or city and county. A targeted employment area may be, but is not
required to be, the same as all or part of an enterprise zone. A
targeted employment area's boundaries need not be contiguous. A
targeted employment area does not need to encompass each eligible
census tract within a city, county, or city and county. The
governing body of each city, county, or city and county that has
jurisdiction of the enterprise zone shall identify those census
tracts whose residents are in the most need of this employment
targeting. Only those census tracts within the jurisdiction of the
city, county, or city and county that has jurisdiction of the
enterprise zone may be included in a targeted employment area.
At least a part of each eligible census tract within a targeted
employment area shall be within the territorial jurisdiction of the
city, county, or city and county that has jurisdiction for an
enterprise zone. If an eligible census tract encompasses the
territorial jurisdiction of two or more local governmental entities,
all of those entities shall be a party to the designation of a
targeted employment area. However, any one or more of those
entities, by resolution or ordinance, may specify that it shall not
participate in the application as an applicant, but shall agree to
complete all actions stated within the application that apply to its
jurisdiction, if the area is designated.
Each local governmental entity of each city, county, or city and
county that has jurisdiction of an enterprise zone shall approve, by
resolution or ordinance, the boundaries of its targeted employment
area, regardless of whether a census tract within the proposed
targeted employment area is outside the jurisdiction of the local
governmental entity.
SEC. 137. Section 8220 of the Government Code is amended to read:
8220. The Secretary of State may adopt rules and regulations to
carry out the provisions of this chapter.
The regulations shall be adopted in accordance with the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3).
SEC. 138. Section 8592.4 of the Government Code is amended to
read:
8592.4. (a) The committee shall determine which agencies need new
or upgraded communication equipment and shall establish a program
for equipment purchase. In establishing this program, the board
shall recommend the purchase of equipment that will enable state
agencies to commence conforming to accepted industry standards for
interoperability consistent with the public safety digital
communications standards of the American National Standards Institute
and the Telecommunications Information Association.
(b) This section may not be construed to mandate that a state or
local governmental agency affected thereby is required to compromise
its immediate mission or ability to function and carry out its
existing responsibilities.
SEC. 139. Section 8869.84 of the Government Code is amended to
read:
8869.84. (a) The committee shall, as soon as is practicable after
the start of each calendar year, determine and announce the state
ceiling for the calendar year.
(b) The entire state ceiling for each calendar year is hereby
allocated to the committee to further allocate to state and local
agencies as provided in this chapter.
(c) The committee shall prepare application forms and announce
procedures for receipt and review of applications from state and
local agencies desiring to issue private activity bonds.
(d) The committee may at any time, before or after granting any
allocations in any calendar year to any state agencies or local
agencies, announce priorities or reservations of any part of the
state ceiling not theretofore allocated either for certain categories
of bonds or categories of issuers.
(e) The committee may require any issuer making an application to
the committee or MBTCAC for allocation of a portion of the state
ceiling to make a deposit, as determined by the committee, of up to 1
percent of the portion requested. If an allocation is not given,
the deposit shall be returned. If an allocation is given, the
deposit shall be kept, in proportion to the amount of allocation
given, until bonds are issued. Upon that issuance, the deposit shall
be returned to the issuer in an amount equal to the product of (1)
the amount of the deposit retained times (2) the ratio between the
amount of bonds issued divided by the amount of allocation granted.
If no bonds are issued prior to the expiration of the allocation, the
deposit shall be kept, unless the committee determines there is good
cause to return all or part of the deposit. Any portion of a
deposit kept shall be deposited in the fund.
(f) The committee may transfer part of the state ceiling to the
MBTCAC, to be used for qualified mortgage bonds and exempt facility
bonds or for qualified residential rental projects, as those terms
are used in the Internal Revenue Code, together referred to as
"housing bonds," with directions and conditions pursuant to which
MBTCAC may allocate those amounts to issuers of housing bonds at both
the state and local levels. In carrying out these functions, MBTCAC
shall act solely as directed or authorized by the committee. If the
committee makes the transfer to MBTCAC authorized by this
subdivision, the references in Sections 8869.85, 8869.86, 8869.87,
and 8869.88 to the "committee" shall, for purposes of any housing
bonds, be deemed to mean MBTCAC.
(g) (1) The committee may establish the Extra Credit Teacher Home
Purchase Program to provide federal mortgage credit certificates and
reduced interest rate loans funded by mortgage revenue bonds to
eligible teachers, principals, vice principals, assistant principals,
and classified employees who agree to teach or provide
administration or service in a high priority school. Priority for
assistance shall be given to eligible teachers, principals, vice
principals, and assistant principals.
(2) For purposes of this program, the following definitions shall
apply:
(A) "High priority school" means a state K-12 public school that
is ranked in the bottom half of the Academic Performance Index
developed pursuant to subdivision (a) of Section 52052 of the
Education Code. However, priority shall be given to schools that are
ranked in the lowest three deciles.
(B) "Classified employee" means an employee of a school district,
employed in a position not requiring certification qualifications.
(3) The committee may make reservations of a portion of future
calendar year state ceiling limits for up to five future calendar
years for that program. The committee may also make future
allocations of the state ceiling for up to five years for any issuer
under that program. Any future allocation made by the committee
shall constitute an allocation of the state ceiling for a future year
specified by the committee and shall be deemed to have been made on
the first day of the future year so specified. The committee may
condition allocations under the Extra Credit Teacher Home Purchase
Program on any terms and conditions that the committee deems
necessary or appropriate, including, but not limited to, the
execution of a contract between the teacher, principal, vice
principal, assistant principal, or classified employee and the issuer
whereby the teacher, principal, vice principal, assistant principal,
or classified employee agrees to comply with the terms and
conditions of the program. The contract may include, among other
things, an agreement by the teacher, principal, vice principal,
assistant principal, or classified employee to teach or provide
administration or service in a high priority school for a minimum
number of years, and provisions for enforcing the contract that the
committee deems necessary or appropriate.
(4) If a teacher, principal, vice principal, assistant principal,
or classified employee does not fulfill the requirements of a
contract entered into pursuant to paragraph (3), the issuer of the
mortgage credit certificate or mortgage revenue bond may recover as
an assessment from the teacher, principal, vice
principal, assistant principal, or classified
employee a monetary amount equal to the lesser of (A) one-half of the
teacher's, principal's, vice principal's, assistant principal's, or
classified employee's net proceeds from the sale of the related
residence or (B) the amount of monetary benefit conferred on the
teacher, principal, vice principal, assistant principal, or
classified employee as a result of the federal mortgage credit
certificate or reduced interest rate loan funded by a mortgage
revenue bond, offset by the amount of any federal recapture, as
defined by Section 143(m) of the Internal Revenue Code. The
assessment may be secured by a lien against the residence, which
shall decline in amount over the term of the contract as the teacher,
principal, vice principal, assistant principal, or classified
employee fulfills the term of the contract, and which shall be
collected at the time of sale of the residence. Any assessment
collected pursuant to this paragraph shall be used for the issuer's
costs in administering the Extra Credit Teacher Home Purchase
Program. The issuers shall report annually to the committee the
total amount of any assessments collected pursuant to this paragraph
and how those assessments were used by the issuer.
(5) If the committee establishes the Extra Credit Teacher Home
Purchase Program pursuant to this subdivision, the committee shall
report annually to the Legislature the results of the program,
including all of the following:
(A) The amount of state ceiling limits allocated to or reserved
for the program.
(B) The agencies to which state ceiling limits were issued.
(C) The number of loans or mortgage credit certificates issued to
teachers, principals, vice principals, assistant principals, and
classified employees.
(D) The schools or school districts at which recipients of
assistance are employed, aggregated by decile in which the schools
rank on the Academic Performance Index and by the percentage of
uncredentialed teachers employed at the schools.
(6) The committee shall not make any reservations of future
calendar year state ceiling limits or future allocations of the state
ceiling pursuant to this subdivision on or after January 1, 2004,
unless a later enacted statute, that is enacted before January 1,
2004, deletes or extends that date. However, reservations and
allocations made prior to that date shall remain valid.
SEC. 140. Section 8880.325 of the Government Code is amended to
read:
8880.325. The right of any person to a prize shall not be
assignable, except that the payment of any prize may be assigned, in
whole or in part, as provided by Section 8880.326 and this section
under any of the following circumstances:
(a) An assignment executed by the prizewinner on a form approved
by, and filed with, the commission during the prizewinner's lifetime
in accordance with regulations adopted by the commission, to a trust
that by its terms is revocable and that is established by the
prizewinner for the benefit of the prizewinner as a beneficiary and
governed by the laws of the state.
(b) An appropriate judicial order appointing a conservator or a
guardian for the protection of the prizewinner or for adjudicating
rights to, or ownership of, the prize.
(c) An assignment, as collateral, to a person to secure a loan
pursuant to Division 9 (commencing with Section 9101) of the
Commercial Code. The assignment as collateral of the right to
receive payment of a prize shall be subject to all of the following:
(1) All security agreements, rights of the prizewinner, and rights
of the secured creditor shall be determined pursuant to the laws of
the state.
(2) In the event of a default under the loan or security
agreement, the secured creditor's rights shall be limited to
receiving the regular payments made by the lottery, based on the
prizewinner's right to receive a regular prize payment until the
obligation has been paid in full or the prize has been paid in full,
whichever occurs first. Notwithstanding Division 9 (commencing with
Section 9101) of the Commercial Code, the secured creditor shall not
have the right to sell or assign the prizewinner's rights to payments
to itself or to any other person. This section shall not limit the
secured creditor's right to sell, assign, or transfer the obligation
of the debtor and related security interest to a third party.
(3) The prizewinner and secured creditor may agree, and may
jointly instruct the lottery, to directly deposit all prizewinning
payments into an account maintained by the prizewinner at a federally
insured financial institution located within the state. This
account may be subject to the secured creditor's lien. Upon receipt
of these instructions, the lottery shall continue to deposit all
payments due the prizewinner into the account until the lottery
receives notification from both the secured creditor and the
prizewinner that the payments are to be made to an account maintained
at another bank or that the secured creditor releases or terminates
the security interest in the prizewinner's payments.
(4) (A) The prizewinner, pursuant to an order of the court
obtained in compliance with subdivision (d), may direct the lottery
to make the prize payments, in whole or in part, directly to the
secured creditor. A direction to the lottery to make a prize payment
to a secured creditor shall not, in itself, constitute an assignment
of the prize payment to the secured creditor.
(B) For purposes of this paragraph and subdivision (d), "assignee"
and "secured creditor" are synonymous, and "assignment" or "prize
payment" means the payment that is directed to be paid to the secured
creditor.
(5) For purposes of perfecting the security interest of the
secured creditor, the right of the prizewinner to receive payments is
deemed to be a contract right that is perfected by the filing of a
financing statement with the office of the Secretary of State.
(6) A copy of the security agreement, an endorsed copy of the
financing statement, and the joint instruction to deposit the
prizewinner's payments directly into an account, if any, at the
financial institution shall be filed with the lottery.
Notwithstanding the security interest granted a creditor, all lottery
payments shall be made payable directly to the prizewinner, except
as follows:
(A) Payments sent directly to the financial institution designated
pursuant to paragraph (3).
(B) In the event of a default under the security agreement or
obligation it secures, payments sent directly to the secured creditor
pursuant to an order of a court of competent jurisdiction
determining that the payments are to be made directly to the secured
creditor.
(7) Upon the termination or release of the security interest, the
secured creditor shall file an endorsed copy of the release or
termination of the security interest with the lottery.
(d) Except as provided in subdivision (j), an assignment of future
payments to another person designated pursuant to an appropriate
judicial order of a California superior court or a federal court
having jurisdiction over property located within California, if the
court determines and states in its order all of the following:
(1) That the prizewinner was represented by independent legal
counsel whose name and State Bar of California number appears as
counsel of record on all pleadings filed in any and all court
proceedings. The prizewinner's legal counsel shall appear as counsel
of record at any proceedings that are required by the court.
(2) That the prizewinner has represented to the court either by
sworn testimony if a personal appearance is required by the court, or
by written declaration filed with the court under penalty of
perjury, and that the court has determined these representations to
be true and correct, that the prizewinner (A) has reviewed and
understands the terms and effects of the assignment, (B) understands
that he or she will not receive the prize payments or portions
thereof for the years assigned, (C) has entered into the agreement of
his or her own free will without undue influence or duress and not
under the influence of drugs or alcohol, (D) has had an opportunity
to retain independent financial and tax advice, and (E) has been
represented by independent legal counsel, who has advised the
prizewinner of his or her legal rights and obligations under the
assignment.
(3) It shall be the responsibility of the prizewinner to bring to
the attention of the court, either by sworn testimony or by written
declaration submitted under penalty of perjury, the existence or
nonexistence of a current spouse. If married, the prizewinner shall
identify his or her spouse and submit to the court a signed and
notarized statement wherein the spouse consents to the assignment.
If the prizewinner is married and the notarized statement is not
presented to the court, the court shall determine, to the extent
necessary and as appropriate under applicable law, the ability of the
prizewinner to make the proposed assignment without the spouse's
consent.
(4) The specific prize payment or payments assigned, or any
portion thereof, including the dates and amounts of the payments to
be assigned, the years in which each payment is to begin and end, the
gross amount of the annual payments assigned before taxes, the
prizewinner's name as it appears on the lottery claim form, the full
legal name of the assignor if different than the prizewinner's name
as it appears on the lottery claim form, the assignor's social
security or tax identification number, the assignee's full legal name
and social security or tax identification number, and, if
applicable, the citizenship or resident alien number of the assignee
if a natural person.
(5) Expressly identifies the amount, the date if available, any
nonspouse coowner, claimant, or lienholder, and the interests, liens,
security interests, assignments, or offsets asserted by the state or
other persons against any of the prize payments, including, but not
limited to, those payments that are the subject of the proposed
assignment as those interests, liens, security interests,
assignments, or offsets have been represented to the court by the
prizewinner in a written declaration signed under penalty of perjury
and filed with the court.
(6) That the lottery and the State of California are not parties
to the proceeding and that the lottery and the state may rely upon
the order in disbursing the prize payments that are the subject of
the order. Further, that upon payment of prize moneys pursuant to an
order of the court, the lottery, the director, the commission, and
the employees of the lottery and the state shall be discharged of any
and all liability for the prize paid, and these persons and entities
shall have no duty or obligation to any person asserting another
interest in, or right to receive, the prize payment.
(7) That the prizewinner or the proposed assignee has obtained and
filed with the court a notification from the lottery of any liens,
levies, or claims, and the Controller's office of any offsets
asserted as of that time against the prizewinner, as reflected in
their respective official records as of the time of the notification.
The date of the notification shall not be more than 20 days prior
to the court hearing, unless extended by the court.
(e) The assignment of the right to receive any prize payment or
payments by the prizewinner pursuant to subdivision (d) shall be
conditioned on the following terms, conditions, and rights, which may
not be waived or modified by the prizewinner:
(1) The payment of moneys to, or on behalf of, the prizewinner by
the assignee in consideration for the assignment of the prize payment
or payments shall be made in full prior to the time when, under the
terms of the assignment, the lottery is required to make the first
prize payment to the assignee, or may be made in two installments,
the first being paid prior to the time when, under the terms of the
assignment, the lottery is required to make the first prize payment
to the assignee and the second installment within 11 months
thereafter. The second installment shall not be in an amount that
exceeds the first installment.
(2) If the prizewinner elects to accept the consideration to be
paid for the assignment in two installments as provided in paragraph
(1), the prizewinner shall have a special lien for the balance of any
payment due, effective without any further action, agreement, or
notice, on any of the prize payments assigned by the prizewinner for
the payment of moneys from the assignee. This lien shall terminate
upon the prizewinner receiving actual payment of the moneys. The
tendering of a check, payment instrument, or recital of payment shall
not constitute actual payment of moneys for the purposes of this
paragraph.
(3) The Legislature finds and declares that the creation of a
statutory lien in favor of a prizewinner is necessary to protect the
rights of the prizewinner from any creditors, subsequent bankruptcy
trustees of the assignee, or from any subsequent assignees when the
prizewinner has not received full payment for the assigned prize
payments.
(f) Prior to the assignment of any prize as provided in
subdivisions (c) and (d), the Controller shall determine whether the
prizewinner owes any obligation that is subject to offset under
Article 2 (commencing with Section 12410) of Chapter 5 of Part 2 of
Division 3 and shall provide written notification of that
determination to the lottery and to the Secretary of State.
(g) If the lottery determines that the court order issued pursuant
to subdivision (d) is complete and correct in all respects, the
lottery shall send the prizewinner and the assignee or assignees
written confirmation of receipt of the court-ordered assignment and
of the lottery's intention to rely thereon in making future payments
to the assignee or assignees named in the court order.
(h) Notwithstanding any other provision of law, by entering into
an agreement to assign any prize payments pursuant to subdivision (c)
or (d), a prizewinner shall be deemed to have waived any statutory
period of limitation as to the State of California enforcing any
rights against annual prize payments due after the last assigned
payment is paid or released, if assigned as collateral, from the lien
granted the secured creditor. No assignment of prize payments
pursuant to either subdivision (c) or (d) shall be valid or allowed
for the final three annual prize payments from the lottery to the
prizewinner.
(i) Any loans made to a prizewinner pursuant to this section shall
be exempt from the usury provisions of Article XV of the California
Constitution with respect to an assignment of a lottery prize as
collateral to secure a loan.
(j) (1) Notwithstanding any other provision of this section, no
prizewinner shall have the right to assign prize payments pursuant
to subdivision (d) or direct the payment of a prize pursuant to
paragraph (4) of subdivision (c) if any of the following occurs:
(A) The issuance by the United States Internal Revenue Service
(IRS) of a technical rule letter, revenue ruling, or other public
ruling of the IRS in which the IRS determines that, based upon the
right of assignment provided in subdivision (d), a California lottery
prizewinner who does not assign any prize payments pursuant to
subdivision (d) would be subject to an immediate income tax liability
for the value of the entire prize rather than annual income tax
liability for each installment when paid.
(B) The issuance by a court of competent jurisdiction of a
published decision holding that, based upon the right of assignment
provided in subdivision (d), a California lottery prizewinner who
does not assign any prize payments pursuant to subdivision (d) would
be subject to an immediate income tax liability for the value of the
entire prize rather than annual income tax liability for each
installment when paid.
(2) Upon receipt of a letter or ruling from the IRS or a published
decision of a court of competent jurisdiction, as specified in
paragraph (1), the director shall immediately file a copy of that
letter, ruling, or published decision with the Secretary of State.
Immediately upon the filing by the director of a letter, ruling,
or published decision with the Secretary of State, a prizewinner
shall be ineligible to assign a prize pursuant to subdivision (d) or
direct the payment of a prize pursuant to paragraph (4) of
subdivision (c).
SEC. 141. Section 10205.1 of the Government Code is amended to
read:
10205.1. (a) Notwithstanding Sections 18523, 18900, 18901, 18930,
18930.5, 18931, 18933, 18936, 18937, 18938.5, 18939, 18950, 19050,
19052, 19054, 19054.1, 19057, 19057.1, 19057.2, 19057.4, 19081, and
19101, or any other provision of law, but consistent with the merit
principles of subdivision (b) of Section 1 of Article VII of the
California Constitution, the Legislative Counsel Bureau appointing
authority may assign persons to classifications and ranges, conduct
examinations, and make appointments as specified by this section.
The purpose of this section is to improve the management of the
Legislative Data Center, a division of the Legislative Counsel
Bureau, and to provide the Legislative Counsel Bureau with greater
flexibility and adaptability reflective of the information technology
profession.
(b) The Legislative Counsel Bureau appointing authority may, as a
consolidation of the information technology classifications otherwise
available to the bureau, utilize the band classifications of
information systems supervisor/manager, information technology
specialist, and information technician, as available to the bureau on
January 1, 2003, under the demonstration project described in
Section 1 of the act that added this section, as those
classifications may subsequently be modified by the State Personnel
Board, or into other information technology classifications
established by the State Personnel Board. Each of these band
classifications is hereby divided into the ranges that existed in
that classification on January 1, 2003, under that demonstration
project, which ranges may be modified as provided for by the State
Personnel Board, including the delegation of authority to the
Legislative Counsel Bureau appointing authority.
(c) Through the delegation of authority to the Legislative Counsel
Bureau appointing authority or otherwise, the State Personnel Board
shall provide for the allocation, as appropriate, of employees of the
bureau having civil service status to the appropriate classification
and range authorized pursuant to this section and shall grant to
each employee the same civil service status in that classification
and range without further examination.
(d) The Legislative Counsel Bureau appointing authority may
conduct competitive examinations on a position-by-position basis for
the information technology classifications described in this section
and make appointments for information technology positions either in
the manner described in Article 6 (commencing with Section 549.70) of
Subchapter 4 of Chapter 1 of Division 1 of Title 2 of the California
Code of Regulations in effect on January 1, 2003, or in any other
manner approved by the State Personnel Board. In its exercise of
authority under this subdivision pursuant to Article 6 (commencing
with Section 549.70) of Subchapter 4 of Chapter 1 of Division 1 of
Title 2 of the California Code of Regulations, the Legislative
Counsel Bureau appointing authority shall rank each examination
candidate in the manner specified in Article 4 (commencing with
Section 548.30) and Article 5 (commencing with Section 548.40) of
Subchapter 2 of Chapter 1 of Division 1 of Title 2 of the California
Code of Regulations.
SEC. 142. Section 12012.30 of the Government Code is amended to
read:
12012.30. The tribal-state gaming compact entered into in
accordance with the Indian Gaming Regulatory Act of 1988 (18 U.S.C.
Secs. 1166 to 1168, incl., and 25 U.S.C. Sec. 2701 et seq.) between
the State of California and the Torres-Martinez Desert Cahuilla
Indians, executed on August 12, 2003, is hereby ratified.
SEC. 143. Section 12080.3 of the Government Code is amended to
read:
12080.3. Each reorganization plan transmitted by the Governor
under this article:
(a) May change the name of any agency affected by a reorganization
and the title of its head, and shall designate the name of any
agency resulting from a reorganization and the title of its head.
(b) May include provisions, in accordance with Article VII of the
California Constitution, for the appointment of the head and one or
more other officers of any agency, including an agency resulting from
a consolidation or other type of reorganization, if the Governor
finds, and in his or her message transmitting the plan declares, that
by reason of a reorganization made by the plan the provisions are in
the public interest. The head may be an individual or a commission
or board with two or more members. In any case, the appointment of
the agency head shall be subject to confirmation by the Senate. The
term of office of any appointee, if any is provided, shall be fixed
at not more than four years. The Legislature shall fix the
compensation of all department heads and officers who are not subject
to Article VII of the California Constitution.
(c) Shall provide for the transfer of employees serving in the
state civil service, other than temporary employees, who are engaged
in the performance of a function transferred to another agency or
engaged in the administration of a law, the administration of which
is transferred to the agency, by the reorganization plan. The
status, positions, and rights of those persons shall not be affected
by their transfer and shall continue to be retained by them pursuant
to the State Civil Service Act (Part 2 (commencing with Section
18500) of Division 5), except as to positions the duties of which are
vested in a position exempt from civil service.
(d) Shall provide for the transfer or other disposition of the
personnel records and property affected by any reorganization.
(e) Shall provide for the transfer of unexpended balances of
appropriations and of other funds available for use in connection
with any function or agency affected by a reorganization, as the
Governor deems necessary by reason of the reorganization, for use in
connection with the functions affected by the reorganization or for
the use of the agency that has these functions after the
reorganization plan becomes effective. Transferred balances shall be
used only for the purpose for which the appropriation was originally
made.
(f) Shall provide for terminating the affairs of any agency
abolished.
(g) Shall enumerate all acts of the Legislature that will be
suspended if the reorganization plan becomes effective.
SEC. 144. Section 12598 of the Government Code is amended to read:
12598. (a) The primary responsibility for supervising charitable
trusts in California, for ensuring compliance with trusts and
articles of incorporation, and for protection of assets held by
charitable trusts and public benefit corporations, resides in the
Attorney General. The Attorney General has broad powers under common
law and California statutory law to carry out these charitable trust
enforcement responsibilities. These powers include, but are not
limited to, charitable trust enforcement actions under all of the
following:
(1) This article.
(2) Title 8 (commencing with Section 2223) of Part 4 of Division 3
of the Civil Code.
(3) Division 2 (commencing with Section 5000) of Title 1 of the
Corporations Code.
(4) Sections 8111, 11703, 15004, 15409, 15680 to 15685, inclusive,
16060 to 16062, inclusive, 16064, and 17200 to 17210, inclusive, of
the Probate Code.
(5) Chapter 5 (commencing with Section 17200) of Part 2 of
Division 7 of the Business and Professions Code, and Sections 17500
and 17535 of the Business and Professions Code.
(6) Sections 319, 326.5, and 532d of the Penal Code.
(b) The Attorney General shall be entitled to recover from
defendants named in a charitable trust enforcement action all
reasonable attorney's fees and actual costs incurred in conducting
that action, including, but not limited to, the costs of auditors,
consultants, and experts employed or retained to assist with the
investigation, preparation, and presentation in court of the
charitable trust enforcement action.
(c) Attorney's fees and costs shall be recovered by the Attorney
General pursuant to court order. When awarding attorneys' fees and
costs, the court shall order that the attorney's fees and costs be
paid by the charitable organization and the individuals named as
defendants in or otherwise subject to the action, in a manner that
the court finds to be equitable and fair.
(d) Upon a finding by the court that a lawsuit filed by the
Attorney General was frivolous or brought in bad faith, the court may
award the defendant charity the costs of that action.
(e) (1) The Attorney General may refuse to register or may revoke
or suspend the registration of a charitable corporation or trustee,
commercial fundraiser, fundraising counsel, or coventurer whenever
the Attorney General finds that the charitable corporation or
trustee, commercial fundraiser, fundraising counsel, or coventurer
has violated or is operating in violation of any provisions of this
article.
(2) All actions of the Attorney General shall be taken subject to
the rights authorized pursuant to Chapter 4.5 (commencing with
Section 11400) of Part 1 of Division 3 of Title 2.
SEC. 145. Section 13995.20 of the Government Code is amended to
read:
13995.20. Unless the context otherwise requires, the definitions
in this section govern the construction of this chapter.
(a) "Appointed commissioner" means a commissioner appointed by the
Governor.
(b) "Assessed business" means a person required to pay an
assessment pursuant to this chapter, and until the first assessment
is levied, any person authorized to vote for the initial referendum.
An assessed business shall not include a public entity or a
corporation when a majority of the corporation's board of directors
is appointed by a public official or public entity, or serves on the
corporation's board of directors by virtue of being elected to public
office, or both.
(c) "Commission" means the California Travel and Tourism
Commission.
(d) "Elected commissioner" means a commissioner elected pursuant
to subdivision (d) of Section 13995.40.
(e) "Industry category" means the
following classifications within the tourism industry:
(1) Accommodations.
(2) Restaurants and retail.
(3) Attractions and recreation.
(4) Transportation and travel services.
(f) "Industry segment" means a portion of an industry category.
For example, rental cars are an industry segment of the
transportation and travel services industry category.
(g) "Office" means the Office of Tourism, also popularly referred
to as the Division of Tourism, within the Business, Transportation
and Housing Agency.
(h) "Person" means an individual, public entity, firm,
corporation, association, or any other business unit, whether
operating on a for-profit or nonprofit basis.
(i) "Referendum" means any vote by mailed ballot of measures
recommended by the commission and approved by the secretary pursuant
to Section 13995.60, except for the initial referendum, which shall
consist of measures contained in the selection committee report,
discussed in Section 13995.30.
(j) "Secretary" means the Secretary of Business, Transportation
and Housing.
(k) "Selection Committee" means the Tourism Selection Committee
described in Article 3 (commencing with Section 13995.30).
SEC. 146. Section 13995.40 of the Government Code is amended to
read:
13995.40. (a) Upon approval of the initial referendum, the office
shall establish a nonprofit mutual benefit corporation named the
California Travel and Tourism Commission. The commission shall be
under the direction of a board of commissioners, which shall function
as the board of directors for purposes of the Nonprofit Corporation
Law.
(b) The board of commissioners shall consist of 37 commissioners
comprising the following:
(1) The secretary, who shall serve as chairperson.
(2) Twelve members, who are professionally active in the tourism
industry, representing each of the 12 officially designated tourism
regions and diverse elements of the industry, shall be appointed by
the Governor. Appointed commissioners are not limited to assessed
businesses.
(3) Twenty-four elected commissioners, including at least one
representative of a travel agency or tour operator that is an
assessed business.
(c) The commission established pursuant to Section 15364.52 shall
be inoperative so long as the commission established pursuant to this
section is in existence.
(d) Elected commissioners shall be elected by industry category in
a referendum. Regardless of the number of ballots received for a
referendum, the nominee for each commissioner slot with the most
weighted votes from assessed businesses within that industry category
shall be elected commissioner. In the event that an elected
commissioner resigns, dies, or is removed from office during his or
her term, the commission shall appoint a replacement from the same
industry category that the commissioner in question represented, and
that commissioner shall fill the remaining term of the commissioner
in question. The number of commissioners elected from each industry
category shall be determined by the weighted percentage of
assessments from that category.
(e) The secretary may remove any elected commissioner following a
hearing at which the commissioner is found guilty of abuse of office
or moral turpitude.
(f) With the exception of the secretary, no commissioner shall
serve for more than two consecutive terms.
(g) Except for the original commissioners, all commissioners shall
serve four-year terms. One-half of the commissioners originally
appointed or elected shall serve a two-year term, while the remainder
shall serve a four-year term. Every two years thereafter, one-half
of the commissioners shall be appointed or elected by referendum.
(h) The selection committee shall determine the initial slate of
candidates for elected commissioners. Thereafter the commissioners,
by adopted resolution, shall nominate a slate of candidates, and
shall include any additional candidates complying with the procedure
described in Section 13995.62.
(i) The commissioners shall elect a vice chairperson from the
elected commissioners.
(j) The commission may lease space from the office.
(k) The commission and the office shall be the official state
representatives of California tourism.
(l) All commission meetings shall be held in California.
(m) No person shall receive compensation for serving as a
commissioner, but each commissioner shall receive reimbursement for
reasonable expenses incurred while on authorized commission business.
(n) Assessed businesses shall vote only for commissioners
representing their industry category.
(o) Commissioners shall comply with the requirements of the
Political Reform Act of 1974 (Title 9 (commencing with Section
81000)). The Legislature finds and declares that commissioners
appointed or elected on the basis of membership in a particular
tourism segment are appointed or elected to represent and serve the
economic interests of those tourism segments and that the economic
interests of these members are the same as those of the public
generally.
(p) Commission meetings shall be subject to the requirements of
the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section
11120) of Chapter 1 of Part 1).
(q) The executive director of the commission shall serve as
secretary to the commission, a nonvoting position, and shall keep the
minutes and records of all commission meetings.
SEC. 147. Section 13995.42 of the Government Code is amended to
read:
13995.42. (a) The commission is a separate, independent
California nonprofit mutual benefit corporation. Except as provided
in Section 13995.43, the staff of the commission shall be employees
solely of the commission, and the procedures adopted by the
commission shall not be subject to the Administrative Procedure Act
(Chapter 3.5 (commencing with Section 11340) of Part 1).
(b) Not later than six months following the initial referendum,
the commission shall adopt procedures concerning the operation of the
commission in order to provide due process rights for assessed
businesses.
(c) In the event that the commission fails to adopt the procedures
described in subdivision (b) within the specified timeframe, the
secretary shall adopt procedures for use by the commission until the
commission adopts its own procedures. These procedures shall be
exempt from the Administrative Procedure Act (Chapter 3.5 (commencing
with Section 11340) of Part 1), whether adopted by the commission or
secretary.
SEC. 148. Section 13995.58 of the Government Code is amended to
read:
13995.58. The office may contract with the commission in order
for the commission to undertake marketing activities utilizing state
funds. Section 10295 of the Public Contract Code, and Article 4
(commencing with Section 10335) and Article 5 (commencing with
Section 10355) of Chapter 2 of Part 2 of Division 2 of the Public
Contract Code, shall not apply to those agreements.
SEC. 149. Section 13995.65 of the Government Code is amended to
read:
13995.65. (a) Each industry category shall establish a committee
to determine the following within its industry category: industry
segments, assessment formula for each industry segment, and any types
of business exempt from assessment. The initial segment committees
shall consist of the subcommittee for that category as described in
subdivision (d) of Section 13995.30. Following approval of the
assessment by referendum, the committees shall be selected by the
commission, based upon recommendations from the tourism industry.
Committee members need not be commission members.
(b) The committee recommendations shall be presented to the
commission or selection committee, as applicable. The selection
committee may adopt a resolution specifying some or all of the items
listed in subdivision (a), plus an allocation of the overall
assessment among industry categories. The commission may adopt a
resolution specifying one or more of the items listed in subdivision
(a), plus an allocation of the proposed assessment. The selection
committee and commission are not required to adopt the findings of
any committee.
(c) The initial industry category and industry segment allocations
shall be included in the selection committee report required by
subdivision (b) of Section 13995.30. Changes to the industry segment
allocation formula may be recommended to the commission by a segment
committee at the biennial commission meeting scheduled to approve
the referendum resolution pursuant to Section 13995.60. At the same
meeting, the commission may amend the percentage allocations among
industry categories. Any item discussed in this section that is
approved by resolution of the commission, except amendments to the
percentage allocations among industry categories, shall be placed on
the next referendum, and adopted if approved by the majority of
weighted votes cast.
(d) Upon approval by referendum, the office shall mail an
assessment bill to each assessed business. The secretary shall
determine how often assessments are collected, based upon available
staffing resources. The secretary may stagger the assessment
collection throughout the year, and charge businesses a prorated
amount of assessment because of the staggered assessment period. The
secretary and office shall not divulge the amount of assessment or
weighted votes of any assessed businesses, except as part of an
assessment action.
(e) An assessed business may appeal an assessment to the secretary
based upon the fact that the business does not meet the definition
established for an assessed business within its industry segment or
that the level of assessment is incorrect. An appeal brought under
this subdivision shall be supported by substantial evidence submitted
under penalty of perjury by affidavit or declaration as provided in
Section 2015.5 of the Code of Civil Procedure. If the error is based
upon failure of the business to provide the required information in
a timely manner, the secretary may impose a fee for reasonable costs
incurred by the secretary in correcting the assessment against the
business as a condition of correcting the assessment.
(f) Notwithstanding any other provision of law, an assessed
business may pass on some or all of the assessment to customers. An
assessed business that is passing on the assessment may, but shall
not be required to, separately identify or itemize the assessment on
any document provided to a customer. Assessments levied pursuant to
this chapter and passed on to customers are not part of gross
receipts or gross revenue for any purpose, including the calculation
of sales or use tax and income pursuant to any lease. However,
assessments that are passed on to customers shall be included in
gross receipts for purposes of income and franchise taxes.
(g) For purposes of calculating the assessment for a business with
revenue in more than one industry category or industry segment, that
business may elect to be assessed based on either of the following:
(1) The assessment methodology and rate of assessment applicable
to each category or segment, respectively, as it relates to the
revenue that it derives from that category or segment.
(2) With respect to its total revenue from all industry categories
or segments, the assessment methodology and rate of assessment
applicable to the revenue in the category and segment in which it
earns the most gross revenue.
SEC. 150. Section 13995.74 of the Government Code is amended to
read:
13995.74. In lieu of requiring advance deposits pursuant to
Section 13995.73, or in order generally to provide funds for
defraying administrative expenses or the expenses of implementing the
tourism marketing plan until the time that sufficient moneys are
collected for this purpose from the payment of the assessments that
are established pursuant to this chapter, the secretary may receive
and disburse for the express purposes contributions that are made by
assessed businesses. If, however, collections from the payment of
established assessments are sufficient to so warrant, the secretary
shall authorize the repayment of contributions, or authorize the
application of the contributions to the assessment obligations of
persons that made the contributions.
SEC. 151. Section 13997.1 of the Government Code is amended to
read:
13997.1. (a) The Governor shall instruct the Secretary of
Business, Transportation and Housing to establish, on a contract
basis, an international trade and investment office in Yerevan, in
the Republic of Armenia, to serve the region of Eastern Europe and
Western Asia.
(b) The secretary shall report to the Legislature on the success
of the international trade and investment office in Yerevan no later
than March 1, 2005. The report shall include, but not be limited to,
all of the following:
(1) The level of investment and tourism directed to California as
a direct result of the international trade and investment office.
(2) The level of imports sent to California as a direct result of
the international trade and investment office.
(3) The level of California exports sent to the region of Eastern
Europe and Western Asia as a direct result of the international trade
and investment office.
(4) A cost-benefit analysis of the international trade and
investment office.
(5) An analysis of the costs and outcomes of the international
trade and investment office compared with those of the other
international trade and investment offices.
(c) This section shall be implemented only to the extent that
funds are available to the Business, Transportation and Housing
Agency for this purpose from any source, including, but not limited
to, federal funding and private donations authorized pursuant to
Section 13997. Private donations made pursuant to Section 13997 and
specified for the international trade and investment office in
Yerevan shall be deposited in a separate subaccount within the
Economic Development and Trade Promotion Account and may be used only
for the operation of this office.
(d) 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. 152. Section 14055.2 of the Government Code is amended to
read:
14055.2. Funds made available to the department shall be
allocated as follows:
(a) Not more than 5 percent of the annual federal apportionment
may be retained by the department for the cost of administering
grants.
(b) The remaining funds shall be allocated by the department, as
directed by the commission, consistent with Section 14055.
SEC. 153. Section 18215 of the Government Code is amended to read:
18215. (a) Except as provided in subdivision (b), regulations
concerning the following shall be subject to the Administrative
Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3):
(1) Representation of minorities, women, and persons with
disabilities in the state workforce.
(2) Equal employment opportunities.
(3) Board hearing procedures relating to public testimony and
participation, except a procedure that is expressly required by
statute.
(4) Disciplinary hearing procedures not mandated by statutes,
court decisions, or board precedential decisions. However, rulings
within the discretion of an administrative law judge are not subject
to this article.
(5) Drug testing.
(6) Grounds for employee discipline.
(7) Reasonable accommodation.
(b) Notwithstanding subdivision (a), the following provisions of
the Administrative Procedure Act shall not apply to regulations
concerning the subjects specified in subdivision (a):
(1) Section 11346.14.
(2) Paragraph (1) of subdivision (a) of, and paragraphs (4), (5),
and (6) of subdivision (b) of, Section 11346.2.
(3) Section 11346.3.
(4) Paragraph (3) of subdivision (a) of Section 11346.4.
(5) Subparagraph (B) of paragraph (3) of, and paragraphs (5) and
(7) to (12), inclusive, of, subdivision (a) of Section 11346.5.
(6) Paragraphs (2), (4), and (5) of subdivision (a) of Section
11346.9.
(7) Paragraphs (3) and (4) of subdivision (a) of Section 11347.3.
(8) Subdivisions (a), (e), and (f) of Section 11349.
(9) Paragraphs (1), (5), and (6) of subdivision (a) of, and
paragraph (3) of subdivision (d) of, Section 11349.1.
SEC. 154. Section 19063.1 of the Government Code is amended to
read:
19063.1. Each state agency that intends to establish qualified
hiring pools, as defined by the State Personnel Board, for seasonal
or entry level nontesting class employment shall notify the
Employment Development Department or its delegate in the area where
the openings are expected to occur at least 45 calendar days prior to
the establishment of the pool. The state agency shall request
referrals of public assistance recipients and at the same time shall
provide necessary job-related information.
SEC. 155. Section 19582.1 of the Government Code is amended to
read:
19582.1. Notwithstanding Section 19582, this section shall apply
to state employees in State Bargaining Unit 8.
(a) The board's review of decisions of minor discipline, as
defined by a memorandum of understanding or by Section 19576.5, shall
be limited to either adopting the penalty of the proposed decision
or revoking the disciplinary action in its entirety.
(b) The board's review of decisions of discipline, including minor
discipline, shall not impose any discipline against an employee that
would jeopardize the employee's status under the federal Fair Labor
Standards Act, as set forth pursuant to Section 13(a)(1) of The Fair
Labor Standards Act of 1938, as amended (29 U.S.C. Sec. 213(a)(1))
and in Part 54 of Title 29 of the Code of Federal Regulations, as
defined and delimited on the effective date of this section and as
those provisions may be amended in the future.
(c) If 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
provision shall not become effective unless approved by the
Legislature in the annual Budget Act.
SEC. 156. Section 19826 of the Government Code is amended to read:
19826. (a) The department shall establish and adjust salary
ranges for each class of position in the state civil service subject
to any merit limits contained in Article VII of the California
Constitution. The salary range shall be based on the principle that
like salaries shall be paid for comparable duties and
responsibilities. In establishing or changing these ranges,
consideration shall be given to the prevailing rates for comparable
service in other public employment and in private business. The
department shall make no adjustments that require expenditures in
excess of existing appropriations that may be used for salary
increase purposes. The department may make a change in salary range
retroactive to the date of application of this change.
(b) Notwithstanding any other provision of law, the department
shall not establish, adjust, or recommend a salary range for any
employees in an appropriate unit where an employee organization has
been chosen as the exclusive representative pursuant to Section
3520.5.
(c) At least six months before the end of the term of an existing
memorandum of understanding or immediately upon the reopening of
negotiations under an existing memorandum of understanding, the
department shall submit to the parties meeting and conferring
pursuant to Section 3517 and to the Legislature, a report containing
the department's findings relating to the salaries of employees in
comparable occupations in private industry and other governmental
agencies.
(d) 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 shall not become effective unless approved by the
Legislature in the annual Budget Act.
SEC. 157. Section 20035.2 of the Government Code is amended to
read:
20035.2. Notwithstanding Sections 20035 and 20037, "final
compensation," for the purpose of determining any pension or benefit
with respect to a patrol member who retires or dies on or after July
1, 2003, who was a member of State Bargaining Unit 5, and whose
monthly salary range that was to be effective July 1, 2003, was
reduced by 5 percent pursuant to an addendum to a memorandum of
understanding entered during the 2003-04 fiscal year, means the
highest annual compensation the patrol member would have earned as of
July 1, 2003, if that 5-percent reduction had not occurred. This
section shall apply only if the period during which the patrol member'
s salary was reduced would have otherwise been included in
determining his or her final compensation. The increased costs, if
any, that may result from the application of the definition of "final
compensation" provided in this section shall be paid by the employer
in the same manner as other retirement benefits are funded.
SEC. 158. Section 20035.3 of the Government Code is amended to
read:
20035.3. Notwithstanding Sections 20035 and 20037, "final
compensation," for the purpose of determining any pension or benefit
with respect to a state miscellaneous or peace officer/firefighter
member who retires or dies on or after July 1, 2003, who was a member
of State Bargaining Unit 8, and whose monthly salary range that was
to be effective July 1, 2003, was reduced by 5 percent pursuant to an
addendum to a memorandum of understanding entered during the 2003-04
fiscal year, means the highest annual compensation the member would
have earned as of July 1, 2003, if that 5-percent reduction had not
occurred. This section shall apply only if the period during which
the member's salary was reduced would have otherwise been included in
determining his or her final compensation. The increased costs, if
any, that may result from the application of the definition of "final
compensation" provided in this section shall be paid by the employer
in the same manner as other retirement benefits are funded.
SEC. 159. Section 20035.4 of the Government Code is amended to
read:
20035.4. Notwithstanding Sections 20035 and 20037, "final
compensation," for the purpose of determining any pension or benefit
with respect to a member who retires or dies on or after July 1,
2003, who was a member of State Bargaining Unit 16, and whose monthly
salary range that was to be effective July 1, 2003, was reduced by 5
percent pursuant to a memorandum of understanding entered during the
2003-04 fiscal year, means the highest annual compensation the
member would have earned as of July 1, 2003, if that 5-percent
reduction had not occurred. This section shall apply only if the
period during which the member's salary was reduced would have
otherwise been included in determining his or her final compensation.
The increased costs, if any, that may result from the application
of the definition of "final compensation" provided in this section
shall be paid by the employer in the same manner as other retirement
benefits are funded.
SEC. 160. Section 20035.5 of the Government Code, as added by
Chapter 615 of the Statutes of 2003, is amended and renumbered to
read:
20035.6. Notwithstanding Sections 20035 and 20037, "final
compensation," for the purpose of determining any pension or benefit
with respect to a member who retires or dies on or after July 1,
2003, who was a member of State Bargaining Unit 19, and whose monthly
salary range that was to be effective July 1, 2003, was reduced by 5
percent pursuant to a memorandum of understanding entered during the
2003-04 fiscal year, means the highest annual compensation the
member would have earned as of July 1, 2003, if that 5-percent
reduction had not occurred. This section shall apply only if the
period during which the member's salary was reduced would have
otherwise been included in determining his or her final compensation.
The increased costs, if any, that may result from the application
of the definition of "final compensation" provided in this section
shall be paid by the employer in the same manner as other retirement
benefits are funded.
SEC. 161. Section 20035.10 of the Government Code is amended to
read:
20035.10. (a) Notwithstanding Sections 20035 and 20037, "final
compensation," for the purpose of determining any pension or benefit
with respect to a state miscellaneous member (1) who retires or dies
on or after July 1, 2003, (2) who was a member of the state
bargaining unit listed in subdivision (b), and (3) whose monthly
salary range that was to be effective July 1, 2003, was reduced by 5
percent pursuant to a memorandum of understanding entered into during
the 2003-04 fiscal year, means the highest annual compensation the
member would have earned as of July 1, 2003, if that 5-percent
reduction had not occurred. This section shall apply only if the
period during which the member's salary was reduced would have
otherwise been included in determining his or her final compensation.
The increased costs, if any, that may result from the application
of the definition of "final compensation" provided in this section
shall be paid by the employer in the same manner as other retirement
benefits are funded.
(b) This section shall apply with respect to members in State
Bargaining Unit 9.
SEC. 162. Section 20235 of the Government Code is amended to read:
20235. (a) The board shall submit a review of this system's
assets to the Legislature on a quarterly basis. The report shall
also be made available to all contracting agencies. The report shall
do both of the following:
(1) Discuss this system's portfolio and contain the following
information:
(A) Concentration, current holdings at cost and market value, of
equities.
(B) Concentration, current holdings at cost and market value, of
fixed income instruments.
(C) Current holdings at cost and market value of real estate
equities.
(D) Current holdings at cost and market value of mortgages.
(E) Options and
forward commitments.
(F) Cash and cash equivalents.
(2) Disclose the following information on the rate of return of
the fund by type of asset:
(A) Time-weighted return on a five-year, three-year, two-year, and
one-year basis.
(B) Dollar-weighted return on a five-year, three-year, two-year,
and one-year basis.
(C) Summary of performance of an alternative theoretical portfolio
containing all investments and performance of comparable universes
and other indexes.
(b) Upon written request from a contracting agency that does not
participate in a risk pool, the board shall submit additional
quarterly reports to the contracting agency as described in this
subdivision. For the first quarter of the fiscal year, the report
shall be submitted within 120 days after the end of the quarter and
shall contain the agency's beginning balance for the fiscal year.
For the second and third quarters of the fiscal year, the report
shall be submitted to the contracting agency within 90 days after the
end of the quarter. For the fourth quarter of the fiscal year, the
report shall be submitted within 180 days after the end of the
quarter and shall contain the agency's balance as of the end of the
fiscal year. The report shall include, but need not be limited to,
the following:
(1) All contributions made to the system by the contracting agency
and its employees. The contributions shall be reported as the
amounts paid and the amounts due from the contracting agency for both
employer contributions and employee contributions.
(2) All benefits paid by the system to members of the contracting
agency and their survivors and beneficiaries, including payments on
account of pension, death, and disability benefits, and withdrawals
of contributions. The benefits shall be reported as the total
monthly allowances paid to retirees, survivors, and beneficiaries;
the amount of total refunds paid; and the amount of any other lump
sums paid.
(3) An amount that represents any miscellaneous adjustments,
including transfers in and out.
(4) That quarter's portion of the agency's estimated share of the
system's administrative costs that shall be assessed at the end of
the fiscal year.
(5) The rate of return for the system during the quarter as
reported to the board by the investment committee.
(6) The estimated interest applied to the agency's account as
determined by the system. For purposes of this paragraph, the
"estimated interest applied" means the estimate of the annual net
earnings, as defined in Section 20052, and is subject to adjustment
at the end of the fiscal year based on the actual dollar-weighted
amount of investment return that shall be credited to the agency's
account for the fiscal year. The report for the fourth quarter of
the fiscal year shall also include the actual dollar-weighted amount
of investment return for the fiscal year that shall be credited to
the contracting agency's account.
(c) Upon written request from a contracting agency that
participates in a risk pool, the board shall submit to the
contracting agency quarterly reports that reflect the total
contributions made to the system by agencies in the risk pool, the
total benefits paid by the system with respect to the risk pool, the
total estimated share of administrative costs for the risk pool, and
the total estimated share of investment returns for the risk pool.
(d) A contracting agency requesting quarterly reports pursuant to
subdivision (b) or (c) shall pay a fee, in an amount determined by
the board, not to exceed one thousand five hundred dollars ($1,500)
quarterly per agency while the manual process of collecting the
information is in use.
(e) Any report received by a contracting agency pursuant to this
section shall be made available by the agency to any employee
organization that represents the agency's employees and that requests
a copy of the report.
SEC. 163. Section 22013.97 of the Government Code is amended to
read:
22013.97. "Policeman" or "fireman," as used in this part, also
includes persons employed in positions set forth in Section 20398 for
the purposes of Section 218(d)(5)(A) of the Social Security Act (42
U.S.C. Sec. 418(d)(5)(A)).
SEC. 164. Section 22825.12 of the Government Code is amended to
read:
22825.12. (a) Notwithstanding Section 22825.1, subdivision (b) of
Section 22825.15, or any other provision of this article, the
employer's contribution with respect to employees in State Bargaining
Unit 16 and State Bargaining Unit 19 shall be as described in
paragraphs (1) and (2). To be eligible for this contribution, the
employee must be enrolled in an approved health benefits plan.
(1) From January 1, 2004, to December 31, 2005, inclusive, the
employer's contribution for each employee shall be an amount equal to
80 percent of the weighted average of the basic health benefits plan
premium for an active state civil service employee enrolled for
himself or herself alone, during the benefit year to which the
formula is applied, for the four basic health benefits plans that had
the largest active state civil service enrollment, excluding family
members, during the previous benefit year. For each employee with
enrolled family members, the employer shall contribute an additional
80 percent of the weighted average of the additional premiums
required for enrollment of those family members, during the benefit
year to which the formula is applied, in the four basic health
benefits plans that had the largest active state civil service
enrollment, excluding family members, during the previous benefit
year.
(2) From and after January 1, 2006, the employer's contribution
for each employee shall be an amount equal to 85 percent of the
weighted average of the basic health benefits plan premium for an
active state civil service employee enrolled for himself or herself
alone, during the benefit year to which the formula is applied, for
the four basic health benefits plans that had the largest active
state civil service enrollment, excluding family members, during the
previous benefit year. For each employee with enrolled family
members, the employer shall contribute an additional 80 percent of
the weighted average of the additional premiums required for
enrollment of those family members, during the benefit year to which
the formula is applied, in the four basic health benefits plans that
had the largest active state civil service enrollment, excluding
family members, during the previous benefit year.
(b) The employer is not obligated to make a contribution under
this section for any employee unless and until the effective date of
the employee's enrollment in an approved health benefits plan.
(c) The contribution of each employee and annuitant under this
section shall be the total cost per month of the benefit coverage
afforded him or her under the plan or plans less the portion thereof
to be contributed by the employer.
(d) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5 or Chapter 12 (commencing with Section 3560) of
Division 4 of Title 1, the memorandum of understanding shall be
controlling without further legislative action, except that if those
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.
SEC. 165. Section 25358 of the Government Code is amended to read:
25358. The board shall provide all necessary officers, employees,
attendants, services, and supplies for the proper maintenance, care,
and upkeep of the county buildings and grounds, and the board may
contract therefor pursuant to Article 3.5 (commencing with Section
20120) of Part 3 of the Public Contract Code.
SEC. 166. Section 29550 of the Government Code is amended to read:
29550. (a) (1) Notwithstanding any other provision of law, a
county may impose a fee upon a city, special district, school
district, community college district, college, or university for
reimbursement of county expenses incurred with respect to the booking
or other processing of persons arrested by an employee of that city,
special district, school district, community college district,
college, or university, if the arrested persons are brought to the
county jail for booking or detention. The fee imposed by a county
pursuant to this section shall not exceed the actual administrative
costs, including applicable overhead costs as permitted by federal
Circular A-87 standards, as defined in subdivision (d), incurred in
booking or otherwise processing arrested persons. A county may
submit an invoice to a city, special district, school district,
community college district, college, or university for these expenses
incurred by the county on and after July 1, 1990. Counties shall
fully disclose the costs allocated as federal Circular A-87 overhead.
(2) Any increase in a fee charged pursuant to this section shall
be adopted by a county prior to the beginning of its fiscal year and
may be adopted only after the county has provided each city, special
district, school district, community college district, college, or
university 45 days' written notice of a public meeting held pursuant
to Section 54952.2 on the fee increase and the county has conducted
the public meeting.
(3) Any county that imposes a fee pursuant to this section shall
negotiate a reduced fee with any city, special district, school
district, community college district, college, or university within
the county for any services that are performed by the arresting
agency in the processing of arrestees that do not have to be
duplicated by the county.
(4) This subdivision shall not apply to counties that are under a
contractual agreement with a city, special district, school district,
community college district, college, or university within the county
that is subject to the fee.
(b) The exemption of a local agency from the payment of a fee
pursuant to this subdivision does not exempt the person arrested from
the payment of fees for booking or other processing.
(1) Notwithstanding subdivision (a), a city, special district,
school district, community college district, college, or university
shall not be charged fees for arrests on any bench warrant for
failure to appear in court, nor on any arrest warrant issued in
connection with a crime not committed within the entity's
jurisdiction.
(2) Notwithstanding subdivision (a), a city, special district,
school district, community college district, college, or university
shall not be charged fees for a person who is ordered by a court to
be remanded to the county jail except that a county may charge a fee
to recover those direct costs for those functions required to book a
person pursuant to subdivision (g) of Section 853.6 of the Penal
Code.
(3) Notwithstanding subdivision (a), a city, special district,
school district, community college district, college, or university
shall not be charged fees for arrests made pursuant to arrest
warrants originating outside of its jurisdiction.
(4) Notwithstanding subdivision (a), no fees shall be charged to a
city, special district, school district, community college district,
college, or university on parole violation arrests or
probation-ordered returns to custody, unless a new charge has been
filed for a crime committed in the jurisdiction of the arresting
city, district, college, or university.
(5) An agency making a mutual aid request shall pay fees that
result from arrests made in response to the mutual aid request except
that in the event the Governor declares a state of emergency, no
agency shall be charged fees for any arrest made during any riot,
disturbance, or event that is subject to the declaration.
(6) Notwithstanding subdivision (a), no fees shall be charged to a
city, special district, school district, community college district,
college, or university for the arrest of a prisoner who has escaped
from a county, state, or federal detention or corrections facility.
(7) Notwithstanding subdivision (a), no fees shall be charged to a
city, special district, school district, community college district,
college, or university for arrestees held in temporary detention at
a court facility for purposes of arraignment when the arrestee has
been previously booked at an entity detention facility.
(8) Notwithstanding subdivision (a), no fees shall be charged to a
city, special district, school district, community college district,
college, or university as the result of an arrest made by its
officer assigned to a formal multiagency task force in which the
county is a participant. For the purposes of this section, "formal
task force" means a task force that has been established by written
agreement of the participating agencies.
(9) In those counties in which the cities and the county
participate in a consolidated booking program and, prior to
arraignment, an arrestee is transferred from a city detention
facility to a county detention facility, the city shall not be
charged for those tasks listed in subdivision (d) that are a part of
the consolidated booking program that were completed by the city
prior to delivering the arrestee to the county detention facility.
However, the county may charge the actual administrative costs for
those additional tasks listed in subdivision (d) that are performed
in order to receive the arrestee into the county detention facility.
(c) Any county whose officer or agent arrests a person is entitled
to recover from the arrested person a criminal justice
administration fee for administrative costs it incurs in conjunction
with the arrest if the person is convicted of any criminal offense
related to the arrest, whether or not it is the offense for which the
person was originally booked. The fee which the county is entitled
to recover pursuant to this subdivision shall not exceed the actual
administrative costs, including applicable overhead costs incurred in
booking or otherwise processing arrested persons.
(d) When the court has been notified in a manner specified by the
court that a criminal justice administration fee is due the agency:
(1) A judgment of conviction may impose an order for payment of
the amount of the criminal justice administration fee by the
convicted person, and execution may be issued on the order in the
same manner as a judgment in a civil action, but shall not be
enforceable by contempt.
(2) The court shall, as a condition of probation, order the
convicted person, based on his or her ability to pay, to reimburse
the county for the criminal justice administration fee, including
applicable overhead costs.
(e) As used in this section, "actual administrative costs"
includes only those costs for functions that are performed in order
to receive an arrestee into a county detention facility. Operating
expenses of the county jail facility, including capital costs and
those costs involved in the housing, feeding, and care of inmates,
shall not be included in calculating "actual administrative costs."
"Actual administrative costs" may include the cost of notifying any
local agency, special district, school district, community college
district, college, or university of any change in the fee charged by
a county pursuant to this section. "Actual administrative costs" may
include any one or more of the following as related to receiving an
arrestee into the county detention facility:
(1) The searching, wristbanding, bathing, clothing,
fingerprinting, photographing, and medical and mental screening of an
arrestee.
(2) Document preparation, retrieval, updating, filing, and court
scheduling related to receiving an arrestee into the detention
facility.
(3) Warrant service, processing, and detainer.
(4) Inventory of an arrestee's money and creation of cash
accounts.
(5) Inventory and storage of an arrestee's property.
(6) Inventory, laundry, and storage of an arrestee's clothing.
(7) The classification of an arrestee.
(8) The direct costs of automated services utilized in paragraphs
(1) to (7), inclusive.
(9) Unit management and supervision of the detention function as
related to paragraphs (1) to (8), inclusive.
(f) An administrative screening fee of twenty-five dollars ($25)
shall be collected from each person arrested and released on his or
her own recognizance upon conviction of any criminal offense related
to the arrest other than an infraction. A citation processing fee in
the amount of ten dollars ($10) shall be collected from each person
cited and released by any peace officer in the field or at a jail
facility upon conviction of any criminal offense, other than an
infraction, related to the criminal offense cited in the notice to
appear. However, the court may determine a lesser fee than otherwise
provided in this subdivision upon a showing that the defendant is
unable to pay the full amount. All fees collected pursuant to this
subdivision shall be transmitted by the county auditor monthly to the
Controller for deposit in the General Fund. This subdivision
applies only to convictions occurring on or after the effective date
of the act adding this subdivision and prior to June 30, 1996.
SEC. 167. Section 30061 of the Government Code is amended to read:
30061. (a) There shall be established in each county treasury a
Supplemental Law Enforcement Services Fund (SLESF), to receive all
amounts allocated to a county for purposes of implementing this
chapter.
(b) In any fiscal year for which a county receives moneys to be
expended for the implementation of this chapter, the county auditor
shall allocate moneys in the county's SLESF, including any interest
or other return earned on the investment of those moneys, within 30
days of the deposit of those moneys into the fund, and shall allocate
those moneys in accordance with the requirements set forth in this
subdivision. However, the auditor shall not transfer those moneys to
a recipient agency until the Supplemental Law Enforcement Oversight
Committee certifies receipt of an approved expenditure plan from the
governing board of that agency.
(1) Five and fifteen one hundredths percent to the county sheriff
for county jail construction and operation. In the case of Madera,
Napa, and Santa Clara Counties, this allocation shall be made to the
county director or chief of corrections.
(2) Five and fifteen one hundredths percent to the district
attorney for criminal prosecution.
(3) Thirty-nine and seven tenths percent to the county and the
cities within the county, and, in the case of San Mateo, Kern,
Siskiyou, and Contra Costa Counties, also to the Broadmoor Police
Protection District, the Bear Valley Community Services District, the
Stallion Springs Community Services District, the Lake Shastina
Community Services District, and the Kensington Police Protection and
Community Services District, in accordance with the relative
population of the cities within the county and the unincorporated
area of the county, and the Broadmoor Police Protection District in
the County of San Mateo, the Bear Valley Community Services District
and the Stallion Springs Community Services District in Kern County,
the Lake Shastina Community Services District in Siskiyou County, and
the Kensington Police Protection and Community Services District in
Contra Costa County, as specified in the most recent January estimate
by the population research unit of the Department of Finance, and as
adjusted to provide a grant of at least one hundred thousand dollars
($100,000) to each law enforcement jurisdiction. For a newly
incorporated city whose population estimate is not published by the
Department of Finance, but that was incorporated prior to July 1 of
the fiscal year in which an allocation from the SLESF is to be made,
the city manager, or an appointee of the legislative body, if a city
manager is not available, and the county administrative or executive
officer shall prepare a joint notification to the Department of
Finance and the county auditor with a population estimate reduction
of the unincorporated area of the county equal to the population of
the newly incorporated city by July 15, or within 15 days after the
Budget Act is enacted, of the fiscal year in which an allocation from
the SLESF is to be made. No person residing within the Broadmoor
Police Protection District, the Bear Valley Community Services
District, the Stallion Springs Community Services District, the Lake
Shastina Community Services District, or the Kensington Police
Protection and Community Services District shall also be counted as
residing within the unincorporated area of the County of San Mateo,
Kern, Siskiyou, or Contra Costa, or within any city located within
those counties. The county auditor shall allocate a grant of at
least one hundred thousand dollars ($100,000) to each law enforcement
jurisdiction. Moneys allocated to the county pursuant to this
subdivision shall be retained in the county SLESF, and moneys
allocated to a city pursuant to this subdivision shall be deposited
in a SLESF established in the city treasury.
(4) Fifty percent to the county or city and county to implement a
comprehensive multiagency juvenile justice plan as provided in this
paragraph and to the Board of Corrections for administrative
purposes. Funding for the Board of Corrections, as determined by the
Department of Finance, shall not exceed two hundred seventy-five
thousand dollars ($275,000). For the 2003-04 fiscal year, of the two
hundred seventy-five thousand dollars ($275,000), up to one hundred
seventy-six thousand dollars ($176,000) may be used for juvenile
facility inspections. The juvenile justice plan shall be developed
by the local juvenile justice coordinating council in each county and
city and county with the membership described in Section 749.22 of
the Welfare and Institutions Code. If a plan has been previously
approved by the Board of Corrections, the plan shall be reviewed and
modified annually by the council. The plan or modified plan shall be
approved by the county board of supervisors, and in the case of a
city and county, the plan shall also be approved by the mayor. The
plan or modified plan shall be submitted to the Board of Corrections
by May 1, 2002, and annually thereafter.
(A) Juvenile justice plans shall include, but not be limited to,
all of the following components:
(i) An assessment of existing law enforcement, probation,
education, mental health, health, social services, drug and alcohol,
and youth services resources that specifically target at-risk
juveniles, juvenile offenders, and their families.
(ii) An identification and prioritization of the neighborhoods,
schools, and other areas in the community that face a significant
public safety risk from juvenile crime, such as gang activity,
daylight burglary, late-night robbery, vandalism, truancy, controlled
substances sales, firearm-related violence, and juvenile substance
abuse and alcohol use.
(iii) A local juvenile justice action strategy that provides for a
continuum of responses to juvenile crime and delinquency and
demonstrates a collaborative and integrated approach for implementing
a system of swift, certain, and graduated responses for at-risk
youth and juvenile offenders.
(iv) Programs identified in clause (iii) that are proposed to be
funded pursuant to this subparagraph, including the projected amount
of funding for each program.
(B) Programs proposed to be funded shall satisfy all of the
following requirements:
(i) Be based on programs and approaches that have been
demonstrated to be effective in reducing delinquency and addressing
juvenile crime for any elements of response to juvenile crime and
delinquency, including prevention, intervention, suppression, and
incapacitation.
(ii) Collaborate and integrate services of all the resources set
forth in clause (i) of subparagraph (A), to the extent appropriate.
(iii) Employ information sharing systems to ensure that county
actions are fully coordinated, and designed to provide data for
measuring the success of juvenile justice programs and strategies.
(iv) Adopt goals related to the outcome measures that shall be
used to determine the effectiveness of the local juvenile justice
action strategy.
(C) The plan shall also identify the specific objectives of the
programs proposed for funding and specified outcome measures to
determine the effectiveness of the programs and an accounting for all
program participants, including those who do not complete the
programs. Outcome measures of the programs proposed to be funded
shall include, but not be limited to, all of the following:
(i) The rate of juvenile arrests per 100,000 population.
(ii) The rate of successful completion of probation.
(iii) The rate of successful completion of restitution and
court-ordered community service responsibilities.
(iv) Arrest, incarceration, and probation violation rates of
program participants.
(v) Quantification of the annual per capita costs of the program.
(D) The Board of Corrections shall review plans or modified plans
submitted pursuant to this paragraph within 30 days upon receipt of
submitted or resubmitted plans or modified plans. The board shall
approve only those plans or modified plans that fulfill the
requirements of this paragraph, and shall advise a submitting county
or city and county immediately upon the approval of its plan or
modified plan. The board shall offer, and provide if requested,
technical assistance to any county or city and county that submits a
plan or modified plan not in compliance with the requirements of this
paragraph. The SLESF shall only allocate funding pursuant to this
paragraph upon notification from the board that a plan or modified
plan has been approved.
(E) To assess the effectiveness of programs funded pursuant to
this paragraph using the program outcome criteria specified in
subparagraph (C), the following periodic reports shall be submitted:
(i) Each county or city and county shall report, beginning October
15, 2002, and annually each October 15 thereafter, to the county
board of supervisors and the Board of Corrections, in a format
specified by the Board of Corrections, on the programs funded
pursuant to this chapter and program outcomes as specified in
subparagraph (C).
(ii) The Board of Corrections shall compile the local reports and,
by March 15, 2003, and annually thereafter, make a report to the
Governor and the Legislature on program expenditures within each
county and city and county from the
appropriation for the purposes of this paragraph,
on the outcomes as specified in subparagraph (C) of the programs
funded pursuant to this paragraph and the statewide effectiveness of
the comprehensive multiagency juvenile justice plans.
(c) Subject to subdivision (d), for each fiscal year in which the
county, each city, the Broadmoor Police Protection District, the Bear
Valley Community Services District, the Stallion Springs Community
Services District, the Lake Shastina Community Services District, and
the Kensington Police Protection and Community Services District
receive moneys pursuant to paragraph (3) of subdivision (b), the
county, each city, and each district specified in this subdivision
shall appropriate those moneys in accordance with the following
procedures:
(1) In the case of the county, the county board of supervisors
shall appropriate existing and anticipated moneys exclusively to
provide frontline law enforcement services, other than those services
specified in paragraphs (1) and (2) of subdivision (b), in the
unincorporated areas of the county, in response to written requests
submitted to the board by the county sheriff and the district
attorney. Any request submitted pursuant to this paragraph shall
specify the frontline law enforcement needs of the requesting entity,
and those personnel, equipment, and programs that are necessary to
meet those needs. The board shall, at a public hearing held at a
time determined by the board in each year that the Legislature
appropriates funds for purposes of this chapter, or within 30 days
after a request by a recipient agency for a hearing if the funds have
been received by the county from the state prior to that request,
consider and determine each submitted request within 60 days of
receipt, pursuant to the decision of a majority of a quorum present.
The board shall consider these written requests separate and apart
from the process applicable to proposed allocations of the county
general fund.
(2) In the case of a city, the city council shall appropriate
existing and anticipated moneys exclusively to fund frontline
municipal police services, in accordance with written requests
submitted by the chief of police of that city or the chief
administrator of the law enforcement agency that provides police
services for that city. These written requests shall be acted upon
by the city council in the same manner as specified in paragraph (1)
for county appropriations.
(3) In the case of the Broadmoor Police Protection District within
the County of San Mateo, the Bear Valley Community Services District
or the Stallion Springs Community Services District within Kern
County, the Lake Shastina Community Services District within Siskiyou
County, or the Kensington Police Protection and Community Services
District within Contra Costa County, the legislative body of that
special district shall appropriate existing and anticipated moneys
exclusively to fund frontline municipal police services, in
accordance with written requests submitted by the chief administrator
of the law enforcement agency that provides police services for that
special district. These written requests shall be acted upon by the
legislative body in the same manner specified in paragraph (1) for
county appropriations.
(d) For each fiscal year in which the county, a city, or the
Broadmoor Police Protection District within the County of San Mateo,
the Bear Valley Community Services District or the Stallion Springs
Community Services District within Kern County, the Lake Shastina
Community Services District within Siskiyou County, or the Kensington
Police Protection and Community Services District within Contra
Costa County receives any moneys pursuant to this chapter, in no
event shall the governing body of any of those recipient agencies
subsequently alter any previous, valid appropriation by that body,
for that same fiscal year, of moneys allocated to the county or city
pursuant to paragraph (3) of subdivision (b).
(e) Funds received pursuant to subdivision (b) shall be expended
or encumbered in accordance with this chapter no later than June 30
of the following fiscal year. A local agency that has not met this
requirement shall remit unspent SLESF moneys to the Controller for
deposit into the General Fund.
(f) If a county, a city, a city and county, or a qualifying
special district does not comply with the requirements of this
chapter to receive an SLESF allocation, the Controller shall revert
those funds to the General Fund.
SEC. 168. Section 31520.5 of the Government Code is amended to
read:
31520.5. (a) Notwithstanding Section 31520.1, in any county
subject to Articles 6.8 (commencing with Section 31639) and 7.5
(commencing with Section 31662.2), the board of retirement may, by
majority vote, appoint, from a list of nominees submitted by a
qualified retiree organization, an alternate retired member to the
office of the eighth member, who shall serve until the expiration of
the current term of the current eighth member. Thereafter, the
alternate retired member shall be elected separately by the retired
members of the association in the same manner and at the same time as
the eighth member is elected. An organization shall be deemed to be
a "qualified retiree organization" for purposes of this subdivision
if a majority of the members of the organization are retired members
of the system.
(b) The term of office of the alternate retired member shall run
concurrently with the term of office of the eighth member. The
alternate retired member shall vote as a member of the board only in
the event the eighth member is absent from a board meeting for any
cause. If there is a vacancy with respect to the eighth member, the
alternate retired member shall fill that vacancy until a successor
qualifies. The alternate retired member shall be entitled to the
same compensation as the eighth member only if the alternate retired
member is present and acting for the eighth member during the entire
meeting.
(c) If this section is made applicable in any county, by the
appointment of an alternate eighth member, the alternate safety
member may not sit and act for the eighth member.
SEC. 169. Section 31755 of the Government Code is amended to read:
31755. (a) (1) The Board of Supervisors of Contra Costa County
may make this section, Tier Three, applicable to officers and
employees for whom it is the governing body, by adopting an ordinance
specifying the future operative date of its application.
(2) As used in this section, "Tier One" refers to the retirement
plan covering general members not covered by Section 31751.
(3) After the board of supervisors has adopted an ordinance, the
governing body of a district not governed by the board of supervisors
may make this section applicable as Tier Three to its officers and
employees on and after the future operative date it specifies.
(b) Except as otherwise provided in this section, this section
shall cover all officers and employees who are members or return to
membership in the county's Tier Two retirement system established by
Section 31751 on or after the operative date specified in the
ordinance adopted pursuant to subdivision (a), and in a district on
or after the date of its applicability thereto.
(c) (1) This section shall not cover any employee who is in, or
eligible for, Tier One or safety membership under this chapter.
(2) This section shall not cover any person who is a member of the
retirement system in the county or district on or after the
operative date of its application thereto unless and until the person
voluntarily in writing irrevocably elects coverage.
(3) This section shall not be applicable to any eligible member
who does not elect coverage, is then laid off or terminates
employment, regardless of whether voluntarily or involuntarily, and
later returns to membership employment.
(4) This section shall not be applicable to any eligible member
who does not elect coverage, then retires or becomes a deferred
member, and later returns to active membership.
(5) This section shall not be applicable to any person referred to
in subparagraph (D) of paragraph (2) of subdivision (d) who does not
elect coverage.
(d) Upon adoption of this section by the board of supervisors, the
following provisions shall become applicable:
(1) Subject to the provisions of paragraph (2) of subdivision (d),
any qualified individual county or district employee may irrevocably
elect coverage under Tier Three.
(2) (A) County or district employees who are members of the county'
s Tier Two retirement system and who have attained five years'
retirement credited service to the county or district on the
applicable date of this section, must elect Tier Three coverage in
writing within six months after that date.
(B) Persons not subject to subparagraph (A), who thereafter attain
five years' credited service in the county's Tier Two retirement
system, must elect Tier Three coverage in writing within 90 days
after attaining the five years' retirement credited service.
(C) Persons not subject to subparagraph (A) or (B), who, before
the Tier Three applicability date, elected deferred retirement under
Article 9 (commencing with Section 31700) from the county's Tier Two
retirement system, and who had at least five years' credited Tier Two
retirement service, and who thereafter while still in deferred
status return to active membership, must elect coverage in writing
within 90 days after that return.
(D) Persons not under subparagraph (A), (B), or (C), who enter or
reenter employment in the county or the district for the first time
after Tier Three is applicable thereto, and who have reciprocal
rights under Article 15 (commencing with Section 31830), and who are
otherwise eligible to elect Tier Three by virtue of their Tier Two
status and years of retirement credited service must elect Tier Three
coverage in writing within 90 days after that entry or reentry.
(e) The board may not grant a disability retirement allowance to a
person who has become a Tier Three member except as provided in
Section 31720.1. The amount of disability retirement allowances
under Tier Three shall be as set forth in Section 31727.01.
(f) Notwithstanding any other provision of this chapter, service
retirements under Tier Three shall be governed by the same provisions
that govern Tier One retirements in Contra Costa County.
(g) Notwithstanding any other provision of this chapter, Tier
Three retired members who have retired for service shall only be
entitled to cost-of-living adjustments as provided by the board of
supervisors for Tier One retired members pursuant to Article 16.5
(commencing with Section 31830).
(h) Notwithstanding any other provision of this chapter, Tier
Three retired members who have been retired for disability shall only
be entitled to cost-of-living adjustments as provided by the board
of supervisors for Tier Two retired members pursuant to Article 16.5
(commencing with Section 31830).
(i) The board of supervisors may adopt regulations to implement
the provisions of this section.
SEC. 170. Section 31762 of the Government Code is amended to read:
31762. Optional settlement 2 consists of the right to elect in
writing to have a retirement allowance paid to him or her until his
or her death, and thereafter to the person, having an insurable
interest in his or her life, as he or she nominates by written
designation duly executed and filed with the board at the time of his
or her retirement.
SEC. 171. Section 31776.3 of the Government Code is amended to
read:
31776.3. (a) Unless the implementing ordinance otherwise
provides, the balance in the participant's program account shall be
distributed to the participant in a single lump-sum payment at the
time of retirement. If requested by the participant, the payment may
be immediately deposited into a qualified tax-deferred account
established by the participant.
(b) The implementing ordinance may provide one or more of the
following optional forms of distribution for a participant's account:
(1) Substantially level installment payments over 240 months
starting with the date that the member leaves DROP. The balance in
the participant's account during the installment payout period shall
be credited with interest at the same rate, if any, as is being
credited to program accounts for currently active members. A
cost-of-living adjustment may not be made to the monthly amount being
paid pursuant to this paragraph.
(2) An annuity in a form established by the board and subject to
the applicable provisions of the Internal Revenue Code that shall be
the actuarial equivalent of the balance in the participant's program
account on the retirement date. The "actuarial equivalent" under
this paragraph shall be determined on the same basis as is used for
determining optional settlements at retirement for a member's monthly
retirement allowance.
(c) Notwithstanding any other provision of this article, a
participant, nonparticipant spouse, or beneficiary may not be
permitted to elect a distribution under this article that does not
satisfy the requirements of Section 401(a)(9) of Title 26 of the
United States Code, including the incidental death benefit
requirements of Section 401(a)(9)(G) and the regulations thereunder.
(d) The required beginning date of distributions that reflect the
entire interest of the participant shall be as follows:
(1) In the case of a lump-sum distribution to the participant, the
lump-sum payment shall be made, at the participant's option, not
later than April 1 of the calendar year following the later of the
calendar year in which the participant attains the age of 701/2 years
(or age determined by the Internal Revenue Service) or the calendar
year in which the participant terminates all employment for the
employer.
(2) In the case of a distribution to the participant in the form
of installment payments or an annuity, payment shall begin, at the
participant's option, not later than April 1 of the calendar year
following the later of the calendar year in which the participant
attains age 70 and one-half years (or age determined by the Internal
Revenue Service) or the calendar year in which the participant
terminates all employment subject to coverage by the plan.
(3) In the case of a benefit payable on account of the participant'
s death, distribution shall be paid at the option of the beneficiary,
no later than December 31 of the calendar year in which the first
anniversary of the participant's date of death occurs unless the
beneficiary is the participant's spouse in which case distributions
shall commence on or before the later of either of the following:
(A) December 31 of the calendar year immediately following the
calendar year in which the participant dies.
(B) December 31 of the calendar year in which the participant
would have attained the age of 70 and one-half years (or age
determined by the Internal Revenue Service).
SEC. 172. Section 50061 of the Government Code is amended to read:
50061. (a) The ordinance or resolution shall establish uniform
assessment rates based on the costs of providing the maintenance or
improvement by the district. The assessment shall be related to the
benefits to the property assessed. The maximum amount that may be
assessed for habitat maintenance on any lot or parcel for purposes of
paying costs incurred in 1994 for long-term maintenance of natural
habitat pursuant to this article shall not exceed twenty-five dollars
($25). For subsequent years, the maximum amount that may be
assessed for this purpose shall not exceed twenty-five dollars ($25)
increased by the percentage increase in the California Consumer Price
Index between December 1993 and December of the year prior to the
year of the assessment. The total amount assessed shall not exceed
the anticipated actual costs of the authorized maintenance of natural
habitat.
(b) Notwithstanding subdivision (a), land that is devoted
primarily to agricultural, timber, or livestock uses and that is
being used for the commercial production of agricultural, timber, or
livestock products may be subject to an assessment by a district for
the acquisition, construction, or operation and maintenance of
natural habitat pursuant to this article only if the legislative body
makes both of the following determinations:
(1) The agricultural, timber, or livestock land will be specially
benefited by the natural habitat. The determination shall identify
the nature of the benefit to the land.
(2) Agricultural, timber, or livestock uses or practices will be
eliminated in a manner that will adversely affect the habitat area or
the flora or fauna that the natural habitat is intended to protect,
or the owner of the land has agreed to the assessment. No land is
subject to an assessment until its agricultural, timber, or livestock
use is eliminated or until the owner consents to the assessment,
whichever occurs first.
(c) Division 4.5 (commencing with Section 3100) of the Streets and
Highways Code applies to proceedings in which the legislative body
determines to issue bonds or notes pursuant to Section 50068, or to
finance a long-term natural habitat maintenance program in a
district, and may be applied to any other proceedings pursuant to
this article at the discretion of the legislative body.
SEC. 173. Section 53088.2 of the Government Code is amended to
read:
53088.2. (a) Every video provider shall render reasonably
efficient service, make repairs promptly, and interrupt service only
as necessary.
(b) All video provider personnel contacting subscribers or
potential subscribers outside the office of the provider shall be
clearly identified as associated with the video provider.
(c) At the time of installation, and annually thereafter, all
video providers shall provide to all customers a written notice of
the programming offered, the prices for that programming, the
provider's installation and customer service policies, and the name,
address, and telephone number of the local franchising authority.
(d) All video providers shall have knowledgeable, qualified
company representatives available to respond to customer telephone
inquiries Monday to Friday, inclusive, excluding holidays, during
normal business hours.
(e) All video providers shall provide to customers a toll-free or
local telephone number for installation, and service, and complaint
calls. These calls shall be answered promptly by the video
providers. The city, county, or city and county may establish
standards for what constitutes promptness.
(f) All video providers shall render bills that are accurate and
understandable.
(g) All video providers shall respond to a complete outage in a
customer's service promptly. The response shall occur within 24
hours of the reporting of the outage to the provider, except in those
situations beyond the reasonable control of the video provider. A
video provider shall be deemed to respond to a complete outage when a
company representative arrives at the outage location within 24
hours and begins to resolve the problem.
(h) All video providers shall provide a minimum of 30 days'
written notice before increasing rates or deleting channels. All
video providers shall make every reasonable effort to submit the
notice to the city, county, or city and county in advance of the
distribution to customers. The 30-day notice is waived if the
increases in rates or deletion of channels were outside the control
of the video provider. In those cases the video provider shall make
reasonable efforts to provide customers with as much notice as
possible.
(i) Every video provider shall allow every residential customer
who pays his or her bill directly to the video provider at least 15
days from the date the bill for services is mailed to the customer,
to pay the listed charges unless otherwise agreed to pursuant to a
residential rental agreement establishing tenancy. Customer payments
shall be posted promptly. No video provider may terminate
residential service for nonpayment of a delinquent account unless the
video provider furnishes notice of the delinquency and impending
termination at least 15 days prior to the proposed termination. The
notice shall be mailed, postage prepaid, to the customer to whom the
service is billed. Notice shall not be mailed until the 16th day
after the date the bill for services was mailed to the customer. The
notice of delinquency and impending termination may be part of a
billing statement. No video provider may assess a late fee any
earlier than the 22nd day after the bill for service has been mailed.
(j) Every notice of termination of service pursuant to subdivision
(i) shall include all of the following information:
(1) The name and address of the customer whose account is
delinquent.
(2) The amount of the delinquency.
(3) The date by which payment is required in order to avoid
termination of service.
(4) The telephone number of a representative of the video provider
who can provide additional information and handle complaints or
initiate an investigation concerning the service and charges in
question.
Service may only be terminated on days in which the customer can
reach a representative of the video provider either in person or by
telephone.
(k) Any service terminated without good cause shall be restored
without charge for the service restoration. Good cause includes, but
is not limited to, failure to pay, payment by check for which there
are insufficient funds, theft of service, abuse of equipment or
system personnel, or other similar subscriber actions.
(l) All video providers shall issue requested refund checks
promptly, but no later than 45 days following the resolution of any
dispute, and following the return of the equipment supplied by the
video provider, if service is terminated.
(m) All video providers shall issue security or customer deposit
refund checks promptly, but no later than 45 days following the
termination of service, less any deductions permitted by law.
(n) Video providers shall not disclose the name and address of a
subscriber for commercial gain to be used in mailing lists or for
other commercial purposes not reasonably related to the conduct of
the businesses of the video providers or their affiliates, unless the
video providers have provided to the subscriber a notice, separate
or included in any other customer notice, that clearly and
conspicuously describes the subscriber's ability to prohibit the
disclosure. Video providers shall provide an address and telephone
number for a local subscriber to use without toll charge to prevent
disclosure of the subscriber's name and address.
(o) Disputes concerning the provisions of this article shall be
resolved by the city, county, or city and county in which the
customer resides. For video providers under Section 53066, the
franchising authority shall resolve disputes. All other video
providers shall register with the city in which they provide service
or, where the customers reside in an unincorporated area, in the
county in which they provide service. The registration shall include
the name of the company, its address, its officers, telephone
numbers, and customer service and complaint procedures. Counties and
cities may charge these other video providers operating in the state
a fee to cover the reasonable cost of administering this division.
(p) Nothing in this division limits any power of a city, county,
or city and county or video provider to adopt and enforce service
standards and consumer protection standards that exceed those
established in this division.
(q) The legislative body of the city, county, or city and county,
may, by ordinance, provide a schedule of penalties for the material
breach by a video provider of subdivisions (a) to (p), inclusive. No
monetary penalties shall be assessed for a material breach if the
breach is out of the reasonable control of the video provider.
Further, no monetary penalties may be imposed prior to the effective
date of this section. Any schedule of monetary penalties adopted
pursuant to this section shall in no event exceed two hundred dollars
($200) for each day of each material breach, not to exceed six
hundred dollars ($600) for each occurrence of material breach.
However, if a material breach of any of subdivisions (a) to (p),
inclusive, has occurred and the city, county, or city and county has
provided notice and a fine or penalty has been assessed, in a
subsequent material breach of the same nature occurring within 12
months, the penalties may be increased by the city, county, or city
and county to a maximum of four hundred dollars ($400) for each day
of each material breach, not to exceed one thousand two hundred
dollars ($1,200) for each occurrence of the material breach. If a
third or further material breach of the same nature occurs within
those same 12 months, and the city, county, or city and county has
provided notice and a fine or penalty has been assessed, the
penalties may be increased to a maximum of one thousand dollars
($1,000) for each day of each material breach, not to exceed three
thousand dollars ($3,000) for each occurrence of the material breach.
With respect to video providers subject to a franchise or license,
any monetary penalties assessed under this section shall be reduced
dollar for dollar to the extent any liquidated damage or penalty
provision of a current cable television ordinance, franchise
contract, or license agreement imposes a monetary obligation upon a
video provider for the same customer service failures, and no other
monetary damages may be assessed. However, this section shall in no
way affect the right of franchising authorities concerning assessment
or renewal of a cable television franchise under the provisions of
the Cable Communications Policy Act of 1984 (47 U.S.C. Sec. 521 et
seq.).
(r) If the legislative body of a city, county, or city and county
adopts a schedule of monetary penalties pursuant to subdivision (q),
the following procedures shall be followed:
(1) The city, county, or city and county shall give the video
provider written notice of any alleged material breaches of the
consumer service standards of this division and allow the video
provider at least 30 days from receipt of the notice to remedy the
specified breach.
(2) A material breach for the purposes of assessing penalties
shall be deemed to have occurred for each day, following the
expiration of the period specified in paragraph (1), that any
material breach has not
been remedied by the video provider, irrespective of the
number of customers affected.
(s) Notwithstanding subdivision (o), or any other provision of
law, this section shall not preclude a party affected by this section
from utilizing any judicial remedy available to that party without
regard to this section. Actions taken by a local legislative body,
including a franchising authority, pursuant to this section shall not
be binding upon a court of law. For this purpose a court of law may
conduct de novo review of any issues presented.
SEC. 174. Section 53895.5 of the Government Code is amended to
read:
53895.5. (a) An officer of a community redevelopment agency who
fails or refuses to make and file his or her report within 20 days
after receipt of a written notice of the failure from the Controller
shall forfeit to the state:
(1) One thousand dollars ($1,000) in the case of a community
redevelopment agency with total revenue, in the prior year, of less
than one hundred thousand dollars ($100,000), as reported in the
Controller's annual financial reports.
(2) Two thousand five hundred dollars ($2,500) in the case of a
community redevelopment agency with total revenue, in the prior year,
of at least one hundred thousand dollars ($100,000), but less than
two hundred fifty thousand dollars ($250,000), as reported in the
Controller's annual financial reports.
(3) Five thousand dollars ($5,000) in the case of a community
redevelopment agency with total revenue, in the prior year, of at
least two hundred fifty thousand dollars ($250,000), as reported in
the Controller's annual financial reports.
(b) An officer of a community redevelopment agency who fails or
refuses to make and file his or her report within 20 days after
receipt of a written notice of the failure from the Controller in the
second or more consecutive year shall forfeit to the state:
(1) Two thousand dollars ($2,000) in the case of a community
redevelopment agency with total revenue, in the prior year, of less
than one hundred thousand dollars ($100,000), as reported in the
Controller's annual financial reports.
(2) Five thousand dollars ($5,000) in the case of a community
redevelopment agency with total revenue, in the prior year, of at
least one hundred thousand dollars ($100,000), but less than two
hundred fifty thousand dollars ($250,000), as reported in the
Controller's annual financial reports.
(3) Ten thousand dollars ($10,000) in the case of a community
redevelopment agency with total revenue, in the prior year, of at
least two hundred fifty thousand dollars ($250,000), as reported in
the Controller's annual financial reports.
(c) In the case of a community redevelopment agency that fails or
refuses to make and file its report within 20 days after receipt of a
written notice of the failure from the Controller in the third or
more consecutive year, the Controller shall conduct or cause to be
conducted an independent financial audit report consistent with the
requirements of Section 33080.1 of the Health and Safety Code. The
community redevelopment agency shall reimburse the Controller for the
cost of complying with this subdivision. The community
redevelopment agency shall not use any of the funds in the Low and
Moderate Income Housing Fund to reimburse the Controller.
(d) (1) Upon the request of the Controller, the Attorney General
shall prosecute an action for the forfeiture in the name of the
people of the State of California.
(2) Upon a satisfactory showing of good cause, the Controller may
waive the penalties for late filing provided in this section.
(e) A community redevelopment agency that makes a forfeiture or
payment pursuant to this section shall still file the report required
pursuant to Section 53891.
SEC. 175. Section 54222 of the Government Code is amended to read:
54222. Any agency of the state and any local agency disposing of
surplus land shall, prior to disposing of that property, send a
written offer to sell or lease the property as follows:
(a) A written offer to sell or lease for the purpose of developing
low-and moderate-income housing shall be sent to any local public
entity as defined in Section 50079 of the Health and Safety Code,
within whose jurisdiction the surplus land is located. Housing
sponsors, as defined by Section 50074 of the Health and Safety Code,
shall, upon written request, be sent a written offer to sell or lease
surplus land for the purpose of developing low- and moderate-income
housing. All notices shall be sent by first-class mail and shall
include the location and a description of the property. With respect
to any offer to purchase or lease pursuant to this subdivision,
priority shall be given to development of the land to provide
affordable housing for lower income elderly or disabled persons or
households, and other lower income households.
(b) A written offer to sell or lease for park and recreational
purposes or open-space purposes shall be sent:
(1) To any park or recreation department of any city within which
the land may be situated.
(2) To any park or recreation department of the county within
which the land is situated.
(3) To any regional park authority having jurisdiction within the
area in which the land is situated.
(4) To the State Resources Agency or any agency which may succeed
to its powers.
(c) A written offer to sell or lease land suitable for school
facilities construction or use by a school district for open-space
purposes shall be sent to any school district in whose jurisdiction
the land is located.
(d) A written offer to sell or lease for enterprise zone purposes
any surplus property in an area designated as an enterprise zone
pursuant to Section 7073 shall be sent to the nonprofit neighborhood
enterprise association corporation in that zone.
(e) A written offer to sell or lease for the purpose of developing
property located within an infill opportunity zone designated
pursuant to Section 65088.4, or within an area covered by a transit
village plan adopted pursuant to the Transit Village Development
Planning Act of 1994 (Article 8.5 (commencing with Section 65460) of
Chapter 3 of Division 1 of Title 7), shall be sent to any county,
city, city and county, community redevelopment agency, public
transportation agency, or housing authority within whose jurisdiction
the surplus land is located.
(f) A written offer to sell or lease any surplus property in a
designated program area, as defined in subdivision (i) of Section
7082, shall be sent to the program area agent.
(g) The entity or association desiring to purchase or lease the
surplus land for any of the purposes authorized by this section shall
notify in writing the disposing agency of its intent to purchase or
lease the land within 60 days after receipt of the agency's
notification of intent to sell or lease the land.
SEC. 176. Section 63049.4 of the Government Code is amended to
read:
63049.4. (a) On and after the effective date of each sale of
tobacco assets, the state shall have no right, title, or interest in
or to the tobacco assets sold, and the tobacco assets so sold shall
be property of the special purpose trust and not of the state, the
bank board, the State Public Works Board, or the bank, and shall be
owned, received, held, and disbursed by the special purpose trust or
the trustee for the financing. None of the tobacco assets sold by
the state pursuant to this article shall be subject to garnishment,
levy, execution, attachment, or other process, writ, including, but
not limited to, a writ of mandate, or remedy in connection with the
assertion or enforcement of any debt, claim, settlement, or judgment
against the state, the bank board, the State Public Works Board, or
the bank.
On or before the effective date of any sale, the state, acting
through its Attorney General, upon direction of the bank, shall
notify the California escrow agent under the Master Settlement
Agreement and the California escrow agreement that the sold tobacco
assets have been sold to the special purpose trust and irrevocably
instruct the California escrow agent that, as of the applicable
effective date, the tobacco assets sold are to be paid directly to
the trustee for the applicable bonds of the special purpose trust.
The state pledges to and agrees with the holders of any bonds issued
by the special purpose trust that it will not amend the Master
Settlement Agreement, the memorandum of understanding, or the
California escrow agreement, or take any other action, in any way
that would alter, limit, or impair the rights to receive tobacco
assets sold to the special purpose trust pursuant to this article,
nor in any way impair the rights and remedies of bondholders or the
security for their bonds until those bonds, together with the
interest thereon and costs and expenses in connection with any action
or proceeding on behalf of the bondholders, are fully paid and
discharged. The state further pledges and agrees that it shall
enforce its rights to collect all moneys due from the participating
tobacco products manufacturers under the Master Settlement Agreement
and, in addition, shall diligently enforce the model statute as
contemplated in the Master Settlement Agreement (Article 3
(commencing with Section 104555) of Chapter 1 of Part 3 of Division
103 of the Health and Safety Code) against all tobacco product
manufacturers selling tobacco products in the state and that are not
signatories to the Master Settlement Agreement, in each case in the
manner and to the extent necessary in the judgment of the Attorney
General to collect all moneys to which the state is entitled under
the Master Settlement Agreement. The special purpose trust may
include these pledges and undertakings in its bonds. Notwithstanding
these pledges and undertaking by the state, the Attorney General may
in his or her discretion enforce any and all provisions of the
Master Settlement Agreement, without limitation.
(b) Bonds issued pursuant to this article shall not be deemed to
constitute a debt of the state or a pledge of the faith or credit of
the state, and all bonds shall contain on the face thereof a
statement to the effect that neither the faith and credit nor the
taxing power nor any other assets or revenues of the state or of any
political subdivision thereof, other than the special purpose trust,
is or shall be pledged to the payment of the principal of or the
interest on the bonds.
(c) Whether or not the bonds are of a form and character as to be
negotiable instruments under the terms of the Uniform Commercial
Code, the bonds are hereby made negotiable instruments for all
purposes, subject only to the provisions of the bonds for
registration.
(d) The special purpose trust and the bank shall be treated as
public agencies for purposes of Chapter 9 (commencing with Section
860) of Title 10 of Part 2 of the Code of Civil Procedure, and any
action or proceeding challenging the validity of any matter
authorized by this article shall be brought in accordance with, and
within the time specified in, that chapter.
(e) Notwithstanding any other provision of law, the exclusive
means to obtain review of a superior court judgment entered in an
action brought pursuant to Chapter 9 (commencing with Section 860) of
Title 10 of Part 2 of the Code of Civil Procedure to determine the
validity of any bonds to be issued, or any other contracts to be
entered into, or any other matters authorized by this article, shall
be by petition to the Supreme Court for writ of review. Any petition
shall be filed within 15 days following the notice of entry of the
superior court judgment, and no extension of that period may be
allowed. If no petition is filed within the time allowed therefor,
or the petition is denied, with or without opinion, the decision of
the superior court shall be final and enforceable as provided in
subdivision (a) of Section 870 of the Code of Civil Procedure. In
any case in which a petition has been filed within the time allowed
therefor, the Supreme Court shall make any orders, as it may deem
proper in the circumstances. If no answering party appeared in the
superior court action, the only issues that may be raised in the
petition are those related to the jurisdiction of the superior court.
SEC. 177. Section 65919 of the Government Code is amended to read:
65919. As used in this chapter, the following terms have the
following meanings:
(a) "Affected city" means a city within whose planning review area
an affected territory is located.
(b) "Affected territory" means an area of land located in the
unincorporated portion of a county that is the subject of one or more
proposed actions.
(c) "Proposed action" means a proposal to adopt or amend all or
part of a general or specific plan or to adopt or amend a zoning
ordinance, but does not include action taken by an ordinance that
became effective immediately pursuant to subdivision (b) or (d) of
Section 25123 or pursuant to Section 65858.
(d) "Planning review area" means the territory included in a
general plan or in any specific plan of a city or county. A planning
review area in the case of a city shall not extend beyond whichever
of the following includes the largest area and, in the case of a
county, shall not extend beyond the territory described in paragraph
(2) or (3), whichever includes the largest area:
(1) The area included within the sphere of influence of the city.
(2) A radius of one mile outside the boundary of the city which
area shall not include any territory within the sphere of influence
of another city.
(3) An area that is agreed upon and designated by a county and a
city within the county.
SEC. 178. Section 68085.5 of the Government Code is amended to
read:
68085.5. (a) Notwithstanding any other provision of law, the fees
and fines collected pursuant to Sections 116.390, 116.570, 116.760,
116.860, 491.150, 704.750, 708.160, 724.100, 1134, and 1161.2 of the
Code of Civil Procedure, Sections 26824, 26828, 26829, 26834, and
72059 of the Government Code, and Section 1835 of the Probate Code,
that are not part of a local revenue sharing agreement or practice
shall be deposited in a special account in the county treasury and
transmitted therefrom monthly to the Controller for deposit in the
Trial Court Trust Fund.
(b) Notwithstanding any other provision of law, the fees and fines
collected pursuant to Sections 26827.6, 26827.7, 26840.1, 26847,
26854, 26855.1, 26855.2, 26859, 27293, 71386, and 72061 of the
Government Code, Section 103470 of the Health and Safety Code,
Sections 1203.4 and 1203.45 of the Penal Code, Sections 2343, 7660,
and 13201 of the Probate Code, and Section 14607.6 of the Vehicle
Code, that are not subject to a local revenue sharing agreement or
practice, shall be deposited in a special account in the county
treasury.
(c) However, if a superior court incurs the cost or provides the
services specified in subdivision (b), the fees and fines collected
shall be transmitted from the special account in the county treasury
monthly to the Controller for deposit in the Trial Court Trust Fund.
(d) (1) Until July 1, 2005, each superior court and each county
shall maintain the distribution of revenue from the fees specified in
subdivisions (a) and (b) that is in effect pursuant to an agreement
or practice that is in place at the time this section takes effect.
(2) In order to ensure that expenditures from revenue sharing
agreements are consistent with Judicial Council fiscal and budgetary
policy, the Administrative Director of the Courts shall review and
approve all distribution of revenue agreements that are negotiated
after the effective date of this section. If approval of an
agreement negotiated after the effective date of this section is not
granted, the director shall advise the court and county of the
reasons for not granting approval and suggest modifications that will
make the agreement consistent with the Judicial Council fiscal and
budgetary policies.
(e) The Administrative Office of the Courts and the California
State Association of Counties shall jointly determine and administer
on or after January 1, 2004, and on or after January 1, 2005, all of
the following:
(1) The amount of revenue that was deposited in the Trial Court
Trust Fund pursuant to subdivisions (a) and (b) during the calendar
year that just ended.
(2) The difference between the amount specified in subdivision (c)
and thirty-one million dollars ($31,000,000).
(3) A county-by-county transfer of the amount specified in
paragraph (2) to the Trial Court Trust Fund in two equal
installments, on February 15 and May 15, in each fiscal year.
(4) Any payment to correct for an overpayment or underpayment made
for the 2003-04 fiscal year, shall be paid to the appropriate party
on or before September 15, 2004.
(5) The sum of the amounts specified in paragraphs (1) and (2) may
not exceed thirty-one million dollars ($31,000,000), and shall be
deposited in the Trial Court Trust Fund.
(f) Each superior court and each county shall provide detailed
quarterly reports of the revenues generated by the fees and fines
specified in subdivisions (a) and (b), Sections 177.5 and 1218 of the
Code of Civil Procedure, and Sections 166 and 1214.1 of the Penal
Code. The reports shall include the total amount collected and
retained by the court or county and the existing distribution of
those fees.
(g) On or before January 1, 2005, the Administrative Office of the
Courts and the California State Association of Counties shall
jointly propose to the Legislature a long-term revenue allocation
schedule, to take effect on July 1, 2005, for the fees and fines
specified in subdivisions (a) and (b), Sections 177.5 and 1218 of the
Code of Civil Procedure, and Sections 166 and 1214.1 of the Penal
Code. The revenue allocation schedule shall include provision for
any underpayment or overpayment made pursuant to this section.
(h) No other transfers of the fees and fines specified in
subdivisions (a) and (b), Sections 177.5 and 1218 of the Code of
Civil Procedure, and Sections 166 and 1214.1 of the Penal Code shall
take effect prior to July 1, 2005.
(i) Nothing in this section shall be deemed to alter or make void
the shift of responsibility for court funding from the counties to
the state.
SEC. 179. Section 68086 of the Government Code is amended to read:
68086. (a) The following provisions apply in superior court:
(1) In addition to any other fee required in civil actions or
cases, for each proceeding lasting more than one hour, a fee equal to
the actual cost of providing that service shall be charged per
one-half day of services to the parties, on a pro rata basis, for the
services of an official court reporter on the first and each
succeeding judicial day those services are provided pursuant to
Section 269 of the Code of Civil Procedure.
(2) All parties shall deposit their pro rata shares of these fees
with the clerk of the court as specified by the court, but not later
than the conclusion of each day's court session.
(3) For purposes of this section, "one-half day" means any period
of judicial time, in excess of one hour but not more than four hours,
during either the morning or afternoon court session.
(4) In addition to the fees authorized by Sections 26820.4, 26826,
72055, and 72056, a one-time fee of twenty-five dollars ($25) for
the cost of the services of an official court reporter shall be
charged upon the filing of a first paper in a civil action or
proceeding in the superior court, unless the amount demanded,
excluding attorney's fees and costs, is ten thousand dollars
($10,000) or less. No additional fee shall be charged to a party for
the cost of the services of an official court reporter in
proceedings lasting one hour or less.
(5) The costs for the services of the official court reporter
shall be recoverable as taxable costs by the prevailing party as
otherwise provided by law.
(6) The Judicial Council shall adopt rules to ensure all of the
following:
(A) That parties are given adequate and timely notice of the
availability of an official court reporter.
(B) That if an official court reporter is not available, a party
may arrange for the presence of a certified shorthand reporter to
serve as an official pro tempore reporter, the costs therefore
recoverable as provided in paragraph (5).
(C) That if the services of an official pro tempore reporter are
utilized pursuant to subparagraph (B), no other charge will be made
to the parties.
(b) The fees collected pursuant to this section shall be used only
to pay the cost for services of an official court reporter in civil
proceedings.
(c) The Judicial Council shall report on or before February 1 of
each year to the Joint Legislative Budget Committee on the total fees
collected and the total amount spent for official court reporter
services in civil proceedings in the prior fiscal year.
SEC. 180. Section 69927 of the Government Code is amended to read:
69927. (a) It is the intent of the Legislature in enacting this
section to develop a definition of the court security component of
court operations that modifies Function 8 of Rule 810 of the
California Rules of Court in a manner that will standardize billing
and accounting practices and court security plans, and identify
allowable law enforcement security costs after the operative date of
this article. It is not the intent of the Legislature to increase or
decrease the responsibility of a county for the cost of court
operations, as defined in Section 77003 or Rule 810 of the California
Rules of Court, as it read on July 1, 1996, for court security
services provided prior to January 1, 2003. It is the intent of the
Legislature that a sheriff or marshal's court law enforcement budget
may not be reduced as a result of this article. Any new court
security costs permitted by this article shall not be operative
unless the funding is provided by the Legislature.
(1) The Judicial Council shall adopt a rule establishing a working
group on court security. The group shall consist of six
representatives from the judicial branch of government, as selected
by the Administrative Director of the Courts, two representatives of
the counties, as selected by the California State Association of
Counties, and three representatives of the county sheriffs, as
selected by the California State Sheriffs' Association. It is the
intent of the Legislature that this working group may recommend
modifications only to the template used to determine that the
security costs submitted by the courts to the Administrative Office
of the Courts are permitted pursuant to this article. The template
shall be a part of the trial court's financial policies and
procedures manual and used in place of the definition of law
enforcement costs in Function 8 of Rule 810 of the California Rules
of Court. If the working group determines that there is a need to
make recommendations to the template that specifically involve law
enforcement or security personnel in courtrooms or court detention
facilities, the membership of the working group shall change and
consist of six representatives from the judicial branch of government
selected by the Administrative Director of the Courts, two
representatives of the counties selected by the California State
Association of Counties, two representatives of the county sheriffs
selected by the California State Sheriffs' Association, and two
representatives of labor selected by the California Coalition of Law
Enforcement Associations.
(2) The Judicial Council shall establish a working group on court
security to promulgate recommended uniform standards and guidelines
that may be used by the Judicial Council and any sheriff or marshal
for the implementation of trial court security services. The working
group shall consist of representatives from the judicial branch of
government, the California State Sheriffs' Association, the
California State Association of Counties, the Peace Officer's
Research Association of California, and the California Coalition of
Law Enforcement Associations, for the purpose of developing
guidelines. The Judicial Council, after requesting and receiving
recommendations from the working group on court security, shall
promulgate and implement rules, standards, and policy directions for
the trial courts in order to achieve efficiencies that will reduce
security operating costs and constrain growth in those costs.
(3) When mutually agreed to by the courts, county, and the sheriff
or marshal in any county, the costs of perimeter security in any
building that the court shares with any county agency, excluding the
sheriff or marshal's department, shall be apportioned based on the
amount of the total noncommon square feet of space occupied by the
court and any county agency.
(4) "Allowable costs for equipment, services, and supplies," as
defined in the contract law enforcement template, means the purchase
and maintenance of security screening equipment and the costs of
ammunition, batons, bulletproof vests, handcuffs, holsters, leather
gear, chemical spray and holders, radios, radio chargers and holders,
uniforms, and one primary duty sidearm.
(5) "Allowable costs for professional support staff for court
security operations," as defined in the contract law enforcement
template, means the salary, benefits, and overtime of staff
performing support functions that, at a minimum, provide payroll,
human resources, information systems, accounting, or budgeting.
Allowable costs for professional support staff for court security
operations in each trial court shall not exceed 6 percent of total
allowable costs for law enforcement security personnel services in
courts with total allowable costs for law enforcement security
personnel services less than ten million dollars ($10,000,000) per
year. Allowable costs for professional support staff for court
security operations for each trial court shall not exceed 4 percent
of total allowable costs for law enforcement security personnel
services in courts with total allowable costs for law enforcement
security personnel services exceeding ten million dollars
($10,000,000) per year. Additional costs for services related to
court-mandated special project support, beyond those provided for in
the contract law enforcement template, are allowable only when
negotiated by the trial court and the court law enforcement provider.
Allowable costs shall not exceed actual costs of providing support
staff services for law enforcement security personnel services.
The
working group established pursuant to paragraph (1) of subdivision
(a) may periodically recommend changes to the limit for allowable
costs for professional support staff for court security operations
based on surveys of actual expenditures incurred by trial courts and
the court law enforcement provider in the provision of law
enforcement security personnel services. Limits for allowable costs
as stated in this section shall remain in effect until changes are
recommended by the working group and adopted by the Judicial Council.
(6) "Allowable costs for security personnel services," as defined
in the contract law enforcement template, means the salary and
benefits of an employee, including, but not limited to, county health
and welfare, county incentive payments, deferred compensation plan
costs, FICA or Medicare, general liability premium costs, leave
balance payout commensurate with an employee's time in court security
services as a proportion of total service credit earned after
January 1, 1998, premium pay, retirement, state disability insurance,
unemployment insurance costs, worker's compensation paid to an
employee in lieu of salary, worker's compensation premiums of
supervisory security personnel through the rank of captain, line
personnel, inclusive of deputies, court attendants, contractual law
enforcement services, prisoner escorts within the courts, and weapons
screening personnel, court required training, and overtime and
related benefits of law enforcement supervisory and line personnel.
(A) The Administrative Office of the Courts shall use the actual
salary and benefits costs approved for court law enforcement
personnel as of June 30 of each year in determining the funding
request that will be presented to the Department of Finance.
(B) Courts and court security providers shall manage their
resources to minimize the use of overtime.
(7) "Allowable costs for vehicle use for court security needs," as
defined in the contract law enforcement template, means the per-mile
recovery cost for vehicles used in rendering court law enforcement
services, exclusive of prisoner or detainee transport to or from
court. The standard mileage rate applied against the miles driven
for the above shall be the standard reimbursable mileage rate in
effect for judicial officers and employees at the time of contract
development.
(b) Nothing in this article may increase a county's obligation or
require any county to assume the responsibility for a cost of any
service that was defined as a court operation cost, as defined by
Function 8 of Rule 810 of the California Rules of Court, as it read
on July 1, 1996, or that meets the definition of any new law
enforcement component developed pursuant to this article.
SEC. 181. Section 71806 of the Government Code is amended to read:
71806. (a) At the conclusion of the regional transition period,
trial courts in the region may employ certified and registered
interpreters to perform spoken language interpretation for the trial
courts in full-time or part-time court interpreter positions created
by the trial courts with the authorization of the regional committee
and subject to meet and confer in good faith. The courts may also
continue to employ court interpreters pro tempore.
(b) For purposes of hiring interpreters for positions other than
court interpreters pro tempore, unless otherwise provided in a
memorandum of understanding or agreement with a recognized employee
organization, trial courts shall consider applicants in the following
order of priority:
(1) Court interpreters pro tempore in the same language who have
performed work for that trial court for at least 150 court days or
parts of court days during each of the past five years, including
time spent performing work for the trial court as an independent
contractor.
(2) Court interpreters pro tempore in the same language who have
performed work for that trial court for at least 60 court days or
parts of court days in each of the past five years, including time
spent performing work for the trial court as an independent
contractor.
(3) Court interpreters pro tempore in the same language who have
performed work for that trial court for at least 60 court days or
parts of court days in at least two of the past four years, including
time spent as an independent contractor.
(4) Other applicants.
(c) A trial court may not reject an applicant in favor of an
applicant with lower priority except for cause.
(d) For purposes of this section, "for cause" means a fair and
honest cause or reason regulated by good faith on the part of the
party exercising the power.
(e) Applicants may be required to provide sufficient documentation
to establish that they are entitled to priority in hiring. Trial
courts shall make their records of past assignments available to
interpreters for purposes of obtaining that documentation.
(f) Unless the parties to a dispute agree upon other procedures
after the dispute arises, or other procedures are provided in a
memorandum of understanding or agreement with a recognized employee
organization, disputes about whether this section has been violated
shall be resolved by binding arbitration through the California State
Mediation and Conciliation Service.
(g) Subdivision (b) shall become inoperative on January 1, 2007,
unless otherwise provided by a memorandum of understanding or
agreement with a recognized employee organization, and on and after
that time hiring shall be in accordance with the personnel rules of
the trial court.
SEC. 182. Section 71828 of the Government Code is amended to read:
71828. (a) This chapter does not apply to trial courts in Solano
and Ventura Counties. Labor and employment relations for court
interpreters employed by trial courts in Solano and Ventura Counties
shall remain subject to the Trial Court Employment Protection and
Governance Act (Chapter 7 (commencing with Section 71600)), and
nothing in this chapter shall be construed to affect the application
of that act to court interpreters employed by those counties.
(b) If an interpreter employed by a trial court in a different
county accepts a temporary appointment to perform services for a
trial court in Solano or Ventura County, the interpreter shall be
treated for purposes of compensation, employee benefits, seniority,
and discipline and grievance procedures, as having performed the
services in the trial court in which the interpreter is employed.
(c) If an interpreter employed by a trial court in Solano or
Ventura County accepts a temporary appointment to perform services
for another trial court, the interpreter shall be treated for
purposes of compensation, employee benefits, seniority, and
discipline and grievance procedures, as having performed the services
in the trial court in which the interpreter is employed.
(d) This chapter also does not apply to court interpreters who
have been continuously employed by a trial court in any county
beginning prior to September 1, 2002, and who are covered by a
memorandum of understanding or agreement entered into pursuant to the
Trial Court Employment Protection and Governance Act (Chapter 7
(commencing with Section 71600)), and to future employees hired in
the same positions as replacements for those employees. For any other
certified or registered interpreters hired by trial courts as
employees prior to December 31, 2002, the trial courts may not change
existing job classifications and may not reduce their wages and
benefits during the regional transition period or during the term of
an existing contract, whichever is longer.
SEC. 183. Section 77202 of the Government Code is amended to read:
77202. (a) The Legislature shall make an annual appropriation to
the Judicial Council for the general operations of the trial courts
based on the request of the Judicial Council. The Judicial Council's
trial court budget request shall meet the needs of all trial courts
in a manner that promotes equal access to the courts statewide. The
Judicial Council shall allocate the appropriation to the trial courts
in a manner that best ensures the ability of the courts to carry out
their functions, promotes implementation of statewide policies, and
promotes the immediate implementation of efficiencies and cost-saving
measures in court operations, in order to guarantee access to
justice to citizens of the state.
The Judicial Council shall ensure that its trial court budget
request and the allocations made by it reward each trial court's
implementation of efficiencies and cost-saving measures.
These efficiencies and cost-saving measures shall include, but not
be limited to, the following:
(1) The sharing or merger of court support staff among trial
courts across counties.
(2) The assignment of any type of case to a judge for all purposes
commencing with the filing of the case and regardless of
jurisdictional boundaries.
(3) The establishment of a separate calendar or division to hear a
particular type of case.
(4) In rural counties, the use of all court facilities for
hearings and trials of all types of cases and the acceptance of
filing documents in any case.
(5) The use of alternative dispute resolution programs, such as
arbitration.
(6) The development and use of automated accounting and
case-processing systems.
(b) (1) The Judicial Council shall adopt policies and procedures
governing practices and procedures for budgeting in the trial courts
in a manner that best ensures the ability of the courts to carry out
their functions and may delegate the adoption to the Administrative
Director of the Courts. The Administrative Director of the Courts
shall establish budget procedures and an annual schedule of budget
development and management consistent with these rules.
(2) The Trial Court Policies and Procedures shall specify the
process for a court to transfer existing funds between or among the
budgeted program components to reflect changes in the court's planned
operation or to correct technical errors. If the process requires a
trial court to request approval of a specific transfer of existing
funds, the Administrative Office of the Courts shall review the
request to transfer funds and respond within 30 days of receipt of
the request. The Administrative Office of the Courts shall respond
to the request for approval or denial to the affected court, in
writing, with copies provided to the Department of Finance, the
Legislative Analyst's Office, the Legislature's budget committees,
and the court's affected labor organizations.
(3) The Judicial Council shall circulate for comment to all
affected entities any amendments proposed to the Trial Court Policies
and Procedures as they relate to budget monitoring and reporting.
Final changes shall be adopted at a meeting of the Judicial Council.
SEC. 184. Section 95000 of the Government Code, as added by
Section 4 of Chapter 945 of the Statutes of 1993, is amended to read:
95000. The Legislature finds that disabled and high-risk infants
now survive the newborn period due to greatly improved surgical and
medical care services. However, in many communities, services that
provide the careful nurturing and stimulation that these infants need
to develop to their potential are not available. The Legislature
hereby finds and declares that individualized early intervention
services for infants who are at high risk or who have a disabling
condition, and for their families, which provide educational,
developmental, health, and social services with active parent
involvement, can significantly reduce the potential impact of many
disabling conditions and positively influence later development when
the child reaches school age.
The Legislature further finds that infants have unique needs and
therefore require both a unique service delivery model, which may be
different from any system currently in place in California, and
unique program and personnel standards specific to the needs of
infants who are at high risk or who have a disabling condition and
their families.
The Legislature further acknowledges that early intervention
services are cost effective in that these services frequently make
productive citizens of children and eliminate the far greater costs
of long-term remedial treatment for, and unnecessary lifelong
dependency on, others.
SEC. 185. Section 138.6 of the Health and Safety Code is amended
to read:
138.6. (a) The department shall include in any literature that it
produces regarding breast cancer information that shall include, but
not be limited to, all of the following:
(1) Summarized information on risk factors for breast cancer in
younger women, including, but not limited to, information on the
increased risk associated with a family history of the disease.
(2) Summarized information regarding detection alternatives to
mammography that may be available and more effective for at-risk
women between the ages of 25 and 40 years.
(3) Information on Internet Web sites of relevant organizations,
government agencies, and research institutions where information on
mammography alternatives may be obtained.
(b) The information required by subdivision (a) shall be produced
consistent with the department's protocols and procedures regarding
the production and dissemination of information on breast cancer,
including, but not limited to, the following factors:
(1) Restrictions imposed by space limitation on materials
currently produced and distributed by the department.
(2) Future regular production and replacement schedules.
(3) Translation standards governing the number of languages and
literacy levels.
(4) The nature, content, and purpose of the material into which
this new information will be incorporated.
(c) It is the intent of the Legislature that subdivisions (a) and
(b) apply to information that is distributed by any branch of the
department, including, but not limited to, the Cancer Detection
Section and the Office of Women's Health, which are charged with
providing information about cancer.
SEC. 186. Section 444.20 of the Health and Safety Code is amended
to read:
444.20. The Legislature finds and declares all of the following:
(a) The health care delivery system continues to undergo rapid and
dramatic change. Health care services are provided by a variety of
managed care structures, including health maintenance organizations
(HMOs), preferred provider organizations (PPOs), and an array of
hybrid models that have elements of traditional fee-for-service and
indemnity systems while applying managed care's utilization
management, gatekeeper, and case management techniques. As a result
of these changes, many consumers are confused about how managed care
works or have problems navigating the health care system.
(b) The Health Rights Hotline operates in the Sacramento area to
help all health care consumers. The program's goals are to provide
an independent source of information and help for health care
consumers, to collect needed information regarding health care
consumers' problems, and to advocate for health care system
improvements for all consumers. The program is independent from, but
works in close collaboration with, health plans, providers,
purchasers, insurance agents and brokers, consumer groups, and
regulators. The program also works with the local Health Insurance
Counseling and Advocacy Program, which serves Medicare beneficiaries
and those imminent of becoming eligible for Medicare statewide.
(c) The program educates consumers about their health care rights
and responsibilities. It also assists consumers with questions about
their health plans and with specific problems through hotline and
in-person services. In addition, the program collects and analyzes
information, generated both by consumers' use of the program and from
other sources, that can identify the strengths and weaknesses of
particular plans, provider groups, and delivery systems. The program
has informed health plans, providers, purchasers, consumers,
regulators, and the Legislature about how independent support can be
provided to consumers in managed care.
(d) Maintaining consumer confidence is a paramount concern in the
operation of the program. While one vehicle to protect these
communications would be to establish attorney-client relationships
with consumers served, the program is generally not designed as a
"legal" program and it would undercut its collaborative strategy and
problem-solving orientation if assistance were required to be
positioned in a legal context. Furthermore, it is critical that
consumers using the program are free from any retribution.
(e) The Health Consumer Alliance, a partnership of independent,
nonprofit legal services agencies, includes seven local health
consumer assistance programs in the Counties of Alameda, Fresno, Los
Angeles, Orange, San Diego, San Francisco, and San Mateo. These
seven Health Consumer Centers help low-income consumers receive
necessary health care through education, training, and advocacy, and
analysis of systemic health access issues.
(f) The Health Insurance Counseling and Advocacy Program (HICAP)
provides Medicare beneficiaries and those imminent of becoming
eligible for Medicare with counseling and advocacy services on a
statewide basis. HICAP offers information and assistance regarding
Medicare, managed health care, health and long-term care related life
and disability insurance, and related health care coverage plans.
SEC. 187. Section 1255 of the Health and Safety Code is amended to
read:
1255. In addition to the basic services offered under the
license, a general acute care hospital may be approved in accordance
with subdivision (c) of Section 1277 to offer special services,
including, but not limited to, the following:
(a) Radiation therapy department.
(b) Burn center.
(c) Emergency center.
(d) Hemodialysis center (or unit).
(e) Psychiatric.
(f) Intensive care newborn nursery.
(g) Cardiac surgery.
(h) Cardiac catheterization laboratory.
(i) Renal transplant.
(j) Other special services as the department may prescribe by
regulation.
A general acute care hospital that exclusively provides acute
medical rehabilitation center services may be approved in accordance
with subdivision (b) of Section 1277 to offer special services not
requiring surgical facilities.
The state department shall adopt standards for special services
and other regulations as may be necessary to implement this section.
For cardiac catheterization laboratory service, the state department
shall, at a minimum, adopt standards and regulations that specify
that only diagnostic services, and what diagnostic services, may be
offered by an acute care hospital or a multispecialty clinic as
defined in subdivision (l) of Section 1206 that is approved to
provide cardiac catheterization laboratory service but is not also
approved to provide cardiac surgery service, together with the
conditions under which the cardiac catheterization laboratory service
may be offered.
A cardiac catheterization laboratory service shall be located in a
general acute care hospital that is either licensed to perform
cardiovascular procedures requiring extracorporeal coronary artery
bypass that meets all of the applicable licensing requirements
relating to staff, equipment, and space for service, or shall, at a
minimum, have a licensed intensive care service and coronary care
service and maintain a written agreement for the transfer of patients
to a general acute care hospital that is licensed for cardiac
surgery or shall be located in a multispecialty clinic as defined in
subdivision (l) of Section 1206. The transfer agreement shall
include protocols that will minimize the need for duplicative cardiac
catheterizations at the hospital in which the cardiac surgery is to
be performed.
For purposes of this section, "multispecialty clinic," as defined
in subdivision (l) of Section 1206, includes an entity in which the
multispecialty clinic holds at least a 50-percent general partner
interest and maintains responsibility for the management of the
service, if all of the following requirements are met:
(1) The multispecialty clinic existed as of March 1, 1983.
(2) Prior to March 1, 1985, the multispecialty clinic did not
offer cardiac catheterization services, dynamic multiplane imaging,
or other types of coronary or similar angiography.
(3) The multispecialty clinic creates only one entity that
operates its service at one site.
(4) These entities shall have the equipment and procedures
necessary for the stabilization of patients in emergency situations
prior to transfer and patient transfer arrangements in emergency
situations that shall be in accordance with the standards established
by the Emergency Medical Services Authority, including the
availability of comprehensive care and the qualifications of any
general acute care hospital expected to provide emergency treatment.
Except as provided in Sections 128525 and 128530, under no
circumstances shall cardiac catheterizations be performed outside of
a general acute care hospital or a multispecialty clinic, as defined
in subdivision (l) of Section 1206, that qualifies for this
definition as of March 1, 1983.
SEC. 188. Section 1367.04 of the Health and Safety Code is amended
to read:
1367.04. (a) Not later than January 1, 2006, the department shall
develop and adopt regulations establishing standards and
requirements to provide health care service plan enrollees with
appropriate access to language assistance in obtaining health care
services.
(b) In developing the regulations, the department shall require
every health care service plan and specialized health care service
plan to assess the linguistic needs of the enrollee population,
excluding Medi-Cal enrollees, and to provide for translation and
interpretation for medical services, as indicated. A health care
service plan that participates in the Healthy Families Program may
assess the Healthy Families Program enrollee population separately
from the remainder of its enrollee population for purposes of
subparagraph (A) of paragraph (1). A health care service plan that
chooses to separate its Healthy Families Program enrollment from the
remainder of its enrollee population shall treat the Healthy Families
Program population separately for purposes of determining whether
subparagraph (A) of paragraph (1) is applicable, and shall also treat
the Healthy Families Program population separately for purposes of
applying the percentage and numerical thresholds in subparagraph (A)
of paragraph (1). The regulations shall include the following:
(1) Requirements for the translation of vital documents that
include the following:
(A) A requirement that all vital documents, as defined pursuant to
subparagraph (B), be translated into an indicated language, as
follows:
(i) A health care service plan with an enrollment of 1,000,000 or
more shall translate vital documents into the top two languages other
than English as determined by the needs assessment as required by
this subdivision and any additional languages when 0.75 percent or
15,000 of the enrollee population, whichever number is less,
excluding Medi-Cal enrollment and treating Healthy Families Program
enrollment separately indicates in the needs assessment as required
by this subdivision a preference for written materials in that
language.
(ii) A health care service plan with an enrollment of 300,000 or
more but less than 1,000,000 shall translate vital documents into the
top one language other than English as determined by the needs
assessment as required by this subdivision and any additional
languages when 1 percent or 6,000 of the enrollee population,
whichever number is less, excluding Medi-Cal enrollment and treating
Healthy Families Program enrollment separately indicates in the needs
assessment as required by this subdivision a preference for written
materials in that language.
(iii) A health care service plan with an enrollment of less than
300,000 shall translate vital documents into a language other than
English when 3,000 or more or 5 percent of the enrollee population,
whichever number is less, excluding Medi-Cal enrollment and treating
Healthy Families Program enrollment separately indicates in the needs
assessment as required by this subdivision a preference for written
materials in that language.
(B) Specification of vital documents produced by the plan that are
required to be translated. The specification of vital documents
shall not exceed that of the Department of Health and Human Services
(HHS) Office of Civil Rights (OCR) Policy Guidance (65 Federal
Register 52762 (August 30, 2000)), but shall include all of the
following:
(i) Applications.
(ii) Consent forms.
(iii) Letters containing important information regarding
eligibility and participation criteria.
(iv) Notices pertaining to the denial, reduction, modification, or
termination of services and benefits, and the right to file a
grievance or appeal.
(v) Notices advising limited-English-proficient persons of the
availability of free language assistance and other outreach materials
that are provided to enrollees.
(vi) Translated documents shall not include a health care service
plan's explanation of benefits or similar claim processing
information that is sent to enrollees, unless the document requires a
response by the enrollee.
(C) (i) For those documents described in subparagraph (B) that are
not standardized but contain enrollee specific information, health
care service plans shall not be required to translate the documents
into the threshold languages identified by the needs assessment as
required by this subdivision, but rather shall include with the
documents a written notice of the availability of interpretation
services in the threshold languages identified by the needs
assessment as required by this subdivision.
(ii) Upon request, the enrollee shall receive a written
translation of the documents described in clause (i). The health
care service plan shall have up to, but not to exceed, 21 days to
comply with the enrollee's request for a written translation. If an
enrollee requests a translated document, all timeframes and deadline
requirements related to the document that apply to the health care
service plan and enrollees under the provisions of this chapter and
under any regulations adopted pursuant to this chapter shall begin to
run upon the health care service plan's issuance of the translated
document.
(iii)
For grievances that require expedited plan review and response in
accordance with subdivision (b) of Section 1368.01, the health care
service plan may satisfy this requirement by providing notice of the
availability and access to oral interpretation services.
(D) A requirement that health care service plans advise
limited-English-proficient enrollees of the availability of
interpreter services.
(2) Standards to ensure the quality and accuracy of the written
translations and that a translated document meets the same standards
required for the English language version of the document. The
English language documents shall determine the rights and obligations
of the parties, and the translated documents shall be admissible in
evidence only if there is a dispute regarding a substantial
difference in the material terms and conditions of the English
language document and the translated document.
(3) Requirements for surveying the language preferences and needs
assessments of health care service plan enrollees within one year of
the effective date of the regulations that permit health care service
plans to utilize various survey methods, including, but not limited
to, the use of existing enrollment and renewal processes, subscriber
newsletters, or other mailings. Health care service plans shall
update the needs assessment, demographic profile, and language
translation requirements every three years.
(4) Requirements for individual enrollee access to interpretation
services.
(5) Standards to ensure the quality and timeliness of oral
interpretation services provided by health care service plans.
(c) In developing the regulations, standards, and requirements,
the department shall consider the following:
(1) Publications and standards issued by federal agencies, such as
the Culturally and Linguistically Appropriate Services (CLAS) in
Health Care issued by the United States Department of Health and
Human Services Office of Minority Health in December 2000, and the
Department of Health and Human Services (HHS) Office of Civil Rights
(OCR) Policy Guidance (65 Federal Register 52762 (August 30, 2000)).
(2) Other cultural and linguistic requirements under state
programs, such as Medi-Cal Managed Care Policy Letters, cultural and
linguistic requirements imposed by the State Department of Health
Services on health care service plans that contract to provide
Medi-Cal managed care services, and cultural and linguistic
requirements imposed by the Managed Risk Medical Insurance Board on
health care service plans that contract to provide services in the
Healthy Families Program.
(3) Standards adopted by other states pertaining to language
assistance requirements for health care service plans.
(4) Standards established by California or nationally recognized
accrediting, certifying, or licensing organizations and medical and
health care interpreter professional associations regarding
interpretation services.
(5) Publications, guidelines, reports, and recommendations issued
by state agencies or advisory committees, such as the report card to
the public on the comparative performance of plans and reports on
cultural and linguistic services issued by the Office of Patient
Advocate and the report to the Legislature from the Task Force on
Culturally and Linguistically Competent Physicians and Dentists
established by Section 852 of the Business and Professions Code.
(6) Examples of best practices relating to language assistance
services by health care providers and health care service plans,
including existing practices.
(7) Information gathered from complaints to the HMO Helpline and
consumer assistance centers regarding language assistance services.
(8) The cost of compliance and the availability of translation and
interpretation services and professionals.
(9) Flexibility to accommodate variations in plan networks and
method of service delivery. The department shall allow for health
care service plan flexibility in determining compliance with the
standards for oral and written interpretation services.
(d) The department shall work to ensure that the biennial reports
required by this section, and the data collected for those reports,
are consistent with reports required by government-sponsored programs
and do not require duplicative or conflicting data collection or
reporting.
(e) The department shall seek public input from a wide range of
interested parties through the Advisory Committee on Managed Health
Care or other advisory bodies established by the director.
(f) A contract between a health care service plan and a health
care provider shall require compliance with the standards developed
under this section. In furtherance of this section, the contract
shall require providers to cooperate with the plan by providing any
information necessary to assess compliance.
(g) The department shall report biennially to the Legislature and
the Advisory Committee on Managed Health Care, or other advisory
bodies established by the director, regarding plan compliance with
the standards, including results of compliance audits made in
conjunction with other audits and reviews. The reported information
shall also be included in the publication required under subparagraph
(B) of paragraph (3) of subdivision (c) of Section 1368.02. The
department shall also utilize the reported information to make
recommendations for changes that further enhance standards pursuant
to this section. The department may also delay or otherwise phase-in
implementation of standards and requirements in recognition of costs
and availability of translation and interpretation services and
professionals.
(h) (1) Except for contracts with the State Department of Health
Services Medi-Cal program, the standards developed under this section
shall be considered the minimum required for compliance.
(2) The regulations shall provide that a health plan is in
compliance if the plan is required to meet the same or similar
standards by the Medi-Cal program, either by contract or state law,
if the standards provide as much access to cultural and linguistic
services as the standards established by this section for an equal or
higher number of enrollees and therefore meet or exceed the
standards of the regulations established pursuant to this section,
and the department determines that the health care service plan is in
compliance with the standards required by the Medi-Cal program. To
meet this requirement, the department shall not be required to
perform individual audits. The department shall, to the extent
feasible, rely on audits, reports, or other oversight and enforcement
methods used by the State Department of Health Services.
(3) The determination pursuant to paragraph (2) shall only apply
to the enrollees covered by the Medi-Cal program standards. A health
care service plan subject to paragraph (2) shall comply with the
standards established by this section with regard to enrollees not
covered by the Medi-Cal program.
(i) Nothing in this section shall prohibit a government purchaser
from including in their contracts additional translation or
interpretation requirements, to meet linguistic or cultural needs,
beyond those set forth pursuant to this section.
SEC. 189. Section 1375.7 of the Health and Safety Code is amended
to read:
1375.7. (a) This section shall be known and may be cited as the
Health Care Providers' Bill of Rights.
(b) No contract issued, amended, or renewed on or after January 1,
2003, between a plan and a health care provider for the provision of
health care services to a plan enrollee or subscriber shall contain
any of the following terms:
(1) (A) Authority for the plan to change a material term of the
contract, unless the change has first been negotiated and agreed to
by the provider and the plan or the change is necessary to comply
with state or federal law or regulations or any accreditation
requirements of a private sector accreditation organization. If a
change is made by amending a manual, policy, or procedure document
referenced in the contract, the plan shall provide 45 business days'
notice to the provider, and the provider has the right to negotiate
and agree to the change. If the plan and the provider cannot agree
to the change to a manual, policy, or procedure document, the
provider has the right to terminate the contract prior to the
implementation of the change. In any event, the plan shall provide
at least 45 business days' notice of its intent to change a material
term, unless a change in state or federal law or regulations or any
accreditation requirements of a private sector accreditation
organization require a shorter timeframe for compliance. However, if
the parties mutually agree, the 45-business day notice requirement
may be waived. Nothing in this subparagraph limits the ability of
the parties to mutually agree to the proposed change at any time
after the provider has received notice of the proposed change.
(B) If a contract between a provider and a plan provides benefits
to enrollees or subscribers through a preferred provider arrangement,
the contract may contain provisions permitting a material change to
the contract by the plan if the plan provides at least 45 business
days' notice to the provider of the change and the provider has the
right to terminate the contract prior to the implementation of the
change.
(2) A provision that requires a health care provider to accept
additional patients beyond the contracted number or in the absence of
a number if, in the reasonable professional judgment of the
provider, accepting additional patients would endanger patients'
access to, or continuity of, care.
(3) A requirement to comply with quality improvement or
utilization management programs or procedures of a plan, unless the
requirement is fully disclosed to the health care provider at least
15 business days prior to the provider executing the contract.
However, the plan may make a change to the quality improvement or
utilization management programs or procedures at any time if the
change is necessary to comply with state or federal law or
regulations or any accreditation requirements of a private sector
accreditation organization. A change to the quality improvement or
utilization management programs or procedures shall be made pursuant
to paragraph (1).
(4) A provision that waives or conflicts with any provision of
this chapter. A provision in the contract that allows the plan to
provide professional liability or other coverage or to assume the
cost of defending the provider in an action relating to professional
liability or other action is not in conflict with, or in violation
of, this chapter.
(5) A requirement to permit access to patient information in
violation of federal or state laws concerning the confidentiality of
patient information.
(c) (1) When a contracting agent sells, leases, or transfers a
health provider's contract to a payor, the rights and obligations of
the provider shall be governed by the underlying contract between the
health care provider and the contracting agent.
(2) For purposes of this subdivision, the following terms shall
have the following meanings:
(A) "Contracting agent" has the meaning set forth in paragraph (2)
of subdivision (d) of Section 1395.6.
(B) "Payor" has the meaning set forth in paragraph (3) of
subdivision (d) of Section 1395.6.
(d) Any contract provision that violates subdivision (b) or (c)
shall be void, unlawful, and unenforceable.
(e) The department shall compile the information submitted by
plans pursuant to subdivision (h) of Section 1367 into a report and
submit the report to the Governor and the Legislature by March 15 of
each calendar year.
(f) Nothing in this section shall be construed or applied as
setting the rate of payment to be included in contracts between plans
and health care providers.
(g) For purposes of this section the following definitions apply:
(1) "Health care provider" means any professional person, medical
group, independent practice association, organization, health
facility, or other person or institution licensed or authorized by
the state to deliver or furnish health services.
(2) "Material" means a provision in a contract to which a
reasonable person would attach importance in determining the action
to be taken upon the provision.
SEC. 190. Section 1569.30 of the Health and Safety Code is amended
to read:
1569.30. (a) The department shall adopt, amend, or repeal, in
accordance with Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code, reasonable rules,
regulations, and standards as may be necessary or proper to carry out
the purposes and intent of this chapter and to enable the department
to exercise the powers and perform the duties conferred upon it by
this chapter, not inconsistent with any statute of this state.
(b) The regulations governing residential facilities for the
elderly under the Community Care Facilities Act (Chapter 3
(commencing with Section 1500)) shall continue to govern residential
care facilities for the elderly under this act until amended or
repealed.
SEC. 191. Section 1569.70 of the Health and Safety Code is amended
to read:
1569.70. It is the intent of the Legislature to develop and
implement a plan to establish three levels of care under the
residential care facility for the elderly license, subject to future
Budget Act appropriations and statutory authorization to implement
levels of care.
(a) The guidelines for the development of these levels of care
are:
(1) Level I--Base care and supervision. Residents at this level
are able to maintain a higher degree of independence and need only
minimum care and supervision, as defined, and minimal personal care
assistance.
(2) Level II--Nonmedical personal care. Residents at this level
have functional limitations and psychosocial needs requiring not only
care and supervision but frequent assistance with personal
activities of daily living and active intervention to help them
maintain their potential for independent living.
(3) Level III--Health related assistance. Residents at this level
require the services of lower levels and rely on the facility for
extensive assistance with personal activities of daily living. This
level may include residents who also require the occasional services
of an appropriate skilled professional due to chronic health problems
and returning residents recovering from illness, injury, or
treatment that required placement in facilities providing higher
levels of care.
These levels are to be based on the services required by residents
at each level due to their functional limitations.
(b) The levels of care plan shall include:
(1) Guidelines for meeting requirements at each level of care by
utilizing appropriate community and professional services. Options
shall be provided to allow facilities to meet resident needs by
accessing community services or hiring appropriate staff.
(2) Assessment procedures for facility evaluation of residents'
level of care needs.
(3) Process for ensuring the individual facility's ability to
serve clients at each level of care they intend to provide.
(4) Recommendations for a supplemental rate structure based on the
services required at Levels II and III to be provided for residents
who need those levels of care and are recipients of SSI/SSP. These
rates shall be in addition to the basic SSI/SSP rate for providing
care supervision and shall reflect actual costs of operation for
residential care facilities for the elderly.
(5) Procedures for assessment and certification of SSI/SSP
recipients, by county social services departments to allow for
administration of the supplemental rate structure.
(6) Procedures for evaluating and monitoring the appropriateness
of the levels of care determined for SSI/SSP recipients.
(c) Implementation of the levels of care system shall consider the
applicability of the 1985 level of care report developed by the
California Health and Human Services Agency, so as to ensure
continuity in the residential care facility for the elderly program
as outlined under this chapter.
SEC. 192. Section 1596.816 of the Health and Safety Code is
amended to read:
1596.816. (a) The Community Care Licensing Division of the
department shall regulate child care licensees through an
organizational unit that is separate from that used to regulate all
other licensing programs. The chief of the child care licensing
branch shall report directly to the Deputy Director of the Community
Care Licensing Division.
(b) All child care regulatory functions of the licensing division,
including the adoption and interpretation of regulations, staff
training, monitoring and enforcement functions, administrative
support functions, and child care advocacy responsibilities shall be
carried out by the child care licensing branch to the extent that
separation of these activities can be accomplished without new costs
to the department.
(c) The Child Care Ombudsman Program shall be transferred to the
Child Care Advocate Branch when Section 10 of this act becomes
operative or upon implementation of an action that supports expansion
of the program.
(d) Those persons conducting inspections of day care facilities
shall meet qualifications approved by the State Personnel Board.
(e) The department shall review a sampling of child care facility
inspection reports and submit findings to the Legislature by January
15 of each year. Insofar as data is available, this report shall
summarize the types and frequencies of violations, correlating that
data with health and safety complaints and accidents, and
recommending further protective legislative measures where warranted.
(f) The department shall notify the appropriate legislative
committees whenever actual staffing levels of licensing program
analysts within the child care licensing branch drops more than 10
percent below authorized positions.
(g) The budget for the child care licensing branch shall be
included as a separate entry within the budget of the department.
SEC. 193. Section 1794.04 of the Health and Safety Code is amended
to read:
1794.04. Except as otherwise provided in subdivision (b) of
Section 1794.03, no person, political subdivision of the state, or
governmental agency shall provide home dialysis services unless a
license has been issued under this chapter. Any person, political
subdivision of the state, or governmental agency desiring a license
for a home dialysis agency under this chapter shall file with the
department a verified application on a form prescribed and furnished
by the department that contains any information as may be required by
the department for the proper administration and enforcement of this
chapter.
SEC. 194. Section 11758 of the Health and Safety Code is amended
to read:
11758. The definitions contained in this chapter shall govern the
construction of this chapter, unless the context requires otherwise.
SEC. 195. Section 13108.5 of the Health and Safety Code is amended
to read:
13108.5. (a) The State Fire Marshal, in consultation with the
Director of Forestry and Fire Protection and the Director of Housing
and Community Development, shall, pursuant to Section 18930, propose
fire protection building standards for roofs, exterior walls,
structure projections, including, but not limited to, porches, decks,
balconies, and eaves, and structure openings, including, but not
limited to, attic and eave vents and windows of buildings in fire
hazard severity zones, including very high fire hazard severity zones
designated by the Director of Forestry and Fire Protection pursuant
to Article 9 (commencing with Section 4201) of Chapter 1 of Part 2 of
Division 4 of the Public Resources Code.
(b) Building standards adopted pursuant to this section shall also
apply to buildings located in very high fire hazard severity zones
designated pursuant to Chapter 6.8 (commencing with Section 51175) of
Part 1 of Division 1 of Title 5 of the Government Code, and other
areas designated by a local agency following a finding supported by
substantial evidence in the record that the requirements of the
building standards adopted pursuant to this section are necessary for
effective fire protection within the area.
(c) Building standards adopted pursuant to this section shall also
apply to buildings located in urban wildland interface communities.
A local agency may, at its discretion, include in or exclude from
the requirements of these building standards any area in its
jurisdiction following a finding supported by substantial evidence in
the record at a public hearing that the requirements of these
building standards are necessary or not necessary, respectively, for
effective fire protection within the area. Changes made by a local
agency to an urban wildland interface community area following a
finding supported by substantial evidence in the record shall be
final and shall not be rebuttable.
(d) For purposes of subdivision (c), "urban wildland interface
community" means a community listed in "Communities at Risk from Wild
Fires," produced by the California Department of Forestry and Fire
Protection, Fire and Resource Assessment Program, pursuant to the
National Fire Plan, federal Fiscal Year 2001 Department of the
Interior and Related Agencies Appropriations Act (Public Law
106-291).
SEC. 196. Section 17037.5 of the Health and Safety Code is amended
to read:
17037.5. (a) Any person who ceases to operate or maintain
employee housing that is subject to the permit requirement pursuant
to this part shall be required to annually complete and submit a
Certificate of Non-Operation to the enforcement agency. The
Certificate of Non-Operation shall be submitted for two years
following the discontinuation of the use of any area on the property
as employee housing. The Certificate of Non-Operation shall attest
under penalty of perjury that the employee housing has been
destroyed, or is no longer owned or operated, or has not been and
shall not be occupied by five or more employees during the calendar
year.
(b) The Certificate of Non-Operation shall include the owner's
name and address, the operator's name and address, the employee
housing name and location, the maximum number of employees who have
occupied or shall occupy the employee housing during the calendar
year, and any other information considered relevant by the
enforcement agency. The Certificate of Non-Operation shall be
completed and submitted to the enforcement agency no later than 30
calendar days after the enforcement agency provides the form to the
owner or operator.
SEC. 197. Section 17921.9 of the Health and Safety Code is amended
to read:
17921.9. (a) The Legislature finds and declares all of the
following:
(1) The deterioration of copper piping has become a serious
problem in various communities in the state.
(2) Chlorinated polyvinyl chloride (CPVC) plastic piping has been
successfully used for many years in other states and in nations
around the globe, and has also been widely used, in accordance with
federal regulations, in mobilehome construction.
(3) The Department of Community Development of the City of Colton,
acting pursuant to a good-faith belief that it was in compliance
with state regulations, approved the use of CPVC piping as an
alternative to copper piping in early 1993 when the department was
confronted with widespread deterioration of copper piping systems in
a tract in the western part of that city.
(4) The retrofitting of homes in Colton with CPVC piping has been
successful.
(b) It is, therefore, the intent of the Legislature in enacting
this section to allow the use of CPVC piping in building construction
in California as an alternate material under specified conditions.
(c) Notwithstanding any other provision of law, the provisions of
the California Plumbing Code that do not authorize the use of CPVC
piping within California shall not apply to any local government that
permitted the use of CPVC piping for potable water systems within
its jurisdiction prior to January 1, 1996. Any local government that
permitted the use of CPVC piping for potable water systems within
its jurisdiction prior to January 1, 1996, shall require both of the
following:
(1) That the CPVC piping to be used is listed as an approved
material in, and is installed in accordance with, the 1994 edition of
the Uniform Plumbing Code.
(2) That all installations of CPVC strictly comply with the
interim flushing procedures and worker safety measures set forth in
subdivisions (d) and (e).
(d) The following safe work practices shall be adhered to when
installing both CPVC and copper plumbing pipe in California after the
effective date of the act that adds this section:
(1) (A) Employers shall provide education and training to inform
plumbers of risks, provide equipment and techniques to help reduce
exposures from plumbing pipe installation, foster safe work habits,
and post signs to warn against the drinking of preoccupancy water.
(B) For purposes of this paragraph, "training" shall include
training in ladder safety, safe use of chain saws and wood-boring
tools, hazards associated with other construction trades, hazards
from molten solder and flux, and the potential hazards and safe use
of soldering tools and materials.
(2) Cleaners shall be renamed as primers, include strong warnings
on the hazards of using primers as cleaners, and include dyes to
discourage use as cleaners.
(3) Applicators and daubers shall be limited to small sizes.
(4) Enclosed spaces shall be ventilated with portable fans when
installing CPVC pipe.
(5) Protective impermeable gloves shall be utilized when
installing CPVC pipe.
(6) Employers shall provide onsite portable eyewash stations for
all employees to allow for immediate flushing of eyes in the event of
splashing of hot flux.
(7) Employers using acetylene torches shall ensure that the
acetylene tanks are regularly maintained and inspected in accordance
with applicable regulatory requirements. Fire extinguishers shall be
kept in close proximity to the workplace.
(e) All of the following flushing procedures shall be adhered to
when installing CPVC pipe in California after the effective date of
the act that adds this section:
(1) When plumbing is completed and ready for pressure testing,
each cold water and hot water tap shall be flushed starting with the
fixture (basin, sink, tub, or shower) closest to the water
meter and continuing with each
successive fixture, moving toward the end of the system. Flushing
shall be continued for at least one minute or longer until water
appears clear at each fixture. This step may be omitted if a
jurisdiction requires the building inspector to test each water
system.
(2) The system shall be kept filled with water for at least one
week and then flushed in accordance with the procedures set forth in
paragraph (1). The system shall be kept filled with water and not
drained.
(3) Before the premises are occupied, the hot water heater shall
be turned on and the system shall be flushed once more. Commencing
with the fixture closest to the hot water heater, the hot water tap
shall be permitted to run until hot water is obtained. The time
required to get hot water in a specific tap shall be determined and
then the cold water tap at the same location shall be turned on for
the same period of time. This procedure shall be repeated for each
fixture in succession toward the end of the system.
(f) Nothing in this section shall be construed to affect the
applicability of any existing law imposing liability on a
manufacturer, distributor, retailer, installer, or any other person
or entity under the laws of this state for liability.
(g) This section shall not be operative after January 1, 1998.
SEC. 198. Section 17991 of the Health and Safety Code is amended
to read:
17991. (a) The sale or other transfer of property to a third
party shall not render moot an administrative or judicial action or
proceeding pursuant to this article, including an action under
Section 17982, instituted by an enforcement agency, or a receiver on
behalf of an enforcement agency, against the owner of record on the
date a citation for, or other notice of, a violation of this part was
issued.
(b) In the event of any sale or other transfer of property to a
third party during the period between the issuance of the notice of
violation and the abatement of the violation, or any administrative
or judicial actions related thereto, within five days after the sale
or transfer occurs, the transferor shall record a Notice of
Conveyance of Substandard Property with the county recorder where the
property is located, identifying the name and address of the buyer
or transferee and executed with a signature that the information is
true and correct, under penalty of perjury.
(c) In the event of any sale of other transfer of property to a
third party during the period between the issuance of the notice of
violation and the abatement of the violation, or any administrative
or judicial actions related thereto, the transferor shall provide all
of the following information to the enforcement agency within five
days after the sale or transfer occurs:
(1) If the seller or transferor is not an individual person, the
name, address, and driver's license number or identification card
number of each individual who has an interest in excess of 5 percent
in the entity which is selling or transferring the property.
(2) If the buyer or transferee is an individual person, the name,
address, and driver's license number or identification number of that
individual.
(3) If the buyer or transferee is not an individual person, the
name, address, and driver's license number or identification card
number of each individual who has an interest in excess of 5 percent
in the entity that is the buyer or transferee of the property.
SEC. 199. Section 25117.4.1 of the Health and Safety Code is
amended to read:
25117.4.1. (a) "Local health officer" means county health
officers, city health officers, and district health officers, as
defined in this code.
(b) "Local officer" means a local public officer authorized to
implement this chapter pursuant to subdivision (a) of Section 25180.
SEC. 200. Section 25121.3 of the Health and Safety Code is amended
to read:
25121.3. (a) "Remote site" means a site operated by the generator
where hazardous waste is initially collected, at which generator
staff, other than security staff, is not routinely located, and that
is not contiguous to a staffed site operated by the generator of the
hazardous waste or that does not have access to a staffed site
without the use of public roads. Generator staff who visit a remote
location to perform inspection, monitoring, or maintenance activities
on a periodic scheduled or random basis, less frequently than daily,
are not considered to be routinely located at the remote location.
(b) Notwithstanding this chapter or the regulations adopted by the
department pursuant to this chapter, a generator who complies with
the notification requirements of subdivision (d) of Section 25110.10
may hold hazardous waste at the remote site where the hazardous waste
is initially collected, or at another remote site operated by the
generator, while en route to the consolidation site, if all of the
following requirements are met with respect to the hazardous waste:
(1) The hazardous waste is a non-RCRA hazardous waste, or the
hazardous waste or its management at the remote site is otherwise
exempt from, or is not otherwise regulated pursuant to, the federal
act.
(2) The requirements of subdivision (b) of Section 25110.10 are
met.
(3) All personnel handling hazardous waste at any remote site
complete health and safety training equivalent to the training
required under Section 5194 of Title 8 of the California Code of
Regulations, prior to being assigned to handle hazardous waste.
(4) A description of the actions that the generator's personnel
will take to minimize hazards to human health and safety or to the
environment from fires, explosions, or any unplanned release of
hazardous waste or hazardous waste constituents to air, soil, or
surface water at the remote site where the hazardous waste is being
managed shall be included in the contingency plan for the
consolidation site. A single generic description of response actions
may be used for all similar remote sites associated with a single
consolidation site.
(5) As soon as the generator begins to actively manage the
hazardous waste at the remote site, the generator places the
hazardous waste in a container meeting the requirements of the United
States Department of Transportation applicable to containers used to
transport hazardous waste, and the containers are managed in
accordance with the regulations adopted by the department regarding
the management by generators of containers used to hold hazardous
waste.
(6) The containers used to hold the hazardous waste at the remote
site are labeled, in accordance with the regulations adopted by the
department pertaining to labeling requirements for generators, as
soon as the hazardous waste is placed in the container.
(7) The generator makes a reasonable effort to minimize the
possibility of unknowing or unauthorized entry into the area where
the hazardous waste is held at the remote site. If the remote site
is located within one mile of a residential or commercial area, or is
otherwise readily accessible to the public, the area where hazardous
waste is held at the remote site shall at all times be supervised by
employees or agents of the generator or otherwise secured so as to
prevent unknowing entry and to minimize the possibility for
unauthorized entry.
(c) If the management of hazardous wastes at a remote site does
not meet all of the conditions specified in subdivision (b), the
hazardous waste shall be subject to all other applicable generator
and facility requirements of this chapter and the regulations adopted
by the department to implement this chapter.
SEC. 201. Section 25160.6 of the Health and Safety Code is amended
to read:
25160.6. (a) (1) If a hazardous waste shipment is rejected in its
entirety before the original manifest is signed by an offsite
hazardous waste facility operator, the original manifest shall be
used to transport the rejected load to either the generator or an
alternate facility designated by the generator.
(2) An offsite hazardous waste facility operator is not required
to sign a manifest pursuant to this subdivision until the hazardous
waste listed on the manifest is fully unloaded at the facility. If
the transporter leaves a loaded or partially loaded trailer at the
facility, the facility operator shall sign the manifest before the
transporter departs the facility.
(3) The hazardous waste facility operator shall, when preparing a
manifest to accompany a rejected load of hazardous waste, enter the
number of the original manifest in Box 19 on the new manifest, and
the facility operator shall enter the number of the new manifest in
Box 19 on those copies of the original manifest still in the facility
operator's possession. The facility operator shall enter this
information elsewhere on the manifest if required by regulations
adopted by the department. The facility operator shall also use Box
19 on the new manifest, or any other box that is required by the
department's regulations, to identify the shipment as a rejected
load.
(4) After an offsite hazardous waste facility operator rejects a
shipment of hazardous waste, the transporter shall transport the
hazardous waste, accompanied by the original manifest or a new
manifest, to either the generator or an alternate facility designated
by the generator. The transporter shall obtain a signature on the
manifest from the operator of the alternate designated facility or
the generator, whichever receives the rejected shipment.
(b) For purposes of receiving hazardous waste rejected by an
offsite hazardous waste facility operator, the generator of the
hazardous waste shall be considered a designated facility for the
receipt of hazardous waste generated by that generator. For purposes
of this section, "designated facility" has the same meaning as that
term is defined in Section 66260.10 of Title 22 of the California
Code of Regulations, including any amendments thereto.
(c) (1) An offsite hazardous waste facility operator that rejects
an entire shipment or a partial shipment of hazardous waste pursuant
to this section is not the generator of that hazardous waste for
purposes of this chapter, including any regulations adopted pursuant
to this chapter, nor an arranger for disposal of the waste, nor a
transporter who chooses the location for disposal of waste.
(2) (A) An offsite hazardous waste facility operator that rejects
an entire shipment or a partial shipment of hazardous waste pursuant
to this section is the offeror of the rejected hazardous waste.
(B) For purposes of this chapter and regulations adopted pursuant
to this chapter, "offeror" means a person who ships hazardous waste
and is responsible for ensuring that the hazardous waste is properly
prepared for shipment but who is not an arranger for disposal or a
transporter who chooses the location for disposal of the waste.
(3) An offsite hazardous waste facility operator that rejects an
entire shipment or a partial shipment of hazardous waste pursuant to
this section shall comply with the department's regulations
concerning manifest use, container condition and management, and
container packaging, labeling, marking, and placarding with respect
to the rejected hazardous waste.
(d) Except as provided in subdivision (e), the generator of
hazardous waste who receives a rejected shipment of that hazardous
waste may accumulate the rejected hazardous waste onsite for 90 days
or less, in accordance with the requirements of paragraph (1) of
subdivision (a) of Section 66262.34 of Title 22 of the California
Code of Regulations. The generator of the rejected hazardous waste
shall label or mark the hazardous waste in a manner that indicates
that it is rejected hazardous waste and shall include the date it was
received by the generator. If the generator of the rejected
hazardous waste commingles it with other hazardous wastes, the
shorter of any applicable accumulation time limits shall apply to the
commingled hazardous waste.
(e) A transporter of hazardous waste, that consolidates shipments
of waste pursuant to Section 25160.2 and whose consolidated shipment
is rejected by an offsite hazardous waste facility, may hold that
shipment on the transport vehicle at the transporter's facility for
no more than 10 days from the date the shipment is rejected,
consistent with paragraph (3) of subdivision (b) of Section 25123.3.
The transporter may not commingle the consolidated shipment with any
other waste.
(f) A generator of hazardous waste who receives a shipment of
rejected waste shall comply with the requirements of Sections
66265.71 and 66265.72 of Title 22 of the California Code of
Regulations.
(g) To the extent that the United States Environmental Protection
Agency adopts regulations under the federal act that preempt or are
more stringent than the requirements of this section, offsite
hazardous waste facilities, generators, and transporters shall
instead comply with those regulations on and after the date those
federal regulations become effective in California, or on and after
the effective date of regulations adopted by the department in
accordance with those federal regulations, whichever date occurs
first.
SEC. 202. Section 25184.1 of the Health and Safety Code is amended
to read:
25184.1. If any administrative order or decision that imposes a
penalty is issued pursuant to this chapter or Chapter 6.8 (commencing
with Section 25300), the administrative order or decision has become
final, and, if applicable, a petition for judicial review of the
final order or decision has not been filed within the time limits
prescribed in Section 11523 of the Government Code, the department
may apply to the clerk of the appropriate court for a judgment to
collect the administrative penalty. The department's application,
which shall include a certified copy of the final administrative
order or decision, constitutes a sufficient showing to warrant
issuance of the judgment. The court clerk shall enter the judgment
immediately in conformity with the application. The judgment so
entered has the same force and effect as, and is subject to all the
provisions of law relating to, a judgment in a civil action, and may
be enforced in the same manner as any other judgment of the court in
which it is entered.
SEC. 203. Section 25201.1 of the Health and Safety Code is amended
to read:
25201.1. (a) A solid waste facility, as defined in Section 40194
of the Public Resources Code, or any recycling facility, that accepts
and processes empty aerosol cans and de minimis quantities of
nonempty aerosol cans collected as an incidental part of the
collection of empty cans for recycling, is exempt from the
requirement to obtain a hazardous waste facilities permit or other
authorization from the department for purposes of conducting that
activity if both of the following conditions are met:
(1) The nonempty aerosol cans are from products that are normally
intended for household use and were generated by households.
(2) The city, county, or regional agency in the area that the
facility serves provides educational information to the public on the
safe collection and recycling or disposal of empty and nonempty
aerosol cans that encourages, to the maximum extent feasible, the
separation and recycling of empty aerosol cans through such programs
as curbside, dropoff, and buy-back recycling programs, and the
diversion of nonempty aerosol cans into household hazardous waste
collection programs. Issues of compliance with this subdivision
shall be determined by the California Integrated Waste Management
Board or by the appropriate local enforcement agency.
(b) This section is not intended to alter the obligation to manage
as a hazardous waste any nonempty aerosol cans that meet the
requirements of Section 25117, and that are not subject to the
exemption provided in this section.
(c) Nothing in this section exempts a solid waste facility that
engages in an activity that requires a hazardous waste facility
permit, other than the acceptance and processing of empty aerosol
cans and de minimis quantities of nonempty aerosol cans as an
incidental part of the collection of empty cans for recycling, from
the requirement of obtaining a hazardous waste facilities permit.
SEC. 204. Section 25210.6 of the Health and Safety Code is amended
to read:
25210.6. (a) On or before December 31, 2005, the department shall
adopt regulations specifying the best management practices for a
person managing perchlorate materials. These practices may include,
but are not limited to, all of the following:
(1) Procedures for documenting the amount of perchlorate materials
managed by the facility.
(2) Management practices necessary to prevent releases of
perchlorate materials, including, but not limited to, containment
standards, usage, processing and transferring practices, and spill
response procedures.
(b) (1) The department shall consult with the State Air Resources
Board, the Office of Environmental Health Hazard Assessment, the
State Water Resources Control Board, the Office of Emergency
Services, the State Fire Marshal, and the California certified
unified program agencies forum before adopting regulations pursuant
to subdivision (a).
(2) The department shall also, before adopting regulations
pursuant to subdivision (a), review existing federal, state, and
local laws governing the management of perchlorate materials to
determine the degree to which uniform and adequate requirements
already exist, so as to avoid any unnecessary duplication of, or
interference with the application of, those existing requirements.
(3) In adopting regulations pursuant to subdivision (a), the
department shall ensure that those regulations are at least as
stringent as, and to the extent practical consistent with, the
existing requirements of Chapter 6.95 (commencing with Section 25500)
and the Uniform Fire Code governing the management of perchlorate
materials.
(c) The regulations adopted by the department pursuant to this
section shall be adopted 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, and for the purposes of that
chapter, including Section 11349.6 of the Government Code, the
adoption of these regulations is an emergency and shall be considered
by the Office of Administrative Law as necessary for the immediate
preservation of the public peace, health and safety, and general
welfare. Notwithstanding Chapter 3.5 (commencing with Section 11340)
of Part 1 of Division 3 of Title 2 of the Government Code, including
subdivision (e) of Section 11346.1 of the Government Code, any
emergency regulations adopted pursuant to this section shall be filed
with, but not be repealed by, the Office of Administrative Law and
shall remain in effect until revised by the department.
(d) The department may implement an outreach effort to educate
persons who manage perchlorate materials concerning the regulations
promulgated pursuant to subdivision (a).
SEC. 205. Section 25360.6 of the Health and Safety Code is amended
to read:
25360.6. (a) The department shall, if it determines that it is
practicable and in the public interest, propose a final
administrative or judicial expedited settlement with potentially
responsible parties if the settlement involves only a minor portion
of the response costs at a facility and, if in the judgment of the
department, either of the following conditions are met:
(1) The amount of hazardous substances and the toxic or other
hazardous effects of the hazardous substances contributed by the
potentially responsible party to the facility are minimal in
comparison to the amount and effects of other hazardous substances at
the facility.
(2) The potentially responsible party is the owner of the real
property on or in which the facility is located, did not conduct or
permit the generation, transportation, storage, treatment, or
disposal of any hazardous substance at the facility, and did not
contribute to the release or threat of release of a hazardous
substance at the facility through any act or omission. This paragraph
does not apply if the potentially responsible party, at the time of
the purchase of the real property, knew or should have known that the
property was used for the generation, transportation, storage,
treatment, or disposal of any hazardous substance.
(b) A party who has resolved its liability to the state under this
section shall not be liable for claims for contribution regarding
matters addressed in the settlement. A settlement under this section
does not discharge any of the other potentially responsible parties
unless its terms so provide, but it reduces the potential liability
of the others by the amount of the settlement.
(c) Any person who enters into a settlement under this section
shall provide any information relevant to the administration of this
chapter that is requested by the department. In order to obtain the
contribution protection provided by subdivision (b), a potentially
responsible party participating in a de minimis settlement shall
certify that it has responded fully and accurately to all of the
department's requests for information, and that it has provided all
of the relevant documents pertaining to the facility to the
department.
(d) Nothing in this section shall be construed to affect the
authority of the department or regional board to reach settlements
with other potentially responsible parties under this chapter.
SEC. 206. Section 25501 of the Health and Safety Code is amended
to read:
25501. Unless the context indicates otherwise, the following
definitions govern the construction of this chapter:
(a) "Administering agency" means the local agency authorized,
pursuant to Section 25502, to implement and enforce this chapter.
(b) "Agricultural handler" means an entity identified in paragraph
(5) of subdivision (c) of Section 25503.5.
(c) "Area plan" means a plan established pursuant to Section 25503
by an administering agency for emergency response to a release or
threatened release of a hazardous material within a city or county.
(d) "Business" means an employer, self-employed individual, trust,
firm, joint stock company, corporation, partnership, or association.
For purposes of this chapter, "business" includes a business
organized for profit and a nonprofit business.
(e) "Business plan" means a separate plan for each facility, site,
or branch of a business that meets the requirements of Section
25504.
(f) "Certification statement" means a statement signed by the
business owner, operator, or officially designated representative
that attests to all of the following:
(1) The information contained in the annual inventory form most
recently submitted to the administering agency is complete, accurate,
and up to date.
(2) There has been no change in the quantity of any hazardous
material as reported in the most recently submitted annual inventory
form.
(3) No hazardous materials subject to the inventory requirements
of this chapter are being handled that are not listed on the most
recently submitted annual inventory form.
(4) The most recently submitted annual inventory form contains the
information required by Section 11022 of Title 42 of the United
States Code.
(g) (1) "Certified Unified Program Agency" or "CUPA" means the
agency certified by the secretary to implement the unified program
specified in Chapter 6.11 (commencing with Section 25404) within a
jurisdiction.
(2) "Participating Agency" or "PA" means an agency that has a
written agreement with the CUPA pursuant to subdivision (d) of
Section 25404.3, and is approved by the secretary, to implement or
enforce one or more of the unified program elements specified in
paragraphs (4) and (5) of subdivision (c) of Section 25404, in
accordance with the provisions of Sections 25404.1 and 25404.2.
(3) "Unified Program Agency" or "UPA" means the CUPA, or its
participating agencies to the extent each PA has been designated by
the CUPA, pursuant to a written agreement, to implement or enforce a
particular unified program element specified in paragraphs (4) and
(5) of subdivision (c) of Section 25404. For purposes of this
chapter, the UPAs have the responsibility and authority, to the
extent provided by this chapter and Sections 25404.1 and 25404.2, to
implement and enforce only those requirements of this chapter listed
in paragraphs (4) and (5) of subdivision (c) of Section 25404. The
UPAs also have the responsibility and authority, to the extent
provided by this chapter and Sections 25404.1 and 25404.2, to
implement and enforce the regulations adopted to implement the
requirements of this chapter listed in paragraphs (4) and (5) of
subdivision (c) of Section 25404. After a CUPA has been certified by
the secretary, the unified program agencies shall be the only local
agencies authorized to enforce the requirements of this chapter
listed in paragraphs (4) and (5) of subdivision (c) of Section 25404
within the jurisdiction of the CUPA.
(h) "City" includes any city and county.
(i) "Chemical name" means the scientific designation of a
substance in accordance with the nomenclature system developed by the
International Union of Pure and Applied Chemistry or the system
developed by the Chemical Abstracts Service.
(j) "Common name" means any designation or identification, such as
a code name, code number, trade name, or brand name, used to
identify a substance by other than its chemical name.
(k) "Department" means the Department of Toxic Substances Control
and "director" means the Director of Toxic Substances Control.
(l) "Emergency rescue personnel" means any public employee,
including, but not limited to, any fireman, firefighter, or emergency
rescue personnel, as defined in Section 245.1 of the Penal Code, or
personnel of a local EMS agency, as designated pursuant to Section
1797.200, or a poison control center, as defined by Section 1797.97,
who responds to any condition caused, in whole or in part, by a
hazardous material that jeopardizes, or could jeopardize, public
health or safety or the environment.
(m) "Handle" means to use, generate, process, produce, package,
treat, store, emit, discharge, or dispose of a hazardous material in
any fashion.
(n) "Handler" means any business that handles a hazardous
material.
(o) "Hazardous material" means any material that, because of its
quantity, concentration, or physical or chemical characteristics,
poses a significant present or potential hazard to human health and
safety or to the
environment if released into the workplace or the environment.
"Hazardous materials" include, but are not limited to, hazardous
substances, hazardous waste, and any material that a handler or the
administering agency has a reasonable basis for believing that it
would be injurious to the health and safety of persons or harmful to
the environment if released into the workplace or the environment.
(p) "Hazardous substance" means any substance or chemical product
for which one of the following applies:
(1) The manufacturer or producer is required to prepare a MSDS for
the substance or product pursuant to the Hazardous Substances
Information and Training Act (Chapter 2.5 (commencing with Section
6360) of Part 1 of Division 5 of the Labor Code) or pursuant to any
applicable federal law or regulation.
(2) The substance is listed as a radioactive material in Appendix
B of Chapter 1 of Title 10 of the Code of Federal Regulations,
maintained and updated by the Nuclear Regulatory Commission.
(3) The substances listed pursuant to Title 49 of the Code of
Federal Regulations.
(4) The materials listed in subdivision (b) of Section 6382 of the
Labor Code.
(q) "Hazardous waste" means hazardous waste, as defined by
Sections 25115, 25117, and 25316.
(r) "Office" means the Office of Emergency Services.
(s) "Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping, or disposing into the environment, unless permitted or
authorized by a regulatory agency.
(t) "Secretary" means the Secretary for Environmental Protection.
(u) "SIC Code" means the identification number assigned by the
Standard Industrial Classification Code to specific types of
businesses.
(v) "Threatened release" means a condition creating a substantial
probability of harm, when the probability and potential extent of
harm make it reasonably necessary to take immediate action to
prevent, reduce, or mitigate damages to persons, property, or the
environment.
(w) "Trade secret" means trade secrets as defined in subdivision
(d) of Section 6254.7 of the Government Code and Section 1060 of the
Evidence Code.
(x) "Unified Program Facility" means all contiguous land and
structures, other appurtenances, and improvements on the land that
are subject to the requirements of paragraphs (4) and (5) of
subdivision (c) of Section 25404.
SEC. 207. Section 32111 of the Health and Safety Code is amended
to read:
32111. (a) A member of a health care district's medical or allied
health professional staff who is an officer of the district shall
not be deemed to be "financially interested," for purposes of Section
1090 of the Government Code, in any of the contracts set forth in
subdivision (b) made by any district body or board of which the
officer is a member if all of the following conditions are satisfied:
(1) The officer abstains from any participation in the making of
the contract.
(2) The officer's relationship to the contract is disclosed to the
body or board and noted in its official records.
(3) If the requirements of paragraphs (1) and (2) are satisfied,
the body or board does both of the following, without any
participation by the officer:
(A) Finds that the contract is fair to the district and in its
best interest.
(B) Authorizes the contract in good faith.
(b) Subdivision (a) shall apply to the following contracts:
(1) A contract between the district and the officer for the
officer to provide professional services to the district's patients,
employees, or medical staff members and their respective dependents,
provided that similar contracts exist with other staff members and
the amounts payable under the contract are no greater than the
amounts payable under similar contracts covering the same or similar
services.
(2) A contract to provide services to covered persons between the
district and any insurance company, health care service plan,
employer, or other entity that provides health care coverage, and
that also has a contract with the officer to provide professional
services to its covered persons.
(3) A contract in which the district and the officer are both
parties if other members of the district's medical or allied health
professional staff are also parties, directly or through their
professional corporations or other practice entities, provided the
officer is offered terms no more favorable than those offered any
other party who is a member of the district's medical or allied
health professional staff.
(c) This section does not permit an otherwise prohibited
individual to be a member of the board of directors of a district,
including, but not limited to, individuals described in Section 32110
of this code or in Section 53227 of the Government Code. Nothing in
this section shall authorize a contract that would otherwise be
prohibited by Section 2400 of the Business and Professions Code.
(d) For purposes of this section, a contract entered into by a
professional corporation or other practice entity in which the
officer has an interest shall be deemed the same as a contract
entered into by the officer directly.
SEC. 208. Section 33320.8 of the Health and Safety Code is amended
to read:
33320.8. (a) The territory that is described in subdivision (b)
shall not be subject to the requirements of subdivision (b) of
Section 33321.5.
(b) All lands not enforceably restricted within the Counties of
Riverside and San Bernardino, within the spheres of influence of the
Cities of Chino and Ontario as of January 1, 1996, according to the
United States Government Township Plat thereof, described as follows:
(1) That portion of Township 2 South, Range 7 West, San Bernardino
Meridian, in the County of San Bernardino, State of California,
described as follows:
Beginning at the center line intersection of Euclid Avenue and
Riverside Drive, said intersection being on the existing city limits
of Ontario; thence east along said city limits line and continuing
along said line, following all of its various courses to the
intersection of Riverside Drive with the San Bernardino County line;
thence leaving said city limits line south and southwesterly along
said county line to the north line of Section 27, said Township 2
South, Range 7 West; thence west along said north line, being also
the center line of Remington Avenue, to the center line of Carpenter
Avenue; thence north along said center line to the center line of
Merrill Avenue; thence west along said center line to the east line
of Grove Avenue; thence north along said east line to the north line
of Merrill Avenue; thence west along said north line and its
prolongation to the center line of Euclid Avenue; thence north along
said center line to the Point of Beginning.
(2) Those portions of Townships 2 and 3 South, Ranges 7 and 8
West, San Bernardino Meridian, in the County of San Bernardino, State
of California, described as follows:
Beginning at the intersection of the center line of Merrill Avenue
with the east line of Grove Avenue; thence east along said center
line of Merrill Avenue to the center line of Carpenter Avenue; thence
south along said center line to the north line of Government Lot 1
of Section 27, said Township 2 South, Range 7 West, said point being
also on the center line of Remington Avenue; thence east along said
center line to the San Bernardino County line; thence southwesterly,
southerly and westerly along said county line to the center line of
State Highway 71 being also on the existing city limits line of Chino
Hills; thence northwesterly along said center line and city limits
line to the southwesterly prolongation of the center line of Pine
Avenue; thence easterly along said prolongation and center line to
the center line of Chino Creek; thence southeasterly along said
center line to the west line of Section 6, said Township 3 South,
Range 7 West; thence north along said west line and the west line of
Section 31, said Township 2 South, Range 7 West, to the center line
of Pine Avenue; thence westerly along said center line to the center
line of El Prado Road, formerly Central Avenue; thence northwesterly
along said center line to the center line of Kimball Avenue, said
point being on the existing city limits of Chino; thence east along
said city limits line and continuing along said city limits,
following all of its various courses to the center line intersection
of Kimball Avenue and vacated Campus Avenue; thence leaving said city
limits line east along said center line of Kimball Avenue to the
center line of Grove Avenue; thence north along said center line to
the center line of Remington Avenue, vacated; thence east along said
vacated center line to the east line of Grove Avenue; thence north
along said last line to the Point of Beginning.
(3) Those portions of Sections 6, 7, 18, 19, 30, and 31, Township
2 South, Range 6 West, San Bernardino Meridian; Sections 23, 24, 25,
26, 27, 34, 35, and 36, Township 2 South, Range 7 West, San
Bernardino Meridian; and Sections 2, 3, and 10, Township 3 South,
Range 7 West, San Bernardino Meridian, within the unincorporated area
of the County of Riverside.
SEC. 209. Section 33492.40 of the Health and Safety Code is
amended to read:
33492.40. (a) Notwithstanding Section 33320.1, the requirement
that privately owned land within a project area be "predominantly
urbanized," as that term is defined in subdivision (b) of Section
33320.1, shall not apply to privately owned land within a project
area, if the privately owned land is adjacent or in proximity to a
military facility or installation that is proposed to be closed
pursuant to Public Law 100-526 and the inclusion of the privately
owned land is found by an entity formed pursuant to subdivision (b)
to be necessary for the effective redevelopment of the military
facility or installation and the adjacent area.
(b) The legislative bodies for communities having territory
within, adjacent to, or in proximity to a military facility or
installation described in subdivision (a) may create a separate joint
powers agency pursuant to Chapter 5 (commencing with Section 6500)
of Division 7 of Title 1 of the Government Code, which shall have and
exclusively exercise powers of an agency in furtherance of the
redevelopment of a project area approved by the joint powers agency.
The joint powers agency so formed shall include as one of its
members the county in which the project area is located. In addition
to the powers of an agency, the joint powers agency so formed shall
also act as the legislative body and planning commission for all
approvals and actions required by this part of legislative bodies and
planning commissions for the adoption and implementation of a
redevelopment plan. However, all land use, planning, and development
decisions with regard to the land within the project area shall
continue to be under the control and jurisdiction of each of the
respective local legislative bodies or planning commissions, as
applicable.
(c) The territory included within the project and project area may
be contiguous or noncontiguous, and any project area may be located
in whole or in part within one or more of the communities impacted by
the closure of the military facility or installation, and the land
to be included within the project area within the community or
communities in proximity to the military facility or installation
shall be found necessary for the effective redevelopment of the
military facility or installation and the adjacent area. A project
area shall not include territory outside the jurisdiction of the
communities that are parties to the joint powers agency without the
consent of the legislative body having jurisdiction over the
territory proposed to be included within the project area.
(d) A redevelopment plan for the project area shall contain all of
the provisions required by this part. However, if the agency finds,
based on substantial evidence on the record, that compliance with
the requirements of Sections 33333.2 and 33334.1 would make it
impracticable to achieve the policies of this section, the agency may
eliminate or modify the requirements of Sections 33333.2 and
33334.1.
(e) The redevelopment plan shall provide for either of the
following:
(1) A Low- and Moderate-Income Housing Fund, as required by
Section 33334.2.
(2) A deferral for depositing all or part of the 20 percent of
taxes allocated to the agency pursuant to Section 33670 in the Low-
and Moderate-Income Housing Fund if the agency, after conducting a
noticed public hearing, makes, and the executive committee of the
Southern California Association of Governments reviews and approves,
findings supported by substantial evidence that all of the following
apply:
(A) The military facility or installation cannot be acquired or
developed by private enterprise without the assistance of the agency.
(B) There are no feasible alternative means of financing the
acquisition or development of the military facility or installation
other than by utilizing the low- and moderate-income housing portion
of the taxes that are allocated to the agency pursuant to subdivision
(b) of Section 33670.
(C) Failure of the agency to finance the acquisition or
development of the military facility or installation would lead to
serious economic hardship and job loss.
(D) The redevelopment plan shall specify the period during which
less than 20 percent of the taxes that are allocated to the agency
pursuant to subdivision (b) of Section 33670, is to be deposited in
the Low- and Moderate-Income Housing Fund. The redevelopment plan
shall also contain a repayment plan which specifies a date at which
time the agency will have made up the deficit created by the
deferral, including repayment of the interest at the highest rate
received by the agency on funds it deposits during the period of
deferral. The repayment plan shall reduce the deficit in the
shortest feasible time consistent with the needs of the agency, as
specified in the agency's findings.
(f) The joint powers agency acting as the agency, the legislative
body or the planning commission, shall follow all procedures under
this part applicable to the adoption and amendment of redevelopment
plans, except with respect to Section 33347.5, Sections 33353 to
33353.6, inclusive, Sections 33354.4 to 33354.6, inclusive, and
Section 33385.
(g) The agency shall create a fiscal advisory group to consult
with each affected taxing agency and to advise and report to the
agency in the manner required of a fiscal review committee by Section
33353.5 on any potential fiscal impact upon affected taxing agencies
within the project area. The fiscal advisory group shall consist of
the financial officer or treasurer of each city and each county that
created the joint powers authority.
(h) The agency shall prepare and distribute to each affected
taxing agency a report that includes the information required by
Section 33328. The agency shall also prepare an analysis of the
report required of a fiscal review committee pursuant to subdivision
(m) of Section 33352 and an analysis of the report required of the
fiscal advisory group pursuant to subdivision (g).
(i) As used in this section, "in proximity to" means within three
miles of the boundary of Norton Air Force Base and within eight miles
of George Air Force Base.
(j) The Legislature finds and declares that the closure of two or
more military facilities or installations within the County of San
Bernardino will cause serious economic hardship in that county,
including loss of jobs, increased unemployment, deterioration of
properties and land utilization and undue disruption of the lives and
activities of the people. Therefore, the Legislature finds and
declares that to avoid serious economic hardship and accompanying
blight, it is necessary to enact this act which shall apply only
within the County of San Bernardino. In enacting this act, it is the
policy of the Legislature to assist communities within the County of
San Bernardino in their attempt to preserve the military facilities
and installations for their continued use as airports and
aviation-related purposes.
It is the intent of the Legislature and the commitment of the
local authorities to ensure that the existing airfields at both
Norton Air Force Base and George Air Force Base are protected,
developed, and enhanced as civil aviation public use airports.
Therefore, the joint powers authorities authorized by this section
should make every reasonable effort to guarantee that these vital
airport facilities are retained for general aviation use now and into
the future.
(k) Any joint powers agreement entered into pursuant to this
section shall provide that the financial needs of each of the parties
shall be considered prior to adoption of a redevelopment plan, and
may provide that the number of years shall be limited during which
bonded indebtedness may be paid using taxes that are allocated to the
agency pursuant to subdivision (b) of Section 33670.
(1) A joint powers agency operating within the area of Norton Air
Force Base shall appoint a project area citizens committee for the
purpose of consultation and advice regarding policy matters that
relate to planning and programs affecting the residents, businesses,
and educational institutions within the project area, implementation
of the redevelopment plan, and the development and implementation of
amendments to the redevelopment plan.
(2) The committee shall be comprised of residential owners,
residential tenants, business owners, small business owners, business
tenants, educational institution representatives, and community
groups currently operating, living, or working within the project
area. The membership of the Project Area Citizens Committee shall be
appointed by the legislative body of the agency and shall be
representative, both racially and ethnically, of the people who live
and work within the project area.
(3) For the purposes described above, the committee shall meet at
least once quarterly or more often to review policy matters and
implementation issues as determined necessary by the legislative
body.
(l) Amendments to any redevelopment plans adopted pursuant to this
section shall not be required to comply with the provisions of
Section 33452, provided that notice of the public hearing for any
amendment adopted pursuant to Article 12 (commencing with Section
33450) of Chapter 4, is published pursuant to Section 6063 of the
Government Code and mailed by regular mail to the governing body of
each of the taxing agencies that levies taxes upon any property in
the project area designated in the redevelopment plan as proposed to
be amended.
SEC. 210. Section 35987 of the Health and Safety Code is amended
and renumbered to read:
37986. (a) The council shall meet at the times and in places it
deems necessary, but no less than once a quarter. Whenever possible,
meetings shall be held in Sacramento in state facilities.
(b) Under no circumstances shall the council permit absentee or
proxy voting at any of its proceedings. However, a vote by a
designee, as provided in paragraphs (1) to (8), inclusive, of
subdivision (a), and paragraphs (1) to (5), inclusive, of subdivision
(d), of Section 37983, shall not be construed to be an absentee or
proxy vote under this subdivision.
(c) Council members may receive reimbursement for travel costs
directly related to council attendance if funding is available.
(d) The council shall apply for grants and may seek contributions
from private industry to fund its operations.
(e) The council shall actively solicit and accept funds from
industry, foundations, or other sources to promote and fund research
and development of dual technologies, to identify alternative
applications of military technologies, to initiate market research
for identifying possible defense conversion products, to establish
worker and business training programs, and to operate pilot projects
to evaluate and demonstrate useful approaches. These efforts should
be coordinated with the regional technology alliances.
SEC. 211. Section 35988 of the Health and Safety Code is amended
and renumbered to read:
37987. In addition to the duties specified in Section 37985, the
council shall do all of the following:
(a) At the request of a council member and upon majority vote of
the council, the council may review actions or programs by state
agencies that may affect military base retention and reuse and offer
comments or suggest changes to better integrate these actions or
programs into the overall state strategic plan required pursuant to
subdivision (a) of Section 37985.
(b) The council shall prepare a study considering strategies for
the long-term protection of lands adjacent to military bases from
development that would be incompatible with the continuing missions
of those bases. The study shall include the effects of local land
use encroachment, environmental impact considerations, and population
growth issues. The study shall recommend basic criteria to assist
local governments in identifying lands where incompatible development
may adversely impact the long-term missions of these bases. The
study shall also identify potential mechanisms, including
recommendations for changes in law at the local or state level, to
address these issues. In conducting this study, the council may use
the Naval Air Station at Lemoore and Edwards Air Force Base as case
studies.
The council shall hold public hearings on this study, including at
least one in the vicinity of either Lemoore or Edwards.
Notwithstanding Section 7550.5 of the Government Code, the council
shall prepare and submit to the Governor and the Legislature by
November 30, 2000, a report on this study with any recommendations.
SEC. 212. Section 35989 of the Health and Safety Code is amended
and renumbered to read:
37988. The Department of Housing and Community Development with
input and assistance from the council, shall establish a Defense
Retention Grant Program to grant funds to communities with military
bases to assist them in developing a retention strategy. The agency
may use grant criteria similar to those for existing defense
conversion grant programs as a basis for developing the new grant
program. To discourage multiple grant applications for individual
defense installations in a region, the criteria shall be drafted to
encourage a single application for grant funds to develop, where
appropriate, a single, regional defense retention strategy. The
structure, requirements, administration, and funding procedures of
the grant program shall be submitted to the Legislature for review at
least 90 days prior to making the first grant disbursement. The
agency may make no grant award without the local community providing
at least 50 percent or more in matching funds or in-kind services.
SEC. 213. Section 35990 of the Health and Safety Code is amended
and renumbered to read:
37989. The Department of Housing and Community Development shall
adopt regulations to implement the programs authorized in this
chapter. The agency shall adopt these regulations 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, and
for purposes of that chapter, including Section 11349.6 of the
Government Code, 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 and safety, and general
welfare. Notwithstanding subdivision (e) of Section 11346.1 of the
Government Code, the regulations shall be repealed within 180 days
after their effective date, unless the agency complies with Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code as provided in subdivision (e) of Section
11346.1 of the Government Code.
SEC. 214. Section 35991 of the Health and Safety Code is amended
and renumbered to read:
37990. This part 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. 215. Section 39011.5 of the Health and Safety Code is amended
to read:
39011.5. (a) "Agricultural source of air pollution" or
"agricultural source" means a source of air pollution or a group of
sources used in the production of crops, or the raising of fowl or
animals located on contiguous property under common ownership or
control that meets any of the following criteria:
(1) Is a confined animal facility, including, but not limited to,
any structure, building, installation, barn, corral, coop, feed
storage area, milking parlor, or system for the collection, storage,
treatment, and distribution of liquid and solid manure, if
domesticated animals, including, but not limited to, cattle, calves,
horses, sheep, goats, swine, rabbits, chickens, turkeys, or ducks are
corralled, penned, or otherwise caused to remain in restricted areas
for commercial agricultural purposes and feeding is by means other
than grazing.
(2) Is an internal combustion engine used in the production of
crops or the raising of fowl or animals, including, but not limited
to, an engine subject to Article 1.5 (commencing with Section 41750)
of Chapter 3 of Part 4 except an engine that is used to propel
implements of husbandry, as that term is defined in Section 36000 of
the Vehicle Code, as that section existed on January 1, 2003.
Notwithstanding subdivision (b) of Section 39601, the state board may
not revise this definition for the purposes of this section.
(3) Is a Title V source, as that term is defined in Section
39053.5, or is a source that is otherwise subject to regulation by a
district pursuant to this division or the federal Clean Air Act (42
U.S.C. Sec. 7401 et seq.).
(b) Any district rule or regulation affecting stationary sources
on agricultural operations adopted on or before January 1, 2004, is
applicable to an agricultural source.
(c) Nothing in this section limits the authority of a district to
regulate a source, including, but not limited to, a stationary source
that is an agricultural source, over which it otherwise has
jurisdiction pursuant to this division, or pursuant to the federal
Clean Air Act (42 U.S.C. Sec. 7401 et seq.) or any rules or
regulations adopted pursuant to that act that were in effect on or
before January 1, 2003, or to exempt an agricultural source from any
requirement otherwise
applicable under Section 40724 or 42301.16, based upon a finding by
the district in a public hearing that the aggregate emissions from
that source do not exceed a de minimis level of more than one ton of
particulate matter, nitrogen oxides, or volatile organic compounds
per year.
SEC. 216. Section 39614 of the Health and Safety Code is amended
to read:
39614. (a) For the purposes of this section, the following terms
have the following meanings:
(1) "Cost-effective" or "cost-effectiveness" means either of the
following, as applicable:
(A) For the state board, a determination using the standards,
formulas, and criteria used by the state board to calculate
cost-effectiveness for other regulations.
(B) For a district, a determination using the standards and
process described in Section 40922.
(2) "Implementation schedule" means a schedule that specifies
dates for final adoption, implementation, and sequencing of control
measures pursuant to this section.
(3) "Measures" means any of the following:
(A) Emissions limits, control technologies, or performance
standards designed to limit emissions for a source or source
category.
(B) Examples of adopted state or local district regulations.
(C) Examples of programs.
(4) "PM 2.5" means particulate matter of 2.5 microns and smaller
in size.
(5) "PM 10" means particulate matter of 10 microns and smaller in
size.
(6) "Programs" means any state or local program that reduces
either of the following:
(A) Smoke from agricultural or wood burning sources.
(B) Diesel emissions.
(b) On or before January 1, 2005, the state board, in consultation
with the districts, and after at least one public workshop, shall
develop and adopt at a public meeting a list of the most readily
available, feasible, and cost-effective proposed control measures,
based on rules, regulations, and programs existing in California as
of January 1, 2004, that could be employed by the state board and the
districts to reduce PM 2.5 and PM 10 and make progress toward
attainment of state and federal PM 2.5 and PM 10 standards. The list
shall include measures to reduce emissions from new and existing
stationary, mobile, and area sources, and shall indicate whether
those measures apply to new, modified, or existing sources. In
developing the list, the state board shall take into account
information it determines to be appropriate and relevant from
emissions inventories, air monitoring data, and other scientific
studies, including, but not limited to, information associated with
compliance with the federal ambient air standards for particulate
matter. The list shall include control measures for all of the
following emission source categories:
(1) Stationary combustion sources.
(2) Woodstoves and fireplaces.
(3) Commercial grilling operations.
(4) Agricultural burning.
(5) Construction and grading operations.
(6) Diesel-powered engines used in stationary and mobile
applications, including, but not limited to, control measures that do
any of the following:
(A) Reduce heavy-duty vehicle idling.
(B) Require the use of ultra low-sulfur diesel fuel.
(C) Encourage, and require to the extent authorized by law, fleet
turnover or the pull-ahead of new technology.
(D) Use public funds, including, but not limited to, Congestion
Mitigation and Air Quality Improvement Program funds to upgrade,
retrofit, or replace heavy-duty engines with less polluting
alternatives.
(E) Promote increased purchase and use by government agencies of
low-emission heavy-duty vehicles and equipment.
(c) The state board shall specify in the list adopted pursuant to
subdivision (a) whether a proposed control measure is intended to
reduce emissions of PM 2.5, PM 10, or both, and whether it is a
proposed control measure for adoption by the state board or by a
district. The state board and the districts shall adopt and
implement only those control measures within their respective
jurisdictions in accordance with applicable provisions of state law.
(d) (1) Not later than July 31, 2005, after at least one public
workshop and a noticed public hearing, and in a manner otherwise in
accordance with this section, the state board shall adopt an
implementation schedule for the state measures on the list developed
pursuant to subdivision (b) and each district shall adopt an
implementation schedule for the most cost-effective local measures
from the list for that district after prioritizing the measures based
on the factors identified in subparagraph (A) of paragraph (2). The
state board and each district, in carrying out the requirements of
this section, shall adopt and implement control measures to reduce PM
2.5 and PM 10 from stationary, area, and mobile sources, and to make
progress toward attainment of state and federal PM 2.5 and PM 10
standards.
(2) In developing an implementation schedule pursuant to this
subdivision, the state board and each district shall do all of the
following:
(A) Prioritize adoption and implementation of proposed control
measures based on the effect individual control measures will have on
public health, air quality, and emission reductions, and on the
cost-effectiveness of each control measure.
(B) Strive to integrate the scheduling of control measures with
the federal planning process for attainment of the federal ambient
air quality standards for particulate matter in an efficient manner,
to the extent that integration does not delay the adoption of control
measures.
(3) An implementation schedule adopted by a district pursuant to
this subdivision may not include a control measure that meets any of
the following criteria:
(A) Is substantially similar to a control measure already adopted
by the district, as determined by the district.
(B) Is substantially similar to a control measure scheduled for
adoption by the district within two years of the adoption of the
implementation schedule, as determined by the district.
(C) The district has determined there is a readily available,
feasible, and cost-effective alternative control measure that will
achieve an equivalent or greater emission reduction.
(D) Is intended to reduce emissions of a precursor to PM 2.5 or PM
10, if the district has adopted and implemented the measure or
scheduled the measure for adoption within two years of the adoption
of the implementation schedule as part of the district's ozone
attainment plan pursuant to subdivision (a) or (b) of Section 40914.
(4) If a district determines that a readily available, feasible,
and cost-effective alternative control measure exists as described in
subparagraph (C) of paragraph (3), the district shall adopt that
measure.
(e) Nothing in this section requires a district to adopt a control
measure to further regulate emissions from any source that operates
under, or requires a district to modify, either of the following
programs:
(1) A market-based incentive program that complies with Section
39616.
(2) An interchangeable emission reduction credit program that is
consistent with the methodology adopted by the state board pursuant
to Section 39607.5.
(f) Nothing in this section is intended to alter or affect any of
the following:
(1) The authority of the state board or a district to adopt a
control measure for PM 2.5 and PM 10 pursuant to this division.
(2) The authority of the state board or a district over
diesel-powered engines established pursuant to this division.
(3) The authority of a district to modify either of the programs
described in paragraph (1) or (2) of subdivision (e).
(4) The authority of a district to adopt measures necessary to
attain state or federal air quality standards.
(g) In identifying control measures for woodstoves and fireplaces
pursuant to paragraph (2) of subdivision (b), the state board shall
include a consideration of rules and regulations encouraging the use
of wood fuel appliances that meet the standards established in
Subpart AAA of Part 60 of Title 40 of the Code of Federal
Regulations.
(h) In adopting the list and implementation schedule pursuant to
this section, the state board is not subject to the rulemaking
provisions of Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code.
(i) Not later than January 1, 2009, the state board shall prepare
a report, and make available to the public, on the actions taken by
the state board and local districts to comply with this section. The
report shall include, but is not limited to, all of the following:
(1) Adopted and proposed rules.
(2) Regulations and programs.
(3) Air quality and public health impacts of state and district
actions taken pursuant to this section.
(4) Cost-effectiveness of rules, regulations, and programs
implemented pursuant to this section.
(5) Recommendations for further actions to assist in achieving
state air quality standards for particulate matter.
(j) This section shall remain in effect only until January 1,
2011, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2011, deletes or extends
that date.
SEC. 217. Section 39661 of the Health and Safety Code is amended
to read:
39661. (a) (1) Upon receipt of the evaluation and recommendations
prepared pursuant to Section 39660, the state board, in consultation
with, and with the participation of, the office, shall prepare a
report in a form that may serve as the basis for regulatory action
regarding a particular substance pursuant to subdivisions (b) and (c)
of Section 39662.
(2) The report shall include and be developed in consideration of
the evaluation and recommendations of the office.
(b) The report, together with the scientific data on which the
report is based, shall, with the exception of trade secrets, be made
available to the public and shall be formally reviewed by the
scientific review panel established pursuant to Section 39670. The
panel shall review the scientific procedures and methods used to
support the data, the data itself, and the conclusions and
assessments on which the report is based. Any person may submit any
information for consideration by the panel, which may, at its
discretion, receive oral testimony. The panel shall submit its
written findings to the state board within 45 days after receiving
the report. The panel may, however, petition the state board for an
extension of the deadline, which may not exceed 15 working days.
(c) If the scientific review panel determines that the health
effects report is not based upon sound scientific knowledge, methods,
or practices, the report shall be returned to the state board, and
the state board, in consultation with, and with the participation of,
the office, shall prepare revisions to the report, which shall be
resubmitted within 30 days following receipt of the panel's
determination to the scientific review panel, which shall review the
report in conformance with subdivision (b) prior to a formal proposal
by the state board pursuant to Section 39662.
SEC. 218. Section 40500.5 of the Health and Safety Code is amended
to read:
40500.5. (a) Notwithstanding Section 40500, the south coast
district board may prohibit the granting of variances by the hearing
board from the provisions of a market-based incentive program adopted
pursuant to Section 39616 that establish procedures for assessing
emissions during periods when monitoring or reporting systems are not
operating as required.
(b) The south coast district board may prohibit the granting of
variances by the hearing board from the minimum federal requirements
for new source performance standards, or for national emissions
standards for hazardous air pollutants, under Sections 7411 and 7412
of Title 42 of the United States Code, unless the district rule at
issue is more stringent than the federal requirement. The south
coast district board shall not prohibit the granting of a variance if
the petitioner for the variance has obtained a waiver from the
Environmental Protection Agency of the federal requirement at issue
and the variance would be consistent with the waiver.
SEC. 219. Section 40724.6 of the Health and Safety Code is amended
to read:
40724.6. (a) On or before July 1, 2005, the state board shall
review all available scientific information, including, but not
limited to, emissions factors for confined animal facilities, and the
effect of those facilities on air quality in the basin and other
relevant scientific information, and develop a definition for the
source category of a "large confined animal facility" for the
purposes of this section. In developing that definition, the state
board shall consider the emissions of air contaminants from those
sources as they may affect the attainment and maintenance of ambient
air quality standards.
(b) Not later than July 1, 2006, each district that is designated
as a federal nonattainment area for ozone as of January 1, 2004,
shall adopt, implement, and submit for inclusion in the state
implementation plan, a rule or regulation that requires the owner or
operator of a large confined animal facility, as defined by the state
board pursuant to subdivision (a), to obtain a permit from the
district to reduce, to the extent feasible, emissions of air
contaminants from the facility.
(c) A district may require a permit for a large confined animal
facility with actual emissions that are less than one-half of any
applicable emissions threshold for a major source in the district for
any air contaminant, including, but not limited to, fugitive
emissions in a manner similar to other source categories, if prior to
imposing that requirement the district makes both of the following
determinations in a public hearing:
(1) A permit is necessary to impose or enforce reductions in
emissions of air pollutants that the district show cause or
contribute to a violation of a state or federal ambient air quality
standard.
(2) The requirement for a source or category of sources to obtain
a permit would not impose a burden on those sources that is
significantly more burdensome than permits required for other similar
sources of air pollution.
(d) The rule or regulation adopted pursuant to subdivision (b)
shall do all of the following:
(1) Require the owner or operator of each large confined animal
facility to submit an application for a permit within six months from
the date the rule or regulation is adopted by the district that
includes both of the following:
(A) The information that the district determines is necessary to
prepare an emissions inventory of all regulated air pollutants
emitted from the operation, including, but not limited to, precursor
and fugitive emissions, using emission factors approved by the state
board in a public hearing.
(B) An emissions mitigation plan that demonstrates that the
facility will use reasonably available control technology in moderate
and serious nonattainment areas, and best available retrofit control
technology in severe and extreme nonattainment areas, to reduce
emissions of pollutants that contribute to the nonattainment of any
ambient air quality standard, and that are within the district's
regulatory authority.
(2) Require the district to act upon an application for permit
submitted pursuant to paragraph (1) within six months of a completed
application, as determined by the district.
(3) Require the owner or operator to implement the plan contained
in the permit approved by the district, and establish a reasonable
period, of not more than three years, after which each permit shall
be reviewed by the district and updated to reflect changes in the
operation or the feasibility of mitigation measures. The updates
required by this paragraph are not required to be submitted for
inclusion into the state implementation plan.
(4) Establish a reasonable compliance schedule for facilities to
implement control measures within one year of the date on which the
permit is approved by the district, and shall provide for 30 days'
public notice and comment on any draft permit.
(e) Prior to adopting a rule or regulation pursuant to subdivision
(b), a district shall, to the extent data are available, perform an
assessment of the impact of the rule or regulation. The district
shall consider the impacts of the rule or regulation in a public
hearing, and make a good faith effort to minimize any adverse
impacts. The assessment shall include all of the following:
(1) The category of sources affected, including, but not limited
to, the approximate number of affected sources, and the size of those
sources.
(2) The nature and quantity of emissions from the category, and
the significance of those emissions in adversely affecting public
health and the environment and in causing or contributing to the
violation of a state or federal ambient air quality standard.
(3) The emission reduction potential.
(4) The impact on employment in, and the economy of, the region
affected.
(5) The range of probable costs to affected sources and
businesses.
(6) The availability and cost-effectiveness of alternatives.
(7) The technical and practical feasibility.
(8) Any additional information on impacts that is submitted to the
district board for consideration.
(f) Nothing in this section shall delay or otherwise affect any
action taken by a district to reduce emissions of air contaminants
from agricultural sources, or any other requirements imposed on a
district or a source of air pollution pursuant to the federal Clean
Air Act (42 U.S.C. Sec. 7401 et seq.).
(g) In adopting a rule or regulation pursuant to this section, a
district shall comply with all applicable requirements of this
division, including, but not limited to, the requirements established
pursuant to Sections 40703, 40727, and 40728.5.
(h) A permitholder may appeal any district determination or
decision required by this section pursuant to Section 42302.1, in
addition to any other applicable remedy provided by law.
(i) Nothing in this section authorizes a district to adopt a rule
or regulation that is duplicative of a rule or regulation adopted
pursuant to Sections 40724 and 40724.5.
(j) Nothing in this section limits the authority of a district to
regulate a source, including, but not limited to, a stationary source
that is an agricultural source over which it otherwise has
jurisdiction pursuant to this division or the federal Clean Air Act
(42 U.S.C. Sec. 7401 et seq.) or any rules or regulations adopted
pursuant to that act. Nothing in this section shall delay or
otherwise affect any action taken by a district to reduce emissions
of air contaminants from agricultural sources, or any other
requirements imposed upon a district or a source of air pollution
pursuant to the federal Clean Air Act. This section may not be
interpreted to delay or otherwise affect adoption, implementation, or
enforcement of any measure that was adopted, or included in a
rulemaking calendar or air quality implementation plan that was
adopted, by the district prior to January 1, 2004.
SEC. 220. Section 41514.1 of the Health and Safety Code is amended
to read:
41514.1. (a) A health facility shall use the most recent standard
set by the Joint Commission on the Accreditation of Healthcare
Organizations for testing diesel backup generators. During each week
that a diesel backup generator is not tested, the generator shall be
started at least once, with or without load, for a period of time
that allows the coolant temperature to stabilize.
(b) A health facility shall submit all data collected under this
section to the State Department of Health Services when requested by
the department.
(c) This section shall remain in effect only until January 1,
2009, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2009, deletes or extends
that date.
(d) For the purposes of this section, "health facility" has the
same meaning as Section 1250, but includes only those facilities
described in subdivision (a), (b), (c), (d), (f), (g), or (k) of that
section.
(e) Nothing in this section affects the authority of the State Air
Resources Board or an air quality management district or air
pollution control district to regulate diesel backup generators owned
by a health facility.
SEC. 221. Section 41855.6 of the Health and Safety Code is amended
to read:
41855.6. The district may postpone the commencement dates set
forth in subdivision (a) of Section 41855.5 for any category of
agricultural waste or crop described if all of the following applies:
(a) The district determines that there is no economically feasible
alternative means of eliminating the waste.
(b) The district determines that there is no long-term federal or
state funding commitment for the continued operation of biomass
facilities in the San Joaquin Valley or development of alternatives
to burning.
(c) The district determines that the continued issuance of permits
for that specific category or crop will not cause, or substantially
contribute to, a violation of an applicable federal ambient air
quality standard.
(d) The state board concurs with the district's determinations
pursuant to this section.
SEC. 222. Section 50517.9 of the Health and Safety Code is amended
to read:
50517.9. (a) In enacting this section, it is the intent of the
Legislature to provide disaster assistance for farmworkers displaced
by the 1997 floods in the most expeditious and fiscally sound manner
possible. It is the intent of the Legislature that the Department of
Housing and Community Development administer this section in
accordance with those goals.
(b) In counties in which a disaster has been declared by the
Governor pursuant to Section 8625 of the Government Code, and for a
period of 12 months after the declaration, the department may award
funds for the purposes of this section, subject to the following
terms and conditions:
(1) Loans may be made to local public entities, nonprofit
corporations, and private property owners to repair, rehabilitate, or
replace housing previously used exclusively by migrant farmworker
households or unaccompanied migrant farmworker adults, which will be
used in the future for those purposes. Loan funds may be used to
acquire or lease "manufactured structures," which, for the purposes
of this section, means structures subject to Part 2 (commencing with
Section 18000) of Division 13. Private property owners shall be
eligible for loans only to the extent that other federal and state
resources, private insurance proceeds, or private institutional
lending sources are not available in a timely manner or do not
provide the coverage needed to rehabilitate or reconstruct the
housing without increasing the rent above that charged for the units
prior to the disaster.
(2) The department may enter into contracts directly with
nonprofit corporations, local public entities, or private property
owners to carry out the activities authorized by this section.
(3) Loans made under this section shall be secured by, and subject
to, security instruments approved by the department, including, but
not limited to, real property leases or liens, regulatory agreements,
and liens on manufactured structures. The department shall
establish loan terms and conditions with consideration to the
financial feasibility and prudent operation of the housing units
financed. In no event shall the loans require interest at a rate
higher than 3-percent simple interest or have a term longer than the
useful life of the housing units. Repayments may be deferred for the
first five years of the loan term, if the department determines that
it is necessary for fiscal integrity or to prevent foreclosure.
(4) In making any loan, the department shall require that the
borrower meet all of the following conditions:
(A) The borrower shall be capable of providing occupancy in
decent, safe, and sanitary housing that meets all of the requirements
of law within six months after the award of funds.
(B) The borrower shall demonstrate the financial feasibility of
the project.
(C) Prior to disbursement of funds, the borrower shall identify
the property on which the housing will be repaired, rehabilitated, or
replaced, and provide information satisfactory to the department
related to the costs and sources of funding necessary to complete the
repairs, rehabilitation, or replacement. All costs shall be
reasonable, considering the necessity of expeditious rehabilitation
or replacement.
(5) Priority for use of the funds shall be given to borrowers who
will provide housing at the earliest date.
(6) All units assisted under this section shall remain affordable
to low- and very low income households for the life of the project.
For the 1997-98 growing season, farmworkers who previously occupied
the damaged or destroyed housing shall have first priority to occupy
any unit assisted under this section.
(7) If units assisted under this section are built or
rehabilitated in the same natural disaster zone as the units damaged
or destroyed by the disaster, the borrower shall maintain disaster
insurance on the units for the useful life of the units. For
purposes of this section, "disaster insurance" means fire,
earthquake, flood, or other insurance against the natural disaster
that damaged or destroyed the housing units.
(8) To the extent that any housing unit that was damaged or
destroyed is reconstructed under this section with substantially the
same number of units, it shall be deemed to be "existing housing" for
the purposes of subdivision (d) of Section 37001.5.
(9) The department may waive any requirements of Section 50517.5
and any regulations promulgated thereunder that are inconsistent with
prompt and effective implementation of the program described in this
section. In addition, any rule, policy, or standard of general
application employed by the department in implementing the provision
of this section shall not be subject to the requirements of Chapter
3.5 (commencing with Section 11340) of Part 12 of Division 3 of Title
2 of the Government Code. Awards of funds made pursuant to this
section shall not be subjected to review or approval by the Local
Assistance Loan and Grant Committee of the department operating
pursuant to Subchapter 1 (commencing with Section 6900) of Chapter
6.5 of Title 25 of the California Code of Regulations.
SEC. 223. Section 51615 of the Health and Safety Code is
amended to read:
51615. (a) Chapter 3.5 (commencing with Section 6250) of Division
7 of Title 1 of, and Article 9 (commencing with Section 11120) of
Chapter 1 of, Chapter 3.5 (commencing with Section 11340) of, Chapter
4 (commencing with Section 11370) of, and Chapter 5 (commencing with
Section 11500) of, Part 1 of Division 3 of Title 2 of, the
Government Code shall apply to the agency with respect to the
administration of the insurance fund.
(b) Notwithstanding subdivision (a), the provisions described in
that subdivision shall not apply to any of the following:
(1) The agency's activities and records relating to establishing
rates and premiums.
(2) Bids or contracts for insurance, coinsurance, and reinsurance.
(3) Other matters necessary to maintain the competitiveness of the
agency in the mortgage insurance industry, including, but not
limited to, the development of financial products.
SEC. 224. Section 53533 of the Health and Safety Code is amended
to read:
53533. (a) Moneys deposited in the fund from the sale of bonds
pursuant to this part shall be allocated for expenditure in
accordance with the following schedule:
(1) Nine hundred ten million dollars ($910,000,000) shall be
transferred to the Housing Rehabilitation Loan Fund to be expended
for the Multifamily Housing Program authorized by Chapter 6.7
(commencing with Section 50675) of Part 2, except for the following:
(A) Fifty million dollars ($50,000,000) shall be transferred to
the Preservation Opportunity Fund and, notwithstanding Section 13340
of the Government Code, is continuously appropriated without regard
to fiscal years for the preservation of at-risk housing pursuant to
Chapter 5 (commencing with Section 50600) of Part 2.
(B) Twenty million dollars ($20,000,000) shall be used for
nonresidential space for supportive services, including, but not
limited to, job training, health services, and child care within, or
immediately proximate to, projects to be funded under the Multifamily
Housing Program. This funding shall be in addition to any
applicable per-unit or project loan limits and may be in the form of
a grant. Service providers shall ensure that services are available
to project residents on a priority basis over the general public.
(C) Twenty-five million dollars ($25,000,000) shall be used for
matching grants to local housing trust funds pursuant to Section
50843.
(D) Fifteen million dollars ($15,000,000) shall be used for
student housing through the Multifamily Housing Program, subject to
the following provisions:
(i) The department shall give first priority for projects on land
owned by a University of California or California State University
campus. Second priority shall be given to projects located within
one mile of a University of California or California State University
campus that is suffering from a severe shortage of housing and
limited availability of developable land as determined by the
department. Those determinations shall be set forth in the Notice of
Funding Availability and shall not be subject to the requirements of
Chapter 3.5 (commencing with Section 11340) of Part 1 of Title 2 of
the Government Code.
(ii) All funds shall be matched on a one-to-one basis from private
sources or by the University of California or California State
University. For the purposes of this subparagraph, "University of
California" includes the Hastings College of the Law.
(iii) Occupancy for the units shall be restricted to students
enrolled on a full-time basis in the University of California or
California State University.
(iv) Income eligibility pursuant to the Multifamily Housing
Program shall be established by verification of the combined income
of the student and his or her family.
(v) Any funds not used for this purpose within 24 months of the
date that the funds are made available shall be awarded pursuant to
subdivision (a) for the Downtown Rebound Program as set forth in
paragraph (1) of subdivision (c) of Section 50898.2.
(E) Any funds not encumbered for the purposes set forth in this
paragraph, except subparagraph (D), within 30 months of availability
shall revert to the Housing Rehabilitation Loan Fund created by
Section 50661 for general use in the Multifamily Housing Program.
(2) One hundred ninety-five million dollars ($195,000,000) shall
be transferred to the Emergency Housing and Assistance Fund to be
expended for the Emergency Housing and Assistance Program authorized
by Chapter 11.5 (commencing with Section 50800) of Part 2.
(3) One hundred ninety-five million dollars ($195,000,000) shall
be transferred to the Housing Rehabilitation Loan Fund to be expended
for supportive housing projects under the Multifamily Housing
Program authorized by Chapter 6.7 (commencing with Section 50675) of
Part 2, to serve individuals and households moving from emergency
shelters or transitional housing or those at risk of homelessness.
(4) Two hundred million dollars ($200,000,000) shall be
transferred to the Joe Serna, Jr. Farmworker Housing Grant Fund to be
expended for farmworker housing programs authorized by Chapter 3.2
(commencing with Section 50517.5) of Part 2, except for the
following:
(A) Twenty-five million dollars ($25,000,000) shall be used for
projects that serve migratory agricultural workers as defined in
subdivision (i) of Section 7602 of Title 25 of the California Code of
Regulations. If, after July 1, 2003, funds remain after the
approval of all feasible applications, the department shall be deemed
an eligible recipient for the purposes of reconstructing migrant
centers operated through the Office of Migrant Services pursuant to
Chapter 8.5 (commencing with Section 50710) that would otherwise be
scheduled for closure due to health or safety considerations or are
in need of significant repairs to ensure the health and safety of the
residents. Of the dollars allocated by this section, the department
shall receive four million one hundred thousand dollars ($4,100,000)
for these purposes.
(B) Twenty million dollars ($20,000,000) shall be used for
developments that also provide health services to the residents.
Recipients of these funds shall be required to provide ongoing
monitoring of funded developments to ensure compliance with the
requirements of the Joe Serna, Jr. Farmworker Housing Grant Program.
Projects receiving funds through this allocation shall be ineligible
for funding through the Joe Serna, Jr. Farmworker Housing Grant
Program.
(C) Any funds not encumbered for the purposes set forth in this
paragraph within 30 months of availability shall revert for general
use in the Joe Serna, Jr. Farmworker Housing Grant Program.
(5) Two hundred five million dollars ($205,000,000) shall be
transferred to the Self-Help Housing Fund. Notwithstanding Section
13340 of the Government Code and Section 50697.1, these funds are
hereby continuously appropriated without regard to fiscal years to
the department to be expended for the purposes of the CalHome Program
authorized by Chapter 6 (commencing with Section 50650) of Part 2,
except for the following:
(A) Seventy-five million dollars ($75,000,000) shall be
transferred to the Building Equity and Growth in Neighborhoods Fund
to be used for the Building Equity and Growth in Neighborhoods
(BEGIN) Program pursuant to Chapter 4.5 (commencing with Section
50860) of Part 1.
(B) Five million dollars ($5,000,000) shall be used to provide
grants to cities, counties, cities and counties, and nonprofit
organizations to provide grants for lower-income tenants with
disabilities for the purpose of making exterior modifications to
rental housing in order to make that housing accessible to persons
with disabilities. For the purposes of this subparagraph, "exterior
modifications" includes modifications that are made to entryways or
to common areas of the structure or property. The program provided
for under this subparagraph shall not be subject to the requirements
of Chapter 3.5 (commencing with Section 11340) of Part 1 of Title 2
of the Government Code.
(C) Ten million dollars ($10,000,000) shall be expended for
construction management under the California Self-Help Housing
Program pursuant to subdivision (b) of Section 50696.
(D) Any funds not encumbered for the purposes set forth in this
paragraph within 30 months of availability shall revert for general
use in the CalHome Program.
(6) Five million dollars ($5,000,000) shall be transferred to the
Housing Rehabilitation Loan Fund to be expended for capital
expenditures in support of local code enforcement and compliance
programs. This allocation shall not be subject to the requirements
of Chapter 3.5 (commencing with Section 11340) of Part 1 of Title 2
of the Government Code. If the moneys allocated pursuant to this
paragraph are not expended within three years after being
transferred, the department may, in its discretion, transfer the
moneys to the Housing Rehabilitation Loan Fund to be expended for the
Multifamily Housing Program.
(7) Two hundred ninety million dollars ($290,000,000) shall be
transferred to the Self-Help Housing Fund. Notwithstanding Section
50697.1, these funds are hereby continuously appropriated to the
agency to be expended for the purposes of the California Homebuyer's
Downpayment Assistance Program authorized by Chapter 11 (commencing
with Section 51500) of Part 3, except for the following:
(A) Fifty million dollars ($50,000,000) shall be transferred to
the School Facilities Fee Assistance Fund as provided by subdivision
(a) of Section 51453 to be used for the Homebuyer Down Payment
Assistance Program of 2002 established by Section 51451.5.
(B) Eighty-five million dollars ($85,000,000) shall be transferred
to the California Housing Loan Insurance Fund to be used for
purposes of Part 4 (commencing with Section 51600). The agency may
transfer these moneys as often as quarterly in amounts that shall not
exceed the dollar amount of new insurance written by the agency
during the preceding quarter for loans for the purchase of homes made
to owner-occupant borrowers with incomes not exceeding 120 percent
of the area median income, divided by the risk-to-capital ratio
required for the maintenance of satisfactory credit ratings from
nationally recognized credit rating services.
(C) (i) Twelve million five hundred thousand dollars ($12,500,000)
shall be reserved for downpayment assistance to low-income
first-time home buyers who, as documented to the agency by a
nonprofit organization certified and funded to provide home ownership
counseling by a federally funded national nonprofit corporation, are
purchasing a residence in a community revitalization area targeted
by the nonprofit organization and who has received home ownership
counseling from the nonprofit organization. Community revitalization
areas shall be limited to targeted neighborhoods identified by
qualified nonprofit organizations as those neighborhoods in need of
economic stimulation, renovation, and rehabilitation through efforts
that include increased home ownership opportunities for low-income
families.
(ii) Effective January 1, 2004, 50 percent of the funds available
pursuant to clause (i) shall be available for downpayment assistance
in an amount not to exceed 6 percent of the home sales price.
(iii) After 12 months of availability, if more than 50 percent of
the funds set aside pursuant to clause (ii) have been encumbered, the
agency shall discontinue that program and make all remaining funds
available for downpayment assistance pursuant to clause (i). If,
however, less than 50 percent of the funds allocated pursuant to
clause (ii) are encumbered after that 12-month period, the agency
may, at its sole discretion, either make all remaining funds provided
pursuant to clause (i) available for the purpose of clause (ii), or
may continue to implement clause (ii) until all of the funds
allocated for that purpose as of January 1, 2004, have been
encumbered.
(D) Twenty-five million dollars ($25,000,000) shall be used for
downpayment assistance pursuant to Section 51505. After 18 months of
availability, if the agency determines that the funds set aside
pursuant to this section will not be utilized for purposes of Section
51505, these funds shall be available for the general use of the
agency for the purposes of the California Homebuyer's Downpayment
Assistance Program, but may also continue to be available for the
purposes of Section 51505.
(E) Funds not utilized for the purposes set forth in subparagraphs
(B) and (C) within 30 months shall revert for general use in the
California Homebuyer's Downpayment Assistance Program.
(8) One hundred million dollars ($100,000,000) shall be
transferred to the Jobs Housing Improvement Account to be expended as
capital grants to local governments for increasing housing pursuant
to enabling legislation. If the enabling legislation fails to become
law in the 2001-02 Regular Session of the Legislature, the specified
allocation for this program shall be void and the funds shall revert
for general use in the Multifamily Housing Program as specified in
paragraph (1) of subdivision (a).
(b) No portion of the money allocated pursuant to this section may
be expended for project operating costs, except that this section
does not preclude expenditures for operating costs from reserves
required to be maintained by or on behalf of the project sponsor.
(c) The Legislature may, from time to time, amend the provisions
of law related to programs to which funds are, or have been,
allocated pursuant to this section for the purpose of improving the
efficiency and effectiveness of the program, or for the purpose of
furthering the goals of the program.
(d) The Bureau of State Audits shall conduct periodic audits to
ensure that bond proceeds are awarded in a timely fashion and in a
manner consistent with the requirements of this part, and that
awardees of bond proceeds are using funds in compliance with
applicable provisions of this part.
SEC. 225. Section 101625 of the Health and Safety Code is amended
to read:
101625. The authority is hereby declared to be a body corporate
and politic and shall have power:
(a) To have perpetual succession.
(b) To sue and be sued in the name of the authority in all actions
and proceedings in all courts and tribunals of competent
jurisdiction.
(c) To adopt a seal and alter it at pleasure.
(d) To take by grant, purchase, gift, devise, or lease, to hold,
use, and enjoy, and to lease, convey, or dispose of, real and
personal property of every kind, within or without the boundaries of
the authority, necessary or convenient to the full exercise of its
powers. The board may lease, mortgage, sell, or otherwise dispose of
any real or personal property within or without the boundaries of
the authority necessary to the full or convenient exercise of its
powers.
(e) To make and enter into contracts with any public agency or
person for the purposes of this chapter.
(f) To appoint and employ an executive director and other
employees as may be necessary, including legal counsel, establish
their compensation, and define their powers and duties. The board
shall prescribe the amounts and forms of fidelity bond of its
officers and employees. The cost of these bonds shall be borne by
the authority. The employees and each of them shall serve at the
pleasure of the board. The authority may also contract for the
services of an independent contractor.
(g) To incur indebtedness.
(h) To purchase supplies, equipment, materials, property, or
services.
(i) To establish policies relating to its purposes.
(j) To acquire or contract to acquire, rights-of-way, easements,
privileges, or property of every kind within or without the
boundaries of the authority, and construct, equip, maintain, and
operate any and all works or improvements within or without the
boundaries of the authority necessary, convenient, or proper to carry
out any of the provisions, objects, or purposes of this chapter, and
to complete, extend, add to, repair, or otherwise improve any works
or improvements acquired by it.
(k) To make contracts and enter into stipulations of any nature
upon the terms and conditions that the board finds are for the best
interest of the authority for the full exercise of the powers granted
in this chapter.
(l) To accept gifts, contributions, grants, or loans from any
public agency or person for the purposes of this chapter.
The authority may do any and all things necessary in order to
avail itself of gifts, contributions, grants, or loans, and cooperate
under any federal or state legislation in effect on January 25,
1982, or enacted after that date.
(m) To invest any surplus money in its treasury in the same manner
as the County of Monterey and according to the same laws.
(n) To negotiate with service providers rates, charges, fees, and
rents, and to establish classifications of health care systems
operated by the authority.
(o) To develop and implement health care delivery systems to
promote quality care and cost efficiency.
(p) To provide health care delivery systems for any or all of the
following:
(1) For all persons who are eligible to receive medical benefits
under the Medi-Cal Act (Chapter 7 (commencing with Section 14000) of
Part 3 of Division 9 of the Welfare and Institutions Code) in
Monterey County through waiver, pilot project, or otherwise.
(2) For all persons in Monterey County who are eligible to receive
medical benefits under both Titles XVIII and XIX of the Social
Security Act.
(3) For all persons from Monterey County or any city in that
county who are eligible to receive health care under Parts 4.5
(commencing with Section 16700) and 5 (commencing with Section 17000)
of Division 9 of the Welfare and Institutions Code.
(q) To insure against any accident or destruction of its health
care system or any part thereof. It may insure against loss of
revenues from any cause. The district may also provide insurance as
provided in Part 6 (commencing with Section 989) of Division 3.6 of
Title 1 of the Government Code.
(r) To exercise powers that are expressly granted and powers that
are reasonably implied from those express powers and necessary to
carry out the purposes of this chapter.
(s) To do any and all things necessary to carry out the purposes
of former Division 1 (commencing with Section 1).
SEC. 226. Section 104558 of the Health and Safety Code is amended
to read:
104558. (a) In order to secure and protect the moneys to be
received as a result of the Master Settlement Agreement, as defined
in subdivision (e) of Section 104556, in civil litigation under any
legal theory involving a signatory, successor of a signatory, or an
affiliate of a signatory to the Master Settlement Agreement that has
not been brought to trial as of the effective date of this section,
the amount of the required undertaking, bond, or equivalent surety to
be furnished during the pendency of an appeal or any discretionary
appellate review of any judgment granting legal, equitable, or any
other form of relief in order to stay the execution thereon during
the entire course of the appellate review shall be set in accordance
with applicable laws and rules of the court, except that the total
undertaking, bond, or equivalent surety that is required per case,
whether individual, aggregate, or otherwise, of all appellants,
collectively, may not exceed 100 percent of the verdict or one
hundred fifty million dollars ($150,000,000) whichever is less,
regardless of the value of the judgment.
(b) Nothing in this section or any other provision of law shall be
construed to eliminate the discretion of the court, for good cause
shown, to set the undertaking or bond on appeal in an amount lower
than that otherwise established by law.
(c) If the appellee proves by a preponderance of the evidence that
a party bringing an appeal or seeking a stay of execution of
judgment and for whom the undertaking has been limited under this
section, is intentionally dissipating or diverting assets outside the
ordinary course of its business for the purpose of avoiding ultimate
payment of the judgment, any limitation under subdivision (a) may be
rescinded and the court may order any actions necessary to prevent
dissipation or diversion of the assets.
SEC. 227. Section 106010 of the Health and Safety Code is amended
to read:
106010. (a) The clinical centers described in Section 106000
shall include the Stroke and Hypertension Center, the Obesity and
Nutrition Center, and the HIV/AIDS Center.
(b) The centers shall target and address illnesses that are
related biologically and clinically and are characterized by outcomes
that are disparate between minority populations and that of the
overall community.
(c) The centers shall initially focus on health promotion, disease
prevention, health risk assessment, and health screening services in
connection with target medical conditions in minority populations
that are experiencing disparate outcomes in relation to the overall
community in regard to target conditions. However, over time, each
center shall develop a portfolio of projects that also address these
target conditions in all racial, ethnic, and cultural groups.
SEC. 228. Section 115005 of the Health and Safety Code is amended
to read:
115005. In addition to the requirements imposed by Section
115000, the department shall develop an overall plan, in consultation
with other state, regional, and federal agencies, for the
management, treatment, and disposal of low-level radioactive waste
generated within California. The plan shall contain, at a minimum,
all of the following elements:
(a) Specific contingency plans to address the needs of the state
for the short-term storage of low-level radioactive waste in the
event of a precipitous closure of existing out-of-state commercial
waste disposal facilities and to evaluate feasible alternatives for
meeting the state's needs. This element of the plan shall include,
but is not limited to, all of the following factors:
(1) The amount and kinds of low-level radioactive waste generated
by California licensees and current disposal locations.
(2) The size and nature of an interim storage facility required to
meet California's interim low-level radioactive waste disposal
needs.
(3) The cost of developing and operating an interim storage site
by the department or contracting organizations.
(4) Criteria for the siting of an interim storage site, including,
but not limited to, all of the following:
(A) Proximity to population.
(B) Geologic stability.
(C) Proximity to ground or surface water.
(D) Availability of transportation.
(E) General public health and economic considerations.
This element of the plan shall be completed and submitted to the
appropriate committees of each house of the Legislature on or before
December 31, 1982.
(b) A classification scheme for the separation of low-level waste
that will facilitate the management, treatment, storage, and ultimate
disposal of the waste. This classification scheme shall consider
the matters as possible de minimis radiation levels for specific
radionuclides, the quantity and specific activity of the material,
its persistence, toxicity, chemical form, reactivity, and the
principal radionuclides present. The classification scheme shall
also include the specifications necessary to determine which classes
of waste may or may not be accepted for storage in an interim storage
facility established pursuant to Section 115045, that may or may not
be held by the licensee for decay to specified residual
radioactivity levels and that require long-term isolation from the
environment, as the case may be, for the protection of the public
health and safety. The department may require as a condition of
licensure the submission of information necessary to determine the
total amount of waste produced in each class of the classification
scheme. The department may, by regulation, adopt the classification
scheme establishing which wastes may or may not be accepted at an
interim storage facility or at a treatment or disposal facility.
This element of the plan shall be completed and submitted to the
appropriate committees of each house of the Legislature on or before
December 31, 1982.
(c) Siting criteria for potential land burial disposal sites and
treatment facilities within the state. In establishing these
criteria, the department shall consider the following factors,
including, but not limited to:
(1) The present and projected future uses of land, water, and
natural resources.
(2) The proximity of the site to major population centers.
(3) The presence of active earthquake faults.
(4) Geologic and other natural barriers that protect against
surface or groundwater contamination.
(5) The effectiveness of engineered barriers, waste treatment, and
waste packaging in ensuring isolation of the waste from the
environment.
(6) Transportation of radioactive materials as it relates to
public health and safety.
(7) The relative economic impact of location and operation of
treatment or disposal facilities.
This element of the plan shall be completed and submitted to the
appropriate committees of each house of the Legislature on or before
December 31, 1982.
(d) A plan of action to minimize the environmental, occupational,
and public health impact of low-level radioactive waste and to
protect the public health and safety by encouraging a reduction in
the amount and toxicity of waste produced. This activity shall
include conducting or having studies conducted that evaluate the
technical and economic feasibility of (1) reducing the volume,
reactivity, and chemical and radioactive hazard of the waste, (2)
cleaning contaminated, nonactivated metals and other materials to
permit their recycle and reuse, and (3) substituting nonradioactive
or short-lived radioactive materials for those radionuclides that
require long-term isolation from the environment. The results of
these studies, along with the departmental recommendations for their
implementation, shall be reported by the department to the
appropriate committees of the Legislature on or before December 31,
1983.
(e) Within six months after September 28, 1983, the Governor shall
direct the appropriate state agency or agencies, as determined by
the Governor, to conduct and complete a study that identifies those
regions of the state within which it is likely the criteria developed
pursuant to subdivision (c)
could be met. The state agency or agencies, so directed, may also
request, when appropriate, the assistance of state or federal
agencies or private organizations.
SEC. 229. Section 121010 of the Health and Safety Code is amended
to read:
121010. Notwithstanding Section 120975 or 120980, the results of
a blood test to detect antibodies to the probable causative agent of
AIDS may be disclosed to any of the following persons without written
authorization of the subject of the test:
(a) To the subject of the test or the subject's legal
representative, conservator, or to any person authorized to consent
to the test pursuant to subdivision (b) of Section 120990.
(b) To a test subject's provider of health care, as defined in
subdivision (d) of Section 56.05 of the Civil Code, except that for
purposes of this section, "provider of health care" does not include
a health care service plan regulated pursuant to Chapter 2.2
(commencing with Section 1340) of Division 2.
(c) To an agent or employee of the test subject's provider of
health care who provides direct patient care and treatment.
(d) To a provider of health care who procures, processes,
distributes, or uses a human body part donated pursuant to the
Uniform Anatomical Gift Act (Chapter 3.5 (commencing with Section
7150) of Part 1 of Division 7).
(e) (1) To the designated officer of an emergency response
employee, and from that designated officer to an emergency response
employee regarding possible exposure to HIV or AIDS, but only to the
extent necessary to comply with provisions of the Ryan White
Comprehensive AIDS Resources Emergency Act of 1990 (P.L. 101-381; 42
U.S.C. Sec. 201).
(2) For purposes of this subdivision, "designated officer" and
"emergency response employee" have the same meaning as these terms
are used in the Ryan White Comprehensive AIDS Resources Emergency Act
of 1990 (P.L. 101-381; 42 U.S.C. Sec. 201).
(3) The designated officer shall be subject to the confidentiality
requirements specified in Section 120980, and may be personally
liable for unauthorized release of any identifying information about
the HIV results. Further, the designated officer shall inform the
exposed emergency response employee that the employee is also subject
to the confidentiality requirements specified in Section 120980, and
may be personally liable for unauthorized release of any identifying
information about the HIV test results.
SEC. 230. The heading of Chapter 8 (commencing with Section
127670) of Part 2 of Division 107 of the Health and Safety Code is
amended to read:
CHAPTER 8. CALIFORNIA HEALTH CARE QUALITY IMPROVEMENT AND COST
CONTAINMENT COMMISSION
SEC. 231. Section 127670 of the Health and Safety Code is amended
to read:
127670. The Legislature finds and declares the following:
(a) California's health care system needs to be reformed to
provide high quality accessible, affordable, and equitable care and
treatment.
(b) Too many Californians are unable to obtain affordable, high
quality health care.
(c) The rising costs associated with health care are driven by
numerous factors, including, but not limited to, the following:
(1) Prescription drug spending, including costs of research and
development and marketing and increased drug utilization.
(2) Hospital rates.
(3) Health insurance premium rates.
(4) Provider rates.
(5) Health system inefficiencies.
(6) Fraud and abuse in the health care system.
(7) Technology development and utilization.
(8) Emergency room overutilization.
(9) Inequitable allocation of services and treatment to different
segments of the population.
(10) Cost shifting, which occurs when the costs of providing
uncompensated health care to uninsured individuals is shifted to
those with health insurance, driving health care prices and insurance
premiums higher.
(d) Health care cost containment is an important part of enabling
the health care coverage system to provide high quality care in a
manner that improves patient outcomes.
(e) Evidence-based medicine may improve cost-effectiveness and
care to patients by using scientific evidence to determine clinical
practice, drug therapy, and other measures that improve the quality
of care in a cost-effective manner while taking into account the
special needs of individual patients. To improve quality as well as
cost-effectiveness, evidence-based medicine should take into account
the special needs of persons with disabilities as well as the racial,
ethnic, and gender disparities in health research and the provision
of health care.
(f) Chronic diseases, such as heart disease, stroke, asthma,
cancer, and diabetes, are among the most prevalent, costly, and
preventable of all health problems. Seventy-eight percent of health
care costs can be attributed to the treatment of chronic conditions.
"Disease management" provides a strategy to improve patient health
outcomes and limit health care spending by identifying and monitoring
high-risk populations, helping patients and providers better adhere
to proven interventions, engaging patients in their own care
management, and establishing more coordinated care interventions and
followup systems to prevent unnecessary and expensive health
complications. These disease management strategies should be tailored
to fit the needs of each patient. Disease management is most
effective when it takes into account racial, ethnic, and gender
disparities in health research and the provision of health care.
(g) Without reform, California's health care system may fail to
deliver the affordable quality care that all Californians deserve.
(h) It is the intent of the Legislature to make available valid
performance information to encourage hospitals and physicians to
provide care that is safe, medically effective, patient-centered,
timely, efficient, and equitable. It is also the intent of the
Legislature to strengthen the ability of the Office of Statewide
Health Planning and Development to put hospital performance
information into the hands of consumers, purchasers, and providers.
(i) It is the intent of the Legislature to encourage health care
service plans, health insurers, and providers to develop innovative
approaches, services, and programs that may have the potential to
deliver health care that is both cost-effective and responsive to the
needs of enrollees.
SEC. 232. Section 127671 of the Health and Safety Code is amended
to read:
127671. (a) The Governor shall convene the California Health Care
Quality Improvement and Cost Containment Commission, hereinafter
referred to as "the commission," to research and recommend
appropriate and timely strategies for promoting high quality care and
containing health care costs.
(b) The commission shall be composed of 27 members who are
knowledgeable about the health care system and health care spending.
(c) The Governor shall appoint 17 members of the commission, as
follows:
(1) Three representatives of California's business community,
including at least one representative from a small business.
(2) Two representatives from organized labor, one of whom
represents health care workers.
(3) Two representatives of consumers.
(4) Two health care practitioners, including at least one
physician.
(5) One representative of the disabilities community.
(6) One hospital industry representative.
(7) One pharmaceutical industry representative.
(8) Two representatives of the health insurance industry, one with
expertise in managed health care delivery systems and one with
expertise in health insurance underwriting and rating.
(9) One representative of academic or health care policy research
institutions.
(10) One health care economist.
(11) One expert in disease management techniques and wellness
programs.
(d) The Senate Committee on Rules shall appoint four members, with
two members from the majority party and two from the minority party.
(e) The Speaker of the Assembly shall appoint four members, of
which two members shall be the Chair and Vice Chair of the Assembly
Committee on Health.
(f) The Secretary of the Health and Human Services Agency and the
Director of the Department of Managed Health Care shall serve as
members of the commission.
(g) The Governor shall appoint the chairperson of the commission.
(h) The commission shall, on or before January 1, 2005, issue a
report to the Legislature and the Governor making recommendations for
health care quality improvement and cost containment. The
commission shall, at a minimum, examine and address the following
issues:
(1) Assessing California health care needs and available
resources.
(2) Lowering the cost of health care coverage.
(3) Increasing patient choices of health coverage options and
providers.
(4) Improving the quality of health care.
(5) Increasing the transparency of health care costs and the
relative efficiency with which care is delivered.
(6) Potential for integration with workers' compensation
insurance.
(7) Use of disease management, wellness, prevention, and other
innovative programs to keep people healthy while reducing costs and
improving health outcomes.
(8) Consolidation of existing state programs to achieve
efficiencies where possible.
(9) Efficient utilization of prescription drugs and technology.
(i) Notwithstanding any other provision of law, the members of the
task force shall receive no per diem or travel expense
reimbursement, or any other expense reimbursement.
SEC. 233. Section 127760 of the Health and Safety Code is amended
to read:
127760. The Legislature finds and declares that:
(a) Planning for appropriate supplies and distribution of health
care personnel is essential to assure the continued health and
well-being of the people of the state and also to contain excess
costs that may result from unnecessary training and underutilization
of health care personnel.
(b) The information on physicians and surgeons collected by the
Medical Board of California, in cooperation with the office, and
under the authority of Sections 921 and 923 of the Business and
Professions Code, has proven to be valuable for health manpower
planning purposes. It is the intent of the Legislature, through this
article, to provide for the efficient collection and analysis of
similar information on other major categories of healing arts
licentiates, in order to facilitate the development of the biennial
health manpower plan and other reports and program activities of the
office.
(c) It is the intent of the Legislature that the data transmitted
to the office by the various boards be processed by the boards so
that licentiates are not identified by name or license number.
SEC. 234. Section 128401 of the Health and Safety Code is amended
to read:
128401. (a) The Office of Statewide Health Planning and
Development shall adopt regulations establishing the statewide
Associate Degree Nursing (A.D.N.) Scholarship Pilot Program.
(b) Scholarships under the pilot program shall be available only
to students in counties determined to have the most need. Need in a
county shall be established based on consideration of all the
following factors:
(1) Counties with a registered nurse to population ratio equal or
less than 500 registered nurses per 100,000 individuals.
(2) County unemployment rate.
(3) County level of poverty.
(c) A scholarship recipient shall be required to complete, at a
minimum, an associate degree in nursing and work in a medically
underserved area in California upon obtaining his or her license from
the Board of Registered Nursing.
(d) The Health Professions Education Foundation shall consider the
following factors when selecting recipients for the A.D.N.
Scholarship Pilot Program:
(1) An applicant's economic need, as established by the federal
poverty index.
(2) Applicants who demonstrate cultural and linguistic skills and
abilities.
(e) The pilot program shall be funded from the Registered Nurse
Education Fund established pursuant to Section 128400 and
administered by the Health Professions Education Foundation within
the office. The Health Professions Education Foundation shall
allocate a portion of the moneys in the fund for the pilot program
established pursuant to this section, in addition to moneys otherwise
allocated pursuant to this article for scholarships and loans for
associate degree nursing students.
(f) No additional staff or General Fund operating costs shall be
expended for the pilot program.
(g) The Health Professions Education Foundation may accept private
or federal funds for purposes of the A.D.N. Scholarship Pilot
Program.
(h) This section shall remain in effect only until January 1,
2009, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2009, deletes or extends
that date.
SEC. 235. Section 881 of the Insurance Code is amended to read:
881. The commissioner shall require the name or any changed name
of every insurer (including reciprocal or interinsurance exchanges),
every attorney in fact, every motor club, and every underwritten
title company to be submitted to him or her by written application
and approved by him or her before the name is used in this state for
business purposes. If approved, the commissioner shall issue his or
her official certificate approving the name, and when appropriate,
reserving the name for the following time periods, which shall
commence on the date of the approval:
(1) One year if the applicant is newly formed, or if the
application is filed on behalf of an entity to be formed, under the
laws of this state.
(2) One hundred eighty days and during the pendency in good faith
of an application for certificate of authority in the case of a
foreign or alien applicant.
(3) Ninety days in the case of an admitted entity requesting
authority to change the name under which it will conduct its business
with the public in this state.
Except in the case in which an applicant has already paid a fee on
a pending application for admission, the commissioner shall collect
a fifty-eight dollar ($58) fee for filing each application for name
approval and reservation. An application for name approval may
contain not more than three names in the order of applicant's
preference and the commissioner's approval shall be limited to only
one name submitted by any one application.
The certificate of approval shall be attached to the articles of
incorporation before the Secretary of State shall file the articles
or any amended articles. The commissioner may reject any name
submitted when it is an interference with, or too similar to one
already appropriated, or when it is likely to mislead the public in
any respect. In the event of a rejection, the applicant shall
legally change its name to one approved by the commissioner or, if a
foreign or alien insurer, may arrange to conduct any business it may
do with the public in California under an approved name as an
operating name, identifying itself under both its true name and
operating name in the conduct of all official business with the
commissioner.
Notwithstanding the provisions of Sections 1282 and 12221, the
provisions of this section shall apply to reciprocal insurers,
including their attorneys in fact, and shall apply to motor clubs,
respectively.
SEC. 236. Section 1063.53 of the Insurance Code is amended to
read:
1063.53. (a) In the event a natural disaster such as an
earthquake or fire results in covered claim obligations currently
payable and owed by the association in excess of its capacity to pay
from current funds and current premium assessments allowable under
Section 1063.5, and upon a declaration of emergency by the Governor
or the President of the United States, the board, in its sole
discretion, may by resolution request the department to issue bonds
pursuant to this article to provide funds for the payment of covered
claims and expenses related thereto. Should the bonds be issued, the
department shall have the authority to levy upon member insurers
insurance assessments in the amount necessary to pay the principal of
and interest on the bonds, and to meet other requirements
established by agreements relating to the bonds. The department may
enter into an agreement with CIGA for CIGA to act as agent for the
department to collect the assessments.
The department may assume the obligation to pay the covered claims
of insolvent insurers for the purpose of paying the claims with the
proceeds of the bonds. The obligation of the department to pay
claims shall be a limited obligation payable only out of the proceeds
of the bonds. The department shall enter into an agreement with
CIGA for CIGA to act as agent of the department to adjust and
administer the payment of the claims. Premium payments collected
pursuant to this authority may only be used for servicing the bond
obligations provided for in this section and may be pledged for that
purpose. Premium assessments made pursuant to this section shall
also be subject to the surcharge provisions in Sections 1063.14 and
1063.145.
(b) In addition to the premium assessments provided for in this
section, the board in its discretion and subject to other obligations
of the association, may utilize current funds of the association,
premium assessments made under Section 1063.5, and advances or
dividends received from the liquidators of insolvent insurers to pay
the principal and interest on any bonds issued at the board's
request.
SEC. 237. Section 1067.08 of the Insurance Code is amended to
read:
1067.08. (a) For the purpose of providing the funds necessary to
carry out the powers and duties of the association, the board of
directors shall assess the member insurers, separately for each
account, at the time and for the amounts as the board finds
necessary. Assessments shall be due not more than 30 days after
prior written notice to the member insurers and shall accrue interest
at the rate of 10 percent per annum on and after the due date.
(b) There shall be two assessments, as follows:
(1) Class A assessments shall be made for the purpose of meeting
administrative and legal costs and other expenses and examinations
conducted under the authority of subdivision (e) of Section 1067.11.
Class A assessments may be made whether or not related to a
particular impaired or insolvent insurer.
(2) Class B assessments shall be made to the extent necessary to
carry out the powers and duties of the association under Section
1067.07 with regard to an impaired or an insolvent insurer.
(c) (1) The amount of any class A assessment shall be determined
by the board and may be made on a pro rata or non-pro rata basis. If
pro rata, the board may provide that it be credited against future
class B assessments. A non-pro rata assessment shall not exceed two
hundred fifty dollars ($250) per member insurer in any one calendar
year. The amount of any class B assessment shall be allocated for
assessment purposes among the accounts pursuant to an allocation
formula that may be based on the premiums or reserves of the impaired
or insolvent insurer or any other standard deemed by the board in
its sole discretion as being fair and reasonable under the
circumstances.
(2) Class B assessments against member insurers for each account
shall be in the proportion that the premiums received on business in
this state by each assessed member insurer on policies or contracts
covered by each account for the three most recent calendar years for
which information is available preceding the year in which the
insurer became impaired or insolvent, as the case may be, bears to
premiums received on business in this state for those calendar years
by all assessed member insurers.
(3) Assessments for funds to meet the requirements of the
association with respect to an impaired or insolvent insurer shall
not be made until necessary to implement the purposes of this
article. Classification of assessments under subdivision (b) and
computation of assessments under this subdivision shall be made with
a reasonable degree of accuracy, recognizing that exact
determinations may not always be possible.
(d) The association may abate or defer, in whole or in part, the
assessment of a member insurer if, in the opinion of the board,
payment of the assessment would endanger the ability of the member
insurer to fulfill its contractual obligations. In the event an
assessment against a member insurer is abated, or deferred in whole
or in part, the amount by which that assessment is abated or deferred
may be assessed against the other member insurers in a manner
consistent with the basis for assessments set forth in this section.
(e) (1) The total of all assessments upon a member insurer for any
account shall not in any one calendar year exceed 1 percent of the
insurer's average premiums received in this state on the policies and
contracts covered by the account during the three calendar years
preceding the year in which the insurer became an impaired or
insolvent insurer. If the maximum assessment, together with the
other assets of the association in any account, does not provide in
any one year in that account an amount sufficient to carry out the
responsibilities of the association, the necessary additional funds
shall be assessed as soon thereafter as permitted by this article.
(2) The board may provide in the plan of operation a method of
allocating funds among claims, whether relating to one or more
impaired or insolvent insurers, when the maximum assessment will be
insufficient to cover anticipated claims.
(f) The board may, by an equitable method as established in the
plan of operation, refund to member insurers, in proportion to the
contribution of each insurer to that account, the amount by which the
assets of the account exceed the amount the board finds is necessary
to carry out during the coming year the obligations of the
association with regard to that account, including assets accruing
from assignment, subrogation, net realized gains, and income from
investments. A reasonable amount may be retained in any account to
provide funds for the continuing expenses of the association and for
future losses.
(g) It shall be proper for any member insurer, in determining its
premium rates and policyowner dividends as to life or annuity of
insurance within the scope of this article, to consider the amount
reasonably necessary to meet its assessment obligations under this
article.
(h) The association shall issue to each insurer paying an
assessment under this article, other than class A assessment, a
certificate of contribution, in a form prescribed by the
commissioner, for the amount of the assessment so paid. All
outstanding certificates shall be of equal dignity and priority
without reference to amounts or date of issue. A certificate of
contribution may be shown by the insurer in its financial statement
as an asset in the form and for the amount, if any, and period of
time as the commissioner may approve.
(i) (1) Subject to the provisions of paragraph (3), the plan of
operation adopted pursuant to Section 1067.09 shall contain
provisions whereby each member insurer is required to recoup over a
reasonable length of time a sum reasonably calculated to recoup the
assessments with respect to the health insurance account paid by the
member insurer under this article by way of a surcharge on premiums
charged for health insurance policies to which this article applies.
Amounts recouped shall not be considered premiums for any other
purpose, including the computation of gross premium tax or agent's
commission.
(2) Member insurers who collect surcharges in excess of
assessments paid pursuant to this section for an insolvent insurer
shall remit the excess to the association as an additional assessment
within 120 days after the end of the collection period as determined
by the association. The excess shall be applied to reduce future
health insurance account assessments for that insurer.
(3) The plan of operation may permit a member insurer to omit the
collection of the surcharge from its insureds when it determines the
amount of the surcharge collectible from each insured would be
unreasonably small in relation to the potential confusion of or
objection by the insureds even if the aggregate surcharges
collectible from all insureds exceeds the expense of collection.
(j) Any statement of the amount of surcharge required to be
provided by the association shall include a description of, and
purpose for, the California Life and Health Insurance Guarantee
Association, as follows:
"Companies writing health insurance business in California are
required to participate in the California Life and Health Insurance
Guarantee Association. If a company writing health insurance becomes
insolvent, the California Life and Health Insurance Guarantee
Association settles unpaid claims and assesses each insurance company
for its fair share."
"California law requires all companies to surcharge policies to
recover these assessments. If your policy is surcharged, "CA
Surcharge" with an amount will be displayed on your premium notice."
SEC. 238. Section 1104.9 of the Insurance Code is amended to read:
1104.9. (a) (1) As used in this section, "qualified custodian"
means: (A) commercial banks (as defined in Section 105 of the
Financial Code), savings and loan associations (as defined in Section
5102 of the Financial Code), and trust companies (other than trust
departments of title insurance companies), or any entity approved by
the commissioner as a qualified custodian; (B) that is domiciled and
has a principal place of business in this state; and (C) that either
has a net worth of at least one hundred million dollars
($100,000,000) or is able to demonstrate to the satisfaction of the
commissioner that it is financially secure. The commissioner may
consider, among other factors, evidence of the following in order to
determine whether a custodian is financially secure for the purpose
of this subdivision: (i) its obligations under an agreement approved
by the commissioner pursuant to subdivision (c) are guaranteed by
its parent holding company, (ii) its parent holding company has a net
worth of at least one hundred million dollars ($100,000,000), or
(iii) it is a member of a holding company system with a net worth of
at least one hundred million dollars ($100,000,000).
(2) As used in this section,
"qualified depository" means an entity that is located in this state
or a reciprocal state and is (A) a depository that provides for the
long-term immobilization of securities or a clearing corporation that
is also a depository, and that in either case has been approved by
or registered with the Securities and Exchange Commission, (B) a
Federal Reserve bank, or (C) an entity approved by the commissioner
as a qualified depository.
A "qualified depository" may also include an entity that is
located outside the United States, if it is a securities depository
and clearing agency, incorporated or organized under the laws of a
country other than the United States, (i) that operates a
transnational system for securities or equivalent book entries
(specifically Euroclear and Cedel, or successors to all or
substantially all of their operations), or (ii) that operates a
central system for securities or equivalent book entries, but solely
for securities issued by, or by entities within, the country in which
the securities depository and clearing agency is incorporated or
organized. The depository shall meet all qualifying requirements
imposed by this section upon Euroclear or Cedel.
(3) As used in this section, "qualified subcustodian" means an
entity located in this state or a reciprocal state (A) that holds
securities of the domestic insurer, and maintains an account through
which the securities are held, in this state or a reciprocal state
and (B) that has shareholder equity of at least one hundred million
dollars ($100,000,000) or is able to demonstrate to the satisfaction
of the commissioner that it is financially secure. The qualified
subcustodian shall be: (A) a commercial bank, a savings and loan
association, or a trust company (other than trust departments of
title insurance companies); (B) a subsidiary of a qualified
custodian; or (C) any entity approved by the commissioner as a
qualified subcustodian. The commissioner may consider, among other
factors, evidence of the following in order to determine whether a
subcustodian is financially secure for the purpose of this
subdivision: (i) its obligations are guaranteed by its parent
company, (ii) its parent holding company has shareholder equity of at
least one hundred million dollars ($100,000,000), or (iii) it is a
member of a holding company system with shareholder equity of at
least one hundred million dollars ($100,000,000). A "qualified
subcustodian" may also include an entity that is located outside the
United States, that is used by the domestic insurer for the purpose
of obtaining access to a qualified depository located outside the
United States. The qualified foreign subcustodian shall be a banking
institution or trust company, incorporated or organized under the
laws of a country other than the United States, that is regulated by
that country's government or an agency thereof, and that has
shareholders' equity in excess of two hundred million dollars
($200,000,000), whether in United States dollars or the equivalent of
United States dollars, as of the close of its most recently
completed fiscal year; or a majority-owned direct or indirect
subsidiary of a qualified United States bank or bank holding company,
if the subsidiary is incorporated or organized under the laws of a
country other than the United States and has shareholders' equity in
excess of one hundred million dollars ($100,000,000), whether in
United States dollars or the equivalent of United States dollars, as
of the close of its most recently completed fiscal year; or is able
to demonstrate to the satisfaction of the commissioner that it is
financially secure. The commissioner may consider, among other
factors, evidence of the following in order to determine whether a
qualified foreign subcustodian is financially secure for purposes of
this subdivision: (i) its obligations are guaranteed by its parent
company, (ii) its parent holding company has shareholder equity of at
least two hundred million dollars ($200,000,000), or (iii) it is a
member of a holding company system with shareholder equity of at
least two hundred million dollars ($200,000,000).
(4) As used in this section, "subsidiary" means: (A) an entity
all of whose voting securities (other than director qualifying
shares, if any) are owned, directly or indirectly, by a qualified
custodian; or (B) any affiliated entity approved by the commissioner
as a subsidiary of a qualified custodian. For the purpose of this
section, an affiliated entity means an entity that (A) controls or is
controlled, either directly or indirectly or through one or more
intermediaries by a qualified custodian or (B) is under the common
control, directly or indirectly, as or with a qualified custodian.
(5) As used in this section, "entity approved by the commissioner
as a qualified custodian," "entity approved by the commissioner as a
qualified depository," "entity approved by the commissioner as a
qualified subcustodian," and "entity approved by the commissioner as
a subsidiary of a qualified custodian" mean those entities that meet
the conditions or standards established by the commissioner. The
commissioner shall charge and collect in advance a one-time fee of
one thousand five hundred dollars ($1,500) to review an application
for approval of any entity pursuant to this section.
(6) As used in this section, "reciprocal state" has the same
meaning as in subdivision (f) of Section 1064.1.
(7) As used in this section, "moneys" means cash held incidental
to securities transactions occurring in the ordinary course of
business with respect to securities held pursuant to the custodial
agreements under this section.
(8) (A) Except as provided in subparagraph (B), as used in this
section, "insurer," "domestic insurer," and "domestic admitted
insurer" mean any insurer, other than a domestic life insurer that is
incorporated or that has its principal place of business in this
state. Except as provided in subparagraph (B), no portion of this
section applies to domestic life insurers nor shall this section
affect the interpretation of any other portion of this code with
respect to domestic life insurers nor is it intended to create a
precedent for the application of its provisions to those insurers.
However, the exclusion of domestic life insurers from this section
shall not be construed to diminish the commissioner's existing
authority over those insurers under any other provision of this code.
(B) Domestic life insurers that are wholly owned by any insurer
other than a domestic life insurer or are part of an insurance
holding company system whose other insurer affiliates are not
domestic life insurers may elect to be subject to this section by
affirmatively stating that election in the statement otherwise
required to be filed by that system pursuant to Section 1215.4.
(b) Notwithstanding Section 1104.1, a domestic admitted insurer
may maintain its securities and moneys in a reciprocal state, subject
to the requirements of this section, through a custodian account
located in California in or with a qualified custodian, and that
qualified custodian may maintain those securities or moneys in a
qualified depository or qualified subcustodian, either or both of
which may be located in a reciprocal state. In addition, a domestic
insurer that has foreign investments or any other investments that
require delivery outside of the United States upon sale or maturity
that qualify under Section 1240, 1241, or 10506, or any other
provision of this code, may maintain those securities or moneys in or
with a qualified depository located in a jurisdiction outside the
United States. However, the aggregate amount of general account
investments so deposited shall not exceed the lesser of 5 percent of
the total admitted assets of the insurer or 25 percent of the excess
of admitted assets over the sum of paid up capital, liabilities, and
surplus required by Section 700.02. However, unless exempted by the
commissioner, not more than 50 percent of that amount of assets that
an insurer is authorized to invest pursuant to Section 1241 or 1241.1
may be maintained in any single country in a qualified depository as
defined in clause (ii) of paragraph (2) of subdivision (a) and as to
life companies not more than 12.5 percent of that amount of assets
that an insurer is authorized to invest pursuant to Section 1241 or
1241.1 may be maintained in any single country in a qualified
depository as defined in clause (ii) of paragraph (2) of subdivision
(a). The percentage or dollar value of admitted assets and paid up
capital and liabilities shall be determined by the insurer's last
preceding annual statement of conditions and affairs made as of the
preceding December 31 that has been filed with the commissioner
pursuant to law. No broker or agent, as defined in the Federal
Securities Exchange Act of 1934 (15 U.S.C. Sec. 78c et seq.), may
serve as a qualified custodian, qualified subcustodian, or qualified
depository under this section. However, no otherwise qualified
custodian or subcustodian shall be disqualified on account of its
activities as a broker or dealer, as so defined, when the activities
are incidental to its custodial or other business.
(c) No securities shall be deposited in or with a qualified
custodian, qualified depository, or qualified subcustodian except as
authorized by an agreement between the insurer and the qualified
custodian, if the agreement is satisfactory to and has been approved
by the commissioner. The agreement shall require that the securities
be held by the qualified custodian for the benefit of the insurer
and that the books and records of the qualified custodian shall so
designate. The agreement shall further require that beneficial title
to the securities remain in the insurer and shall require that the
qualified subcustodian and qualified depository be the agents of the
qualified custodian. The agreement shall also specifically require
that the qualified custodian shall exercise the standard of care of a
professional custodian engaged in the banking or trust company
industry and having professional expertise in financial and
securities processing transactions and custody would observe in these
affairs. This section does not affect the burden of proof under
applicable law with respect to the assertion of liability in any
claim, action, or dispute alleging any breach of, or failure to
observe, that standard of care.
(d) No agreement between the qualified custodian and the insurer
shall be approved by the commissioner unless the qualified custodian
agrees therein to comply with this section. Except when the
agreement is submitted in conjunction with an application for an
original certificate of authority or variable contract qualification,
a fee of five hundred dollars ($500) shall be paid to the
commissioner at the time of filing the agreement for approval.
However, no fee shall be required if the form of the agreement has
been previously submitted for approval and approved by the
commissioner as certified by the insurer and qualified custodian
submitting the agreement to the commissioner. The agreement shall be
deemed approved unless, within 60 days after receipt by the
commissioner of that agreement and any required filing fee, the
commissioner has disapproved the agreement in writing citing specific
reasons for disapproval.
(e) Notwithstanding the maintenance of securities with an
out-of-state qualified depository or qualified subcustodian pursuant
to agreement, if the commissioner has reasonable cause to believe
that the domestic insurer (1) is conducting its business and affairs
in a manner as to threaten to render it insolvent, or (2) is in a
hazardous condition or is conducting its business and affairs in a
manner that is hazardous to its policyholders, creditors, or the
public, or (3) has committed or is committing or has engaged or is
engaging in any act that would constitute grounds for rendering it
subject to conservation or liquidation proceedings, or if the
commissioner determines that irreparable loss and injury to the
property and business of the domestic insurer has occurred or may
occur unless the commissioner acts immediately, then the commissioner
may, without hearing, order the insurer and the qualified custodian
promptly to effect the transfer of the securities back to a qualified
custodian, qualified subcustodian, or qualified depository located
in this state from any qualified depository or qualified subcustodian
located outside of this state (the transfer order). Upon receipt of
the transfer order, the qualified custodian shall promptly effect
the return of the securities. Notwithstanding the pendency of any
hearing or action provided for in subdivision (f), the transfer order
shall be complied with by those persons subject to that order. Any
challenge to the validity of the transfer order shall be made in
accordance with subdivision (f). It is the responsibility of both
the insurer and the qualified custodian to oversee that compliance
with the transfer order is completed as expeditiously as possible.
Upon receipt of a transfer order, there shall be no trading of the
securities without specific instructions from the commissioner until
the securities are received in this state, except to the extent
trading transactions are in process on the day the transfer order is
received by the insurer and the failure to complete the trade may
result in loss to the insurer's account. Issuance of a transfer order
does not affect the qualified custodian's liabilities with regard to
the securities that are the subject of the order.
(f) At the same time the transfer order is served, the
commissioner shall issue and also serve upon the insurer a notice of
hearing to be held at a time and place fixed therein which shall not
be less than 20 nor more than 45 days after the service thereof.
Upon request of the insurer and agreement of the department, the
hearing may be held within a shorter time but in no event less than
10 days after the service of the notice of hearing. The transfer
order and notice of hearing may be served by certified mail, express
mail, messenger, telegram, or any other means calculated to give
prompt actual notice to (1) the California office of the insurer
designated in the agreement, its home office as shown on its most
recently filed annual or quarterly statement, or its California agent
for service of process; and (2) the California office of the
qualified custodian designated in the agreement. If, as a result of
the hearing, any of the statements as to conduct, conditions, or
grounds for the transfer order are found to be true, or if other
conditions or grounds are discovered or become known at the hearing
and are found to be true, the commissioner shall affirm the transfer
order and may make additional order or orders, pertaining to the
transfer order, as may be reasonably necessary.
The insurer subject to the transfer order is entitled to judicial
review in the state of the commissioner's order issued as a result of
the hearing.
Alternatively, at any time prior to the commencement of the
hearing on the transfer order, the insurer may waive the hearing and
have judicial review in this state of the transfer order by petition
for writ of mandate and declaratory relief without first exhausting
administrative remedies or procedures. In that event the insurer is
not entitled to any extraordinary remedies prior to trial.
No person other than the insurer has standing at the hearing by
the commissioner or for any judicial review of the transfer order.
SEC. 239. Section 1280.7 of the Insurance Code is amended to read:
1280.7. This chapter and the other provisions of this code,
except as set forth in this paragraph, shall not apply to or affect
unincorporated interindemnity or reciprocal or interinsurance
contracts between members of a cooperative corporation, organized and
operating under Part 2 (commencing with Section 12200) of Division 3
of Title 1 of the Corporations Code, whose members consist solely of
physicians and surgeons licensed in California, which contracts
indemnify solely in respect to medical malpractice claims against
those members, and which do not collect in advance of loss any moneys
other than contributions by each member to a collective reserve
trust fund or for necessary expenses of administration. However,
interindemnity, reciprocal, or interinsurance contracts with respect
to the following types of claims, in addition to medical malpractice
claims, may be entered into in conjunction with contracts with
respect to medical malpractice claims if the reserve trust fund is at
least twenty million dollars ($20,000,000):
(1) Bodily injury or property damage arising out of the conduct
and of the operations of the member's professional practice occurring
on the member's premises.
(2) Officers', directors', and administrators' liability, to the
extent that the member's professional practice is operated as a
professional corporation or group.
(3) Nonowned automobile coverage.
The provisions of Chapter 3 (commencing with Section 330) of Part
1 of Division 1 shall apply to unincorporated interindemnity or
reciprocal or interinsurance contracts. Those unincorporated
interindemnity or reciprocal or interinsurance contracts shall comply
with all of the following requirements:
(a) Each participating member shall enter into and, concurrently
therewith, receive an executed copy of a trust agreement, which shall
govern the collection and disposition of all funds of the
interindemnity arrangement.
The trust agreement shall, at a minimum, contain provision for all
the following matters:
(1) An initial trust corpus of not less than ten million dollars
($10,000,000), which corpus shall be a trust fund to secure
enforcement of the interindemnity arrangement. The average
contribution to the initial trust corpus shall be not less than
twenty thousand dollars ($20,000) per member participating in the
interindemnity arrangement. The average contribution to the trust
fund shall continue at all times to be not less than twenty thousand
dollars ($20,000) per participating member unless the interindemnity
arrangement is qualified to admit members under the terms of
subdivision (k). No such interindemnity arrangement shall become
operative until the requisite minimum reserve trust fund has been
established by contributions from not fewer than 500 participating
members.
(2) The reserve trust fund created by the trust agreement shall be
administered by a board of trustees of three or more members, all of
whom shall be physicians and surgeons licensed in California,
participating members in the interindemnity arrangement, and elected
biennially or more frequently by at least a majority of all members
participating in the interindemnity arrangement.
(3) The members of the board of trustees are fiduciaries and the
board shall be the custodian of all funds of the interindemnity
arrangement, and all those funds shall be deposited in the bank or
banks and savings and loan associations in California as the board
may designate. Each account shall require two or more signatories
for withdrawal of funds in excess of ten thousand dollars ($10,000).
The authorized signatories shall be appointed by the board and, as
to any withdrawal in excess of one hundred thousand dollars
($100,000), at least one of the two or more authorized signatories
shall be a physician and surgeon licensed in California and a
participating member in the interindemnity arrangement. Each
signatory on those accounts shall maintain, at all times while
empowered to draw on those funds, for the benefit of the
interindemnity arrangement, a bond against loss suffered through
embezzlement, mysterious disappearance, holdup or burglary, or other
loss issued by a bonding company licensed to do business in
California in a penal sum of not less than one hundred thousand
dollars ($100,000).
(4) All funds held in trust that are in excess of current
financial needs shall be invested and reinvested from time to time,
under the direction of the board of trustees, in eligible securities,
as defined in Section 16430 of the Government Code, in portfolios of
eligible securities, in exchange traded financial futures contracts
or exchange traded options contracts to hedge investment in those
eligible securities, or in certificates of deposits or time deposits
issued by banks and savings and loan associations in California duly
insured by instrumentalities of the United States government.
Pursuant to the authority contained in Section 1 of Article XV of
the California Constitution, the restrictions upon rates of interest
contained in Section 1 of Article XV of the California Constitution
shall not apply to any obligations of, loans made by, or forbearances
of, any trust established by a cooperative corporation providing
indemnity pursuant to this section.
(5) The income earned on the corpus of the trust fund shall be the
source for the payment of the claims, costs, judgments, settlements,
and costs of administration contemplated by the interindemnity
arrangement, and to the extent the income is insufficient for those
purposes, the board of trustees shall have the power and authority to
assess participating members for all amounts necessary to meet the
obligations of the interindemnity arrangement in accordance with the
terms thereof. If necessary in the best interests of the
interindemnity arrangement, the board of trustees may make
assessments to increase the corpus of the trust fund in accordance
with the terms of the interindemnity arrangement. Any assessment
levied against a member shall be the personal obligation of the
member. Any person who obtains a final judgment of recovery for
medical malpractice or other liability authorized by this section
against a member of the interindemnity arrangement shall have, in
addition to any other remedy, the right to assert directly all rights
to indemnification that the judgment debtor has under the
interindemnity arrangement. The final judgment shall be a lien on
the reserve trust fund to secure payment of the judgment, limited to
the extent of the judgment debtor's rights to indemnification.
Any change in the assessment agreement between the interindemnity
arrangement and its membership shall be submitted to the entire
membership for ratification. If the ratification process is to be
performed by a mail ballot, a ballot shall be sent to each member by
first-class mail, postage prepaid. Within 45 days after the posted
date on the mail ballot, each member who decides to vote on the
assessment change shall return his or her ballot to the
interindemnity arrangement for the tallying of the ballots. An
affirmative vote of 75 percent of those voting shall be required to
effectuate any change in the assessment agreement.
If a change in the assessment agreement is to be submitted to
members at a properly called meeting, the membership shall be
notified of the meeting and the proposed assessment change by
first-class mail, postage prepaid, posted at least 45 days prior to
the meeting. Seventy-five percent of those present in person or by
proxy at the meeting shall be required to effectuate any change in
the assessment agreement.
(6) Each participating member shall be covered by the
interindemnity arrangement for not less than one million dollars
($1,000,000) for each occurrence of professional negligence or other
liability authorized by this section, with the terms and conditions
of the coverage to be specified in the trust agreement, except that
the interindemnity arrangement may provide participating members with
an aggregate limit for all payments on behalf of the member and may
provide participating members with less than one million dollars
($1,000,000) of coverage for each occurrence of professional
negligence or other liability authorized by this section if the
interindemnity arrangement obtains for the benefit of the members
reinsurance of excess limits coverage in an amount that when added to
the coverage provided by the interindemnity arrangement would equal
not less than one million dollars ($1,000,000) for each occurrence of
professional negligence or other liability authorized by this
section.
Any change in the coverage provided by the trust agreement between
the interindemnity arrangement and its membership shall be submitted
to the entire membership for ratification. If the ratification
process is to be performed by a mail ballot, a ballot shall be sent
to each member by first-class mail, postage prepaid. Within 45 days
after the posted date on the mail ballot, each member who decides to
vote on the coverage change shall return his or her ballot to the
interindemnity arrangement for the tallying of the ballot. An
affirmative vote of 75 percent of those voting shall be required to
effectuate any change in the coverage provided by the trust
agreement, except that at least 50 percent of the entire membership
must agree to any change.
If any change is to be submitted to members at a properly called
meeting, the membership shall be notified of the meeting and the
proposed coverage change by first-class mail, postage prepaid, posted
at least 45 days prior to the meeting. An affirmative vote of 75
percent of the membership present at the meeting, in person or by
proxy, shall be required to effectuate any change, except that at
least 50 percent of the entire membership must agree to any change.
(7) Withdrawal of all, or any portion of, the corpus of the
reserve trust fund shall be upon the written authorization signed by
at least two-thirds of the members of the board of trustees.
(8) The board of trustees shall cause both of the following to be
furnished to each member participating in the interindemnity
arrangement, and to be filed with the Commissioner of Corporations:
(A) Within 90 days after the end of each fiscal year, a statement
of the assets and liabilities of the interindemnity arrangement as of
the end of that year, a statement of the revenue and expenditures of
the interindemnity arrangement, and a statement of the changes in
corpus of the reserve trust for that year, in each case accompanied
by a certificate signed by a firm of independent certified public
accountants selected by the board of trustees indicating that the
firm has conducted an audit of those statements in accordance with
generally accepted auditing standards and indicating the results of
the audit.
(B) Within 45 days after the end of each of the first three
quarterly periods of each fiscal year, a statement of the assets and
liabilities of the interindemnity arrangement as of the end of
the quarterly period, a
statement of the revenue and expenditures of the interindemnity
arrangement, and a statement of the changes in corpus of the reserve
trust for the period, in each case accompanied by a certificate
signed by a majority of the members of the board of trustees to the
effect that the statements were prepared from the official books and
records of the interindemnity arrangement.
(C) In addition to the statements required to be filed pursuant to
this paragraph, the board of trustees shall annually file with the
Commissioner of Corporations an authorization for disclosure to the
commissioner of all financial records pertaining to the
interindemnity arrangement. For the purpose of this subparagraph,
the authorization for disclosure shall also include the financial
records of any association, partnership, or corporation that has
management or control of the funds or the operation of the
interindemnity arrangement.
(9) The trust agreement shall also provide for all the following:
(A) In the event a participating member who is in full compliance
with the trust agreement, including the payment of all outstanding
dues and assessments, dies, the initial contribution made by the
decedent shall be returned to the member's estate or designated
beneficiary; the indemnity coverage shall continue for the benefit of
the decedent's estate in respect of occurrences during the time the
decedent was a participating member; and neither the person receiving
the repayment of the initial contribution nor the decedent's estate
shall be responsible for any assessments levied following the death
of the member.
(B) A participating member who is then in full compliance with the
trust agreement and who has reached the age of 65 and who has
retired completely from the practice of medicine may elect to retire
from the interindemnity arrangement, in which case the member shall
not be responsible for assessments levied following the date notice
of retirement is given to the trust. Following that retirement, the
indemnity coverage shall continue for the benefit of the member in
respect of occurrences prior to the time the member retired from the
interindemnity arrangement. That retired member's initial
contribution shall be repaid 10 years from the date the notice of
retirement is received by the trust, or an earlier date as specified
in the trust agreement. The board of trustees may reduce the age for
retirement to not less than 55 years subject to all other
requirements in this paragraph and any additional requirements deemed
necessary by the board.
(C) During any period in which a participating member, who is then
in full compliance with the trust agreement, has, in the judgment of
the board of trustees, become unable to perform any and every duty
of his or her regular professional occupation, the participating
member may request disability status in accordance with the terms of
the interindemnity arrangement. During any period of disability
status, the member shall not be responsible for assessments levied
during the period and, if so provided in the interindemnity
arrangement, all indemnity coverage, both as to defense and payment
of claims, shall terminate as to occurrences arising out of the
actions of the participating member during the period of disability
status.
(D) In the event a participating member fails to pay any
assessment when due, the board of trustees may terminate that person'
s membership status if the failure to pay is not cured within 30 days
from the date the assessment was due. Upon that termination the
former participating member shall not be entitled to the return of
all or any part of his or her initial contribution, and the indemnity
coverage shall thereupon terminate as to all claims then pending
against that person and in respect to all occurrences prior to the
date of that termination of membership. However, in the event the
interindemnity arrangement is then providing legal defense services
to that person, the interindemnity arrangement shall continue to
provide those services for a period of 10 days following that
termination.
(E) In the event a participating member fails to comply with any
provision of the trust agreement (other than a failure to pay
assessments when due), the board of trustees may terminate that
person's membership status if the failure to comply is not cured
within 60 days from the date the person is notified of the failure,
provided that before that membership status may be terminated the
person shall be given the right to call for a hearing before the
board of trustees (to be held before the expiration of the 60-day
period), at which hearing the person shall be given the opportunity
to demonstrate to the board of trustees that no failure to comply has
occurred or, if it has occurred, that it has been cured. Upon that
termination, the former participating member shall not be entitled to
the return of all or any part of his or her initial contribution,
and the indemnity coverage shall thereupon terminate as to all claims
then pending against the person and in respect to all occurrences
prior to the date of the termination of membership. However, in the
event the interindemnity arrangement is then providing legal defense
services to that person, the interindemnity arrangement shall
continue to provide those services for a period of 10 days following
the termination.
(F) A participating member who is then in full compliance with the
trust agreement may elect voluntarily to terminate his or her
membership in the interindemnity arrangement. Upon that voluntary
termination, that person may further elect to cease being responsible
for future assessments, or to continue to pay those assessments
until the time as the person's initial contribution is repaid. In
the event the person elects to cease being responsible for future
assessments, the indemnity coverage shall thereupon terminate and the
person shall either be responsible for his or her own exposure for
acts committed while a participating member in the interindemnity
arrangement, or he or she may request the interindemnity arrangement
to purchase or provide, at the cost of the person, coverage for that
exposure. The initial contribution of the person shall be repaid on
the 10th anniversary of the date the contribution was made. In the
event the person elects to continue to be responsible for
assessments, the indemnity coverage shall continue in respect of
occurrences prior to the date of the voluntary termination, and the
initial contribution of the person shall be repaid at the time as the
board of trustees is satisfied that (i) there are no claims pending
against the person in respect of occurrences during the time the
person was a participating member, and (ii) the statute of
limitations has run on all claims that might be asserted against that
person in respect of occurrences during that time. In no event
shall that repayment be made earlier than the 10th anniversary of the
date the contribution was made.
Any person whose membership in an interindemnity arrangement is
involuntarily terminated for failure to pay assessments or who
voluntarily terminates that membership and elects to be responsible
for his or her own exposure for acts committed while a participating
member, shall not be eligible to become a member of any other
interindemnity arrangement for a period of five years after the
termination unless, on the effective date of the act which amended
this section during the 1985-86 Regular Session, the person had on
file with the Department of Corporations a copy of a subscription
agreement signifying the person's agreement to transfer membership or
had paid a minimum of ten thousand dollars ($10,000) to another
interindemnity arrangement that was granted a permit to organize
prior to January 1, 1985.
(G) The board of trustees shall have the right to terminate the
membership of a participating member if the board of trustees
determines that the termination is in the best interests of the
interindemnity arrangement even though that person has complied with
all of the provisions of the trust agreement. A termination may be
effected only if at least two-thirds of the members of the board of
trustees indicate in writing their decision to terminate. If the
board of trustees proposes to terminate a member, the member shall
have the right to call a special meeting of all participating members
in accordance with the rules established by the board of trustees
for the purpose of voting on whether or not the member shall be
terminated. The member shall not be terminated if at least
two-thirds of the participating members present, in person or by
proxy, indicate that the member should not be terminated. In the
event a member is terminated, the person shall elect either: (i) to
request the return of his or her initial contribution, in which case
the contribution shall be repaid and the indemnity coverage shall
thereupon terminate as to all claims then pending against the person
and in respect to all occurrences prior to the date of the
termination of membership. However, in the event the interindemnity
arrangement is then providing legal defense services to the person,
the interindemnity arrangement shall continue to provide those
services for a period of 30 days to enable the person to assume his
or her own defense; or (ii) to release all rights to the return of
the initial contribution, in which case the indemnity coverage shall
continue for the benefit of the member in respect of occurrences
during the time the person was a participating member and the person
shall have no responsibility for assessments levied following that
termination. The interindemnity arrangement may provide that if a
member is terminated and fails to make the election set forth herein
within 45 days of the date of notification of termination of
membership, the participating member shall be deemed to have elected
to release all rights to a return of his or her initial contribution,
in which case indemnity coverage shall apply for the benefit of the
member with respect to occurrences occurring prior to the
termination.
(10) Each member participating in the interindemnity arrangement
shall have the right of access to, and the inspection of, the books
and records of the interindemnity arrangement, which rights shall be
similar to the corporate shareholders pursuant to Section 3003 of the
Corporations Code, or, commencing January 1, 1977, Sections 1600 to
1605, inclusive, of the Corporations Code.
(11) There shall be a meeting of all members participating in the
interindemnity arrangement, at least annually, after not less than 10
days' written notice has been given, at a location reasonably
convenient to the participating members and on a date that is within
a reasonable period of time following the distribution of the annual
financial statements.
(12) Notwithstanding Sections 12453 and 12703 of the Corporations
Code, on any matter to be voted upon by the membership at either a
regular or special meeting, a member shall have the right to vote in
person or by written proxy filed with the corporate secretary prior
to the meeting. No proxy shall be made irrevocable, nor be valid
beyond the earliest of the following dates:
(A) The date of expiration set forth in the proxy.
(B) The date of termination of membership.
(C) Eleven months from the date of execution of the proxy.
(D) Such time as may be specified in the bylaws, not to exceed 11
months.
(13) The interindemnity arrangement, and the reserve trust fund
incident thereto, shall be subject to termination at any time by the
vote or written consent of not less than three-fourths of the
participating members.
(b) The board of trustees shall cause to be recorded with the
office of the county recorder of the county of the principal place of
business of the interindemnity arrangement within 90 days following
the end of each fiscal year, a written statement, executed by a
majority of the board of trustees under penalty of perjury, reciting
that each member participating in the interindemnity arrangement was
mailed a copy of the annual financial statement and quarterly audit
certificates by first-class mail, postage prepaid, required pursuant
to paragraph (8) of subdivision (a).
(c) Each person solicited to become a participating member in an
interindemnity arrangement shall receive in writing, at least 48
hours prior to the execution by the prospective participating member
of the trust agreement, and at least 48 hours prior to the payment by
the prospective participating member of any consideration in
connection with the interindemnity arrangements, the following
information:
(1) A copy of the articles of incorporation and bylaws of the
cooperative corporation and a copy of the form of trust agreement to
be executed by the prospective participating member.
(2) A disclosure statement regarding the interindemnity
arrangement. The disclosure statement shall contain on the first or
cover page a legend in boldface type reading substantially as
follows:
"THE INTERINDEMNITY ARRANGEMENT CONTEMPLATED HEREIN PROVIDES THAT
PARTICIPATING MEMBERS HAVE UNLIMITED PERSONAL LIABILITY FOR
ASSESSMENTS THAT MAY BE LEVIED TO PAY FOR THE PROFESSIONAL NEGLIGENCE
OR OTHER LIABILITY AUTHORIZED BY THIS SECTION. NO ASSURANCES CAN BE
GIVEN REGARDING THE AMOUNT OR FREQUENCY OF ASSESSMENTS WHICH MAY BE
LEVIED, OR THAT ALL PARTICIPATING MEMBERS WILL MAKE TIMELY PAYMENT OF
THEIR ASSESSMENTS TO COVER THE PROFESSIONAL NEGLIGENCE OR OTHER
LIABILITY AUTHORIZED BY THIS SECTION."
(3) The disclosure statement shall further contain all of the
following information:
(A) The amount, nature, and terms and conditions of the
professional negligence or other liability relating to a member's
professional practice coverage available under the interindemnity
arrangement.
(B) The amount of the initial contribution required of each
participating member and a statement of the minimum number of members
and aggregate contributions required for the interindemnity
arrangement to commence.
(C) The names, addresses, and professional experience of each
member of the board of trustees.
(D) The requirements for admission as a participating member.
(E) A statement of the services to be provided under the
interindemnity arrangement to each participating member.
(F) A statement regarding the obligation of each member to pay
assessments and the consequences for failure to do so.
(G) A statement of the rights and obligations of a participating
member in the event the member dies, retires, becomes disabled, or
terminates participation for any reason, or the interindemnity
arrangement terminates for any reason.
(H) A statement regarding the services to be provided, indicating
whether these services will be delegated to others pursuant to a
contractual arrangement. For those services delegated to others
pursuant to a contractual arrangement, a statement fully disclosing
and itemizing all consideration received directly or indirectly under
the arrangement, and indicating what the consideration is for, and
how, when, and to whom the consideration will be paid.
(I) A statement of the voting rights of the members and the
circumstances under which participation of a member may be terminated
and under which the interindemnity arrangement may be terminated.
(J) If any statement of estimated or projected financial
information for the interindemnity arrangement is used, a statement
of the estimation or projection and a summary of the data and
assumptions upon which it is based.
(4) A list with the names and addresses of current participating
members of the interindemnity arrangement.
(d) No officer, director, trustee, employee, or member of the
interindemnity arrangement or the cooperative corporation shall
receive, or be entitled to receive, any payment, bonus, salary,
income, compensation, or other benefit whatsoever, either from the
reserve trust fund or the income therefrom or from any other funds of
the interindemnity arrangement or the members thereof based on the
number of participating members, or the amount of the reserve trust
fund or other funds of the interindemnity arrangement.
(e) A peer review committee or committees shall be established by
the trust agreement to review the qualifications of any physician and
surgeon to participate or continue to participate in the
interindemnity arrangement, and to review the quality of medical
services rendered by any participating member, as well as the
validity of medical malpractice claims made against participating
members. Any physician and surgeon, prior to becoming a
participating member of the interindemnity arrangement, shall be
reviewed and approved by a majority of the members of the peer review
committee. No peer review committee, or any of its members, shall
be liable for any action taken by the committee in reviewing the
qualifications of a physician and surgeon to participate or continue
to participate, or the quality of medical services rendered, or the
validity of a medical malpractice claim, unless it is alleged and
proved that the action was taken with actual malice.
(f) The following are hereby defined as unfair methods of
competition and deceptive acts or practices with respect to
cooperative corporations or interindemnity arrangements provided for
in this section:
(1) Making any false or misleading statement as to, or issuing,
circulating, or causing to be made, issued, or circulated, any
estimate, illustration, circular, or statement misrepresenting the
terms of any interindemnity arrangement or the benefits or advantages
promised thereby, or making any misleading representation or any
misrepresentation as to the financial condition of the interindemnity
arrangement, or making any misrepresentation to any participating
member for the purpose of inducing or tending to induce the member to
lapse, forfeit, or surrender his or her rights to indemnification
under the interindemnity arrangement. It shall be a false or
misleading statement to state or represent that a cooperative
corporation or interindemnity arrangement is or constitutes
"insurance" or an "insurance company" or an "insurance policy."
(2) Making or disseminating or causing to be made or disseminated
before the public in this state, in any newspaper or other
publication, or any advertising device, or by public outcry or
proclamation, or in any other manner or means whatsoever, any
statement containing any assertion, representation, or statement with
respect to those cooperative corporations or interindemnity
arrangements, or with respect to any person in the conduct of those
cooperative corporations or interindemnity arrangements, which is
untrue, deceptive, or misleading, and which is known, or which by the
exercise of reasonable care should be known, to be untrue,
deceptive, or misleading. It shall be a false or misleading
statement to state or represent that a cooperative corporation or
interindemnity arrangement is or constitutes "insurance" or an
"insurance company" or an "insurance policy."
(3) Entering into any agreement to commit, or by any concerted
action committing, any act of boycott, coercion, or intimidation
resulting in or tending to result in an unreasonable restraint of, or
monopoly in, those cooperative corporations or interindemnity
arrangements.
(4) Filing with any supervisory or other public official, or
making, publishing, disseminating, circulating, or delivering to any
person, or placing before the public, or causing directly or
indirectly, to be made, published, disseminated, circulated, or
delivered to any person, or placed before the public any false
statement of financial condition of a cooperative corporation or
interindemnity arrangement with intent to deceive.
(5) Making any false entry in any book, report, or statement of a
cooperative corporation or interindemnity arrangement with intent to
deceive any agent or examiner lawfully appointed to examine into its
condition or into any of its affairs, or any public official to whom
a cooperative corporation or interindemnity arrangement is required
by law to report, or who has authority by law to examine into its
condition or into any of its affairs, or, with like intent, willfully
omitting to make a true entry of any material fact pertaining to a
cooperative corporation or interindemnity arrangement in any book,
report, or statement of a cooperative corporation or interindemnity
arrangement.
(6) Making or disseminating, or causing to be made or
disseminated, before the public in this state, in any newspaper or
other publication, or any other advertising device, or by public
outcry or proclamation, or in any other manner or means whatever,
whether directly or by implication, any statement that a cooperative
corporation or interindemnity arrangement is a member of the
California Insurance Guarantee Association, or insured against
insolvency as defined in Section 119.5. This paragraph shall not be
interpreted to prohibit any activity of the California Insurance
Guarantee Association or of the commissioner authorized, directly or
by implication, by Article 14.2 (commencing with Section 1063) of
Chapter 1.
(7) Knowingly committing or performing with a frequency as to
indicate a general business practice any of the following unfair
claims settlement practices:
(A) Misrepresenting to claimants pertinent facts or provisions
relating to any coverage at issue.
(B) Failing to acknowledge and act promptly upon communications
with respect to claims arising under those interindemnity
arrangements.
(C) Failing to adopt and implement reasonable standards for the
prompt investigation and processing of claims arising under those
interindemnity arrangements.
(D) Failing to affirm or deny coverage of claims within a
reasonable time after proof of claim requirements have been completed
and submitted by the participating member.
(E) Not attempting in good faith to effectuate prompt, fair, and
equitable settlements of claims in which liability has become
reasonably clear.
(F) Compelling participating members to institute litigation to
recover amounts due under an interindemnity arrangement by offering
substantially less than the amounts ultimately recovered in actions
brought by those participating members when those participating
members have made claims under those interindemnity arrangements for
amounts reasonably similar to the amounts ultimately recovered.
(G) Attempting to settle a claim by a participating member for
less than the amount to which a reasonable person would have believed
he or she was entitled by reference to written or printed
advertising material accompanying or made part of an application for
membership in an interindemnity arrangement.
(H) Attempting to settle claims on the basis of an interindemnity
arrangement that was altered without notice to the participating
member.
(I) Failing, after payment of a claim, to inform participating
members, upon request by them, of the coverage under which payment
has been made.
(J) Making known to claimants a practice of the cooperative
corporation or interindemnity arrangement of appealing from
arbitration awards in favor of claimants for the purpose of
compelling them to accept settlements or compromises less than the
amount awarded in arbitration.
(K) Delaying the investigation or payment of claims by requiring a
claimant, or his or her physician, to submit a preliminary claim
report, and then requiring the subsequent submission of formal proof
of loss forms, both of which submissions contain substantially the
same information.
(L) Failing to settle claims promptly, where liability has become
apparent, under one portion of an interindemnity arrangement in order
to influence settlements under other portions of the interindemnity
arrangement.
(M) Failing to provide promptly a reasonable explanation of the
basis relied on in the interindemnity arrangement, in relation to the
facts of applicable law, for the denial of a claim or for the offer
of a compromise settlement.
(N) Directly advising a claimant not to obtain the services of an
attorney.
(O) Misleading a claimant as to the applicable statute of
limitations.
(g) Notwithstanding any contrary provisions of Part 2 (commencing
with Section 12200) of Division 3 of Title 1 of the Corporations
Code, it shall not be necessary to hold a meeting of members of the
cooperative corporation for the purpose of electing directors if the
bylaws provide the election may be held by first-class mail
balloting. First-class mail balloting may also be used in
conjunction with a meeting at which directors are to be elected and
all mail ballots shall count toward establishing a quorum for the
meeting for the limited purpose of the issues set forth in the mail
ballot. Directors shall be elected as follows:
(1) The candidates receiving the highest number of votes, up to
the number of directors to be elected, by a specified date at least
45 days but not later than 60 days after the ballots are first
mailed, postage prepaid, to the members (or the date of a meeting of
members held in conjunction therewith) shall be elected.
(2) In the event that no candidate receives a majority of the
votes cast for a vacant office, a runoff election shall be held
between the two candidates receiving the highest number of votes
cast. The runoff election shall be held at least 45 days but not
more than 60 days after the ballots for the election are mailed,
postage prepaid. In the event that there is more than one office for
which no candidate receives a majority of the votes cast, the
candidates for the runoff shall be twice the number of vacant
offices, and shall be those persons who received the highest number
of votes therefor.
Those first-class mail ballots shall be kept on file for a period
of three months after all vacant board positions have been filled,
and shall be subject to inspection at any reasonable time by any
members of the cooperative corporation.
(h) No officer, director, trustee, or member of the interindemnity
arrangement or the cooperative corporation, or any entity in which
that person has a material financial interest, shall enter into or
renew any transaction or contract with the trust unless the material
facts as to the transaction or contract and as to the interest of the
person are fully disclosed to the participating members, and the
transaction or contract is approved by an affirmative vote of at
least 75 percent of the membership present at a meeting, in person or
by proxy. If any transaction or contract is to be submitted
to members at a properly called
meeting, the membership shall be notified of the meeting and of the
transaction or contract by first-class mail, postage prepaid, at
least 45 days prior to the meeting.
(i) Services provided to the trust pursuant to a delegated
contractual arrangement shall be embodied in a written contract.
Each written contract shall provide for reasonable consideration to
the parties. In addition, each written contract shall be disclosed
annually to participating members in a disclosure report containing
the information described in subparagraph (H) of paragraph (3) of
subdivision (c). The disclosure report shall be sent to
participating members by first-class mail, postage prepaid, and shall
be mailed separately from any statements, records, or other
documents. The disclosure requirements of this subdivision shall
apply to all existing and future written contracts.
(j) Upon request of the Commissioner of Corporations, an
interindemnity arrangement shall immediately forward to the
commissioner a current list of participating members, including the
names, addresses, and telephone numbers of those members.
(k) Notwithstanding any provision to the contrary, whenever the
membership of a cooperative organization, organized pursuant to Part
2 (commencing with Section 12200) of Division 3 of Title 1 of the
Corporations Code and consisting solely of physicians and surgeons
licensed in this state amounts to 2,000 or more members and the trust
fund is at least forty million dollars ($40,000,000), which is
available to the public for malpractice claims or other claims
authorized by this section, the cooperative is authorized to admit
members without a contribution to that trust fund if assessments are
charged to each of those members within the first 50 months in an
amount equal to the amount of the contribution to the reserve fund
that would otherwise be required.
SEC. 240. Section 1776 of the Insurance Code is amended to read:
1776. Any surplus line broker who willfully fails or refuses to
report to the commissioner any insurance on subject matter located
within this state placed under his or her name with nonadmitted
insurers, or who, by willful omission from the records required to be
maintained by him or her for that purpose, attempts to evade the
payment of taxes on any such insurance, is, in addition to being
required to pay the tax, together with a penalty equal in amount to
the tax, guilty of a misdemeanor.
It is a misdemeanor for any surplus line broker or special lines'
surplus line broker to accept or pay directly or indirectly any
consideration or remuneration for or in connection with the placing
of insurance that, if done by a person within this state, is governed
by the provisions of this chapter, when the placing was not done by
a person licensed therefor pursuant to this chapter.
It is a misdemeanor for any agent or broker to solicit, negotiate,
or effect any insurance governed by the provisions of this chapter
in nonadmitted insurers, except by and through a surplus line broker
or special lines' surplus line broker licensed pursuant to this
chapter. Except in the case of insurance specified in subdivision
(b) of Section 1760.5, it is a misdemeanor for any surplus line
broker or special lines' surplus line broker to accept, place, pay,
or permit the payment of commission or other remuneration on
insurance placed by him or her under authority of his or her license
to any person other than one holding a license to act as an insurance
agent, insurance broker, surplus line broker, or special lines'
surplus line broker, except that the business may be accepted by such
surplus line broker or special lines' surplus line broker directly
from an insured or other person who would likewise be entitled to
place the business directly with an admitted insurer without the
solicitation, negotiation, or effecting thereof by an insurance agent
or broker.
The commissioner may deny, suspend, or revoke any license issued
pursuant to this code if he or she finds after notice and hearing in
accordance with the procedure provided in Article 13 (commencing with
Section 1737) of Chapter 5 that the licensee has violated any
provisions of this section.
The permission granted in this chapter to place any insurance in a
nonadmitted insurer shall not be deemed or construed to authorize
any insurer to do business in this state.
Placement activities of a licensed surplus line broker in
accordance with this chapter, including, but not limited to, policy
issuance, shall not be deemed or construed to be business done by the
insurer in this state.
SEC. 241. Section 1861.025 of the Insurance Code is amended to
read:
1861.025. A person is qualified to purchase a Good Driver
Discount policy if he or she meets all of the following criteria:
(a) He or she has been licensed to drive a motor vehicle for the
previous three years.
(b) During the previous three years, he or she has not done any of
the following:
(1) Had more than one violation point count determined as provided
by subdivision (a), (b), (c), (d), (e), (g), or (h) of Section 12810
of the Vehicle Code, but subject to the following modifications:
For the purposes of this section, the driver of a motor vehicle
involved in an accident for which he or she was principally at fault
that resulted only in damage to property shall receive one violation
point count, in addition to any other violation points that may be
imposed for this accident.
If, under Section 488 or 488.5, an insurer is prohibited from
increasing the premium on a policy on account of a violation, that
violation shall not be included in determining the point count of the
person.
If a violation is required to be reported under Section 1816 of
the Vehicle Code, or under Section 784 of the Welfare and
Institutions Code, or any other provision requiring the reporting of
a violation by a minor, the violation shall be included for the
purposes of this section in determining the point count in the same
manner as is applicable to adult violations.
(2) Had more than one dismissal pursuant to Section 1803.5 of the
Vehicle Code that was not made confidential pursuant to Section
1808.7 of the Vehicle Code, in the 36-month period for violations
that would have resulted in the imposition of more than one violation
point count under paragraph (1) if the complaint had not been
dismissed.
(3) Was the driver of a motor vehicle involved in an accident that
resulted in bodily injury or in the death of any person and was
principally at fault. The commissioner shall adopt regulations
setting guidelines to be used by insurers for the determination of
fault for the purposes of this paragraph and paragraph (1).
(c) During the previous seven years, he or she has not been
convicted of a violation of Section 23140, 23152, or 23153 of the
Vehicle Code, a felony violation of Section 23550 or 23566, or former
Section 23175 or, as those sections read on January 1, 1999, of the
Vehicle Code, or a violation of Section 191.5 or paragraph (3) of
subdivision (c) of Section 192 of the Penal Code.
(d) Any person who claims that he or she meets the criteria of
subdivisions (a), (b), and (c) based entirely or partially on a
driver's license and driving experience acquired anywhere other than
in the United States or Canada is rebuttably presumed to be qualified
to purchase a Good Driver Discount policy if he or she has been
licensed to drive in the United States or Canada for at least the
previous 18 months and meets the criteria of subdivisions (a), (b),
and (c) for that period.
SEC. 242. Section 10089.45 of the Insurance Code is amended and
renumbered to read:
12975.9. (a) The Seismic Safety Account is hereby created as a
special account within the Insurance Fund. Money in the account may
be appropriated by the Legislature for the purposes of this section
to fund the department and the Seismic Safety Commission.
Assessments imposed on insurers as a prorated percentage of premiums
earned on property exposures for both commercial and residential
insurance policies relative to the aggregate premiums earned on those
exposures by all insurers shall be deposited in the account. The
premiums earned for property exposures shall be as stated on lines 4
and 5.1 of the annual statement filed by each insurer pursuant to
Section 900. The assessments shall be set annually based on earned
premiums reported for the next preceding year by the department and
calculated so that the funds in the account shall be sufficient to
fund appropriations for support of the Seismic Safety Commission, for
the actual collection and administrative costs of the department,
and for the maintenance of an adequate reserve. The department shall
submit the proposed assessments to the Seismic Safety Commission for
its review at a regularly scheduled meeting of the commission.
(b) No assessment shall be levied on insurers with less than one
hundred thousand dollars ($100,000) of annual direct premiums earned
on property exposures for both commercial and residential insurance
policies. The department may adjust this amount as necessary to
minimize costs by excluding assessment amounts that are too small to
justify the cost of assessment and collection or if assessment or
collection is impractical.
(c) An insurer, in its discretion, may recover this assessment in
an equitable fashion from the insured. The insurer, upon receipt of
an invoice, shall transmit payment to the department for deposit in
the Seismic Safety Account. Any deficiency or excess in the amount
collected in relation to the appropriation authority for the
commission and the department shall be accounted for in the
subsequent annual fee calculation. Any balance remaining in the
Seismic Safety Account at the end of the fiscal year shall be
retained in the account and carried forward to the next fiscal year.
(d) Funds in the Seismic Safety Account shall be distributed, upon
appropriation, to the Seismic Safety Commission for the support of
the commission and to the department for the actual administrative
costs incurred in collecting the assessments.
(e) The department shall report annually to the Legislature, the
Seismic Safety Commission, and the Department of Finance on the
assessment calculation methodology employed.
(f) This section shall remain in effect until July 1, 2007, and as
of that date is repealed, unless a later enacted statute, that is
enacted before July 1, 2007, deletes or extends that date.
SEC. 243. Section 10113.2 of the Insurance Code is amended to
read:
10113.2. (a) This section applies to any person entering into or
soliciting viatical settlements pursuant to Section 10113.1.
(b) (1) No person may enter into or solicit viatical settlements
pursuant to Section 10113.1 unless that person has been licensed by
the commissioner under this section. The person shall file an
application for a license in the form prescribed by the commissioner,
and the application shall be accompanied by a fee of two thousand
eight hundred thirty-three dollars ($2,833). The applicant shall
provide any information the commissioner may require. The
commissioner may issue a license, or deny the application if, in his
or her discretion, it is determined that it is contrary to the
interests of the public to issue a license to the applicant. The
reasons for a denial shall be set forth in writing.
(2) Whenever it appears to the commissioner that it is contrary to
the interests of the public for a person licensed pursuant to this
section to continue to transact viatical settlements business, he or
she shall issue a notice to the licensee stating the reasons
therefor. If, after a hearing, the commissioner concludes that it is
contrary to the interests of the public for the licensee to continue
to transact viatical settlements business, he or she may revoke the
person's license, or issue an order suspending the license for a
period as determined by the commissioner. Any hearing conducted
pursuant to this paragraph shall be in accordance with Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code, except that the hearing may be conducted by
administrative law judges chosen pursuant to Section 11502 or
appointed by the commissioner, and the commissioner shall have the
powers granted therein.
(3) Each licensee shall owe and pay in advance to the commissioner
an annual renewal fee of one hundred seventy-seven dollars ($177).
This fee shall be for annual periods commencing on July 1 of each
year and ending on June 30 of each year, and shall be due on each
March 1 and shall be delinquent on and after each April 1.
(4) Any licensee that intends to discontinue transacting viatical
settlements in this state shall so notify the commissioner, and shall
surrender its license.
(c) A viatical settlements licensee shall file with the department
a copy of all viatical settlement forms used in this state. No
licensee may use any viatical settlement form in this state unless it
has been approved by the commissioner. Any viatical settlement form
filed with the commissioner shall be deemed approved if it has not
been disapproved within 60 days of filing. The commissioner shall
disapprove a viatical settlement form if, in his or her discretion,
the form, or provisions contained therein, are contrary to the
interests of the public, or otherwise misleading or unfair to the
consumer. The commissioner may rescind an approval for any reason or
on any basis that would have justified initial disapproval. In the
case of disapproval or rescission of approval, the licensee may,
within 15 days of notice of the disapproval or rescission, request a
hearing before the commissioner or his or her designee, and the
hearing shall be held within 30 days of the request.
(d) Viatical settlements licensees shall be required to disclose
or advise any applicant for a viatical settlement, at the time of
solicitation for the viatical settlement, of all of the following:
(1) Possible alternatives to viatical settlements for persons with
catastrophic or life-threatening illness, including, but not limited
to, accelerated benefits options that may be offered by the life
insurer.
(2) Tax consequences that may result from entering into a viatical
settlement.
(3) Consequences for interruption of public assistance as provided
by information provided by the State Department of Health Services
and the State Department of Social Services under Section 11022 of
the Welfare and Institutions Code.
(e) All medical information solicited or obtained by any person
soliciting or entering into a viatical settlement is subject to
Article 6.6 (commencing with Section 791) of Chapter 1 of Part 2 of
Division 1, concerning confidentiality of medical information.
(f) The commissioner may adopt rules and regulations reasonably
necessary to govern viatical settlements and transactions and shall
adopt regulations to address those conflicts of interest that may
arise, including referrals by viatical settlement brokers to viatical
settlement providers who have patterns of unreasonable payments to
viators. This authority includes, but is not limited to, regulation
of discount rates used to determine the amount paid in exchange for
assignment, transfer, sale, devise, or bequest of a death benefit
under a life insurance policy, and regulations restricting the period
of time within which a life or disability agent is prohibited from
charging or accepting a fee or commission for viaticating a policy
previously sold by that agent. In adopting those regulations, the
commissioner shall consider the period of time applicable to that
prohibition. The prohibition does not apply to group policies or
certificates.
(g) The commissioner may, whenever he or she deems it reasonably
necessary to protect the interests of the public, examine the
business and affairs of any licensee or applicant for a license. The
commissioner shall have the authority to order any licensee or
applicant to produce any records, books, files, or other information
as is reasonably necessary to ascertain whether or not the licensee
or applicant is acting or has acted in violation of the law or
otherwise contrary to the interests of the public. The expenses
incurred in conducting any examination shall be paid by the licensee
or applicant.
(h) The commissioner may investigate the conduct of any licensee,
its officers, employees, agents, or any other person involved in the
business of the licensee, whenever the commissioner has reason to
believe that the licensee may have acted, or may be acting, in
violation of the law, or otherwise contrary to the interests of the
public. The commissioner may initiate an investigation on his or her
own, or upon a complaint filed by any other person.
(i) The commissioner may issue orders to licensees whenever he or
she determines that it is reasonably necessary to ensure or obtain
compliance with this section, or Section 10113.1. This authority
includes, but is not limited to, orders directing a licensee to cease
and desist in any practice that is in violation of this section, or
Section 10113.1, or otherwise contrary to the interests of the
public. Any licensee to which an order pursuant to this subdivision
is issued may, within 15 days of receipt of that order, request a
hearing at which the licensee may challenge the order.
(j) The commissioner may, after notice and a hearing at which it
is determined that a licensee has violated this section or Section
10113.1 or any order issued pursuant to this section, order the
licensee to pay a monetary penalty of up to ten thousand dollars
($10,000), which may be recovered in a civil action. Any hearing
conducted pursuant to this subdivision shall be in accordance with
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code, except that the hearing may be
conducted by administrative law judges chosen pursuant to Section
11502 or appointed by the commissioner, and the commissioner shall
have the powers granted therein.
(k) Each licensee shall file with the commissioner on or before
March 1 of each year an annual statement in the form prescribed by
the commissioner. The information that the commissioner may require
in the annual statement shall include, but not be limited to, the
data required to satisfy the commissioner's report to the Legislature
due on or before December 1, 1994.
(l) No person who is not a resident of California may receive or
maintain a license unless a written designation of an agent for
service of process is filed and maintained with the commissioner.
The provisions of Article 3 (commencing with Section 1600) of Chapter
4 of Part 2 shall apply to viatical settlements licensees as if they
were foreign insurers, their license a certificate of authority, and
the viatical settlements a policy, and the commissioner may modify
the agreement set forth in Section 1604 accordingly.
(m) No person licensed pursuant to this section shall engage in
any false or misleading advertising, solicitation, or practice. The
provisions of Article 6 (commencing with Section 780) and Article 6.5
(commencing with Section 790) of Chapter 1 of Part 2 shall apply to
viatical settlements licensees as if they were insurers, their
license a certificate of authority or producer's license, and the
viatical settlements a policy, and the commissioner shall liberally
construe these provisions so as to protect the interests of the
public.
(n) Any person who enters into a viatical settlement with a
viatical settlements licensee shall have the absolute right to
rescind the settlement within 15 days of execution of the settlement,
and any waiver or settlement language contrary to this subdivision
shall be void.
(o) A violation of this section is a misdemeanor.
SEC. 244. Section 10133.56 of the Insurance Code is amended to
read:
10133.56. (a) A health insurer that enters into a contract with a
professional or institutional provider to provide services at
alternative rates of payment pursuant to Section 10133 shall, at the
request of an insured, arrange for the completion of covered services
by a terminated provider, if the insured is undergoing a course of
treatment for any of the following conditions:
(1) An acute condition. An acute condition is a medical condition
that involves a sudden onset of symptoms due to an illness, injury,
or other medical problem that requires prompt medical attention and
that has a limited duration. Completion of covered services shall be
provided for the duration of the acute condition.
(2) A serious chronic condition. A serious chronic condition is a
medical condition due to a disease, illness, or other medical
problem or medical disorder that is serious in nature and that
persists without full cure or worsens over an extended period of time
or requires ongoing treatment to maintain remission or prevent
deterioration. Completion of covered services shall be provided for
a period of time necessary to complete a course of treatment and to
arrange for a safe transfer to another provider, as determined by the
health insurer in consultation with the insured and the terminated
provider and consistent with good professional practice. Completion
of covered services under this paragraph shall not exceed 12 months
from the contract termination date.
(3) A pregnancy. A pregnancy is the three trimesters of pregnancy
and the immediate postpartum period. Completion of covered services
shall be provided for the duration of the pregnancy.
(4) A terminal illness. A terminal illness is an incurable or
irreversible condition that has a high probability of causing death
within one year or less. Completion of covered services shall be
provided for the duration of a terminal illness.
(5) The care of a newborn child between birth and age 36 months.
Completion of covered services under this paragraph shall not exceed
12 months from the contract termination date.
(6) Performance of a surgery or other procedure that has been
recommended and documented by the provider to occur within 180 days
of the contract's termination date.
(b) The insurer may require the terminated provider whose services
are continued beyond the contract termination date pursuant to this
section, to agree in writing to be subject to the same contractual
terms and conditions that were imposed upon the provider prior to
termination, including, but not limited to, credentialing, hospital
privileging, utilization review, peer review, and quality assurance
requirements. If the terminated provider does not agree to comply or
does not comply with these contractual terms and conditions, the
insurer is not required to continue the provider's services beyond
the contract termination date.
(c) Unless otherwise agreed upon between the terminated provider
and the insurer or between the terminated provider and the provider
group, the agreement shall be construed to require a rate and method
of payment to the terminated provider, for the services rendered
pursuant to this section, that is the same as the rate and method of
payment for the same services while under contract with the insurer
and at the time of termination. The provider shall accept the
reimbursement as payment in full, and shall not bill the insured for
any amount in excess of the reimbursement rate, with the exception of
copayments and deductibles pursuant to subdivision (e).
(d) Notice as to how an insured may request completion of covered
services pursuant to this section shall be provided in any insurer
evidence of coverage and disclosure form issued after March 31, 2004.
An insurer shall provide a written copy of this information to its
contracting providers and provider groups. An insurer shall also
provide a copy to its insureds upon request.
(e) The payment of copayments, deductibles, or other cost-sharing
components by the insured during the period of completion of covered
services with a terminated provider shall be the same copayments,
deductibles, or other cost-sharing components that would be paid by
the insured when receiving care from a provider currently contracting
with the insurer.
(f) If an insurer delegates the responsibility of complying with
this section to its contracting entities, the insurer shall ensure
that the requirements of this section are met.
(g) For the purposes of this section:
(1) "Provider" means a person who is a licentiate as defined in
Section 805 of the Business and Professions Code or a person licensed
under Chapter 2 (commencing with Section 1000) of Division 2 of the
Business and Professions Code.
(2) "Terminated provider" means a provider whose contract to
provide services to insureds is terminated or not renewed by the
insurer or one of the insurer's contracting provider groups. A
terminated provider is not a provider who voluntarily leaves the
insurer or contracting provider group.
(3) "Provider group" includes a medical group, independent
practice association, or any other similar organization.
(h) This section shall not require an insurer or provider group to
provide for the completion of covered services by a provider whose
contract with the insurer or provider group has been terminated or
not renewed for reasons relating to medical disciplinary cause or
reason, as defined in paragraph (6) of subdivision (a) of Section 805
of the Business and Professions Code, or fraud or other criminal
activity.
(i) This section shall not require an insurer to cover services or
provide benefits that are not otherwise covered under the terms and
conditions of the insurer contract.
(j) The provisions contained in this section are in addition to
any other responsibilities of insurers to provide continuity of care
pursuant to this chapter. Nothing in this section shall preclude an
insurer from providing continuity of care beyond the requirements of
this section.
SEC. 245. Section 10133.8 of the Insurance Code is amended to
read:
10133.8. (a) The commissioner shall, on or before January 1,
2006, promulgate regulations applicable to all individual and group
policies of health insurance establishing standards and requirements
to provide insureds with appropriate access to translated materials
and language assistance in obtaining covered benefits. A health
insurer that participates in the Healthy Families Program may assess
the Healthy Families Program enrollee population separately from the
remainder of its population for purposes of subparagraph (A) of
paragraph (3) of subdivision (b).
An insurer that chooses to separate its Healthy
Families Program enrollment from the remainder of its population
shall treat the Healthy Families Program population separately for
purposes of determining whether subparagraph (A) of paragraph (3) of
subdivision (b) is applicable and shall also treat the Healthy
Families Program population separately for purposes of applying the
percentage and numerical thresholds in subparagraph (A) of paragraph
(3) of subdivision (b).
(b) The regulations described in subdivision (a) shall include the
following:
(1) A requirement to conduct an assessment of the needs of the
insured group, pursuant to this subdivision.
(2) Requirements for surveying the language preferences and
assessment of linguistic needs of insureds within one year of the
effective date of the regulations that permit health insurers to
utilize various survey methods, including, but not limited to, the
use of existing enrollment and renewal processes, newsletters, or
other mailings. Health insurers shall update the linguistic needs
assessment, demographic profile, and language translation
requirements every three years. However, the regulations may provide
that the surveys and assessments by insurers of supplemental
insurance products may be conducted less frequently than three years
if the commissioner determines that the results are unlikely to
affect the translation requirements.
(3) Requirements for the translation of vital documents that
include the following:
(A) A requirement that all vital documents, as defined pursuant to
subparagraph (B), be translated into an indicated language, as
follows:
(i) A health insurer with an insured population of 1,000,000 or
more shall translate vital documents into the top two languages other
than English as determined by the needs assessment pursuant to
paragraph (2) of subdivision (b) and any additional languages when
0.75 percent or 15,000 of the insured population, whichever number is
less, indicates in the needs assessment pursuant to paragraph (2) of
subdivision (b) a preference for written materials in that language.
(ii) A health insurer with an insured population of 300,000 or
more but less than 1,000,000 shall translate vital documents into the
top one language other than English as determined by the needs
assessment pursuant to paragraph (2) of subdivision (b) and any
additional languages when 1 percent or 6,000 of the insured
population, whichever number is less, indicates in the needs
assessment pursuant to paragraph (2) of subdivision (b) a preference
for written materials in that language.
(iii) A health insurer with an insured population of less than
300,000 shall translate vital documents into a language other than
English when 3,000 or more or 5 percent of the insured population,
whichever number is less, indicates in the needs assessment pursuant
to paragraph (2) of subdivision (b) a preference for written
materials in that language.
(B) Specification of vital documents produced by the insurer that
are required to be translated. The specification of vital documents
shall not exceed that of the Department of Health and Human Services
(HHS) Office of Civil Rights (OCR) Policy Guidance (65 Federal
Register 52762 (August 30, 2000)), but shall include all of the
following:
(i) Applications.
(ii) Consent forms.
(iii) Letters containing important information regarding
eligibility or participation criteria.
(iv) Notices pertaining to the denial, reduction, modification, or
termination of services and benefits, the right to file a complaint
or appeal.
(v) Notices advising limited-English-proficient persons of the
availability of free language assistance and other outreach materials
that are provided to insureds.
(vi) Translated documents shall not include an insurer's
explanation of benefits or similar claim processing information that
are sent to insureds unless the document requires a response by the
insured.
(C) For those documents described in subparagraph (B) that are not
standardized but contain insured specific information, health
insurers shall not be required to translate the documents into the
threshold languages identified by the needs assessment pursuant to
paragraph (2) of subdivision (b) but rather shall include with the
document a written notice of the availability of interpretation
services in the threshold languages identified by the needs
assessment pursuant to paragraph (2) of subdivision (b).
(i) Upon request, the insured shall receive a written translation
of those documents. The health insurer shall have up to, but not to
exceed, 21 days to comply with the insured's request for a written
translation. If an enrollee requests a translated document, all
timeframes and deadlines requirements related to the documents that
apply to the health insurer and insureds under the provisions of this
chapter and under any regulations adopted pursuant to this chapter
shall begin to run upon the health insurer's issuance of the
translated document.
(ii) For appeals that require expedited review and response in
accordance with the statutes and regulations of this chapter, the
health insurer may satisfy this requirement by providing notice of
the availability and access to oral interpretation services.
(D) A requirement that health insurers advise
limited-English-proficient insureds of the availability of
interpreter services.
(4) Standards to ensure the quality and accuracy of the written
translation and that a translated document meets the same standards
required for the English version of the document. The English
language documents shall determine the rights and obligations of the
parties, and the translated documents shall be admissible in evidence
only if there is a dispute regarding a substantial difference in the
material terms and conditions of the English language document and
the translated document.
(5) Requirements for individual access to interpretation services.
(6) Standards to ensure the quality and timeliness of oral
interpretation services provided by health insurers.
(c) In developing the regulations, standards, and requirements
described in this section, the commissioner shall consider the
following:
(1) Publications and standards issued by federal agencies,
including the Culturally and Linguistically Appropriate Services
(CLAS) in Health Care issued by the United States Department of
Health and Human Services Office of Minority Health in December 2000,
and the Department of Health and Human Services (HHS) Office of
Civil Rights (OCR) Policy Guidance 65 (65 Federal Register 52762
(August 30, 2000)).
(2) Other cultural and linguistic requirements under state
programs, including the Medi-Cal Managed Care Policy Letters,
cultural and linguistic requirements imposed by the State Department
of Health Services on health care service plans that contract to
provide Medi-Cal managed care services, and cultural and linguistic
requirements imposed by the Managed Risk Medical Insurance Board on
health insurers that contract to provide services in the Healthy
Families Program.
(3) Standards adopted by other states pertaining to language
assistance requirements for health insurers.
(4) Standards established by California or nationally recognized
accrediting, certifying, or licensing organizations and medical and
health care interpreter professional associations regarding
interpretation services.
(5) Publications, guidelines, reports, and recommendations issued
by state agencies or advisory committees, such as the report card to
the public on the comparative performance of plans and reports on
cultural and linguistic services issued by the Office of Patient
Advocate and the report to the Legislature from the Task Force on
Culturally and Linguistically Competent Physicians and Dentists
required pursuant to Section 852 of the Business and Professions
Code.
(6) Examples of best practices relating to language assistance
services by health care providers and health insurers that contract
for alternative rates of payment with providers, including existing
practices.
(7) Information gathered from complaints to the commissioner and
consumer assistance help lines regarding language assistance
services.
(8) The cost of compliance and the availability of translation and
interpretation services and professionals.
(9) Flexibility to accommodate variations in networks and method
of service delivery. The commissioner shall allow for health insurer
flexibility in determining compliance with the standards for oral
and written interpretation services.
(d) In designing the regulations, the commissioner shall consider
all other relevant guidelines in an effort to accomplish maximum
accessibility within a cost-efficient system of indemnification. The
commissioner shall seek public input from a wide range of interested
parties.
(e) Services, verbal communications, and written materials
provided by or developed by the health insurers that contract for
alternative rates of payment with providers, shall comply with the
standards developed under this section.
(f) Beginning on January 1, 2008, the department shall report
biennially to the Legislature regarding health insurer compliance
with the standards established by this section, including results of
compliance audits made in conjunction with other audits and reviews.
The department shall also utilize the reported information to make
recommendations for changes that further enhance standards pursuant
to this section. The commissioner shall work to ensure that the
biennial reports required by this section, and the data collected for
the reports, do not require duplicative or conflicting data
collection with other reports that may be required by
government-sponsored programs. The commissioner may also delay or
otherwise phase in implementation of the standards and requirements
in recognition of costs and availability of translation and
interpretation services and professionals.
(g) Nothing in this section shall prohibit government purchasers
from including in their contracts additional translation or
interpretation requirements, to meet the linguistic and cultural
needs, beyond those set forth pursuant to this section.
SEC. 246. Section 10178.4 of the Insurance Code is amended to
read:
10178.4. (a) When a contracting agent sells, leases, or transfers
a health provider's contract to a payor, the rights and obligations
of the provider shall be governed by the underlying contract between
the health care provider and the contracting agent.
(b) For purposes of this section, the following terms shall have
the following meanings:
(1) "Contracting agent" has the meaning set forth in paragraph (2)
of subdivision (d) of Section 10178.3.
(2) "Payor" has the meaning set forth in paragraph (3) of
subdivision (d) of Section 10178.3.
SEC. 247. Section 10764 of the Insurance Code is amended to read:
10764. (a) On and after January 1, 2006, except as provided in
subdivision (b), health insurers shall not offer or sell the
following insurance policies to employers providing coverage to
employees pursuant to Part 8.7 (commencing with Section 2120) of
Division 2 of the Labor Code:
(1) A Medicare supplement, vision only, dental only, or Champus
supplement insurance policy.
(2) A hospital indemnity, accident only, or specified disease
insurance policy that pays benefits on a fixed benefit,
cash-payment-only basis.
(b) However, an insurer may sell one or more of the types of
policies listed in paragraph (1) or (2) of subdivision (a) if the
employer has purchased or purchases concurrently health care coverage
meeting the standards of Part 8.7 (commencing with Section 2120) of
Division 2 of the Labor Code.
(c) If an employer, as defined in Section 2122.6 of the Labor
Code, chooses to purchase more than one means of coverage, the
employer may require a higher level of contribution from potential
enrollees so long as one means of coverage meets the standards of
this section.
(d) An employer, as defined in Section 2122.6 of the Labor Code,
may purchase health care coverage that includes additional
out-of-pocket expenses, such as coinsurance or deductibles. In
reviewing the share-of-premium, deductibles, copayments, and other
out-of-pocket costs paid by insureds, the department shall consider
those permitted by the board under Part 8.7 (commencing with Section
2120) of Division 2 of the Labor Code.
(e) Notwithstanding subdivision (b), a medium employer, as defined
in Section 2122.4 of the Labor Code, may require an enrollee to
contribute more than 20 percent of the cost of coverage if both of
the following apply:
(1) The coverage provided by the employer includes coverage for
dependents.
(2) The employer contributes an amount that exceeds 80 percent of
the cost of the coverage for an individual employee.
(f) The policy includes prescription drug coverage, which shall be
subject to coinsurance, deductibles, and other out-of-pocket costs
consistent with subdivision (d).
SEC. 248. Section 12144 of the Insurance Code is amended to read:
12144. Motor club service is the rendering or procuring of, or
reimbursement for, any of the services defined in this chapter to any
person in connection with the ownership, operation, use, or
maintenance of a motor vehicle, including a vacation trailer, house
or otherwise, or a boat capable of ordinary transportation on a
trailer and its trailer, by the person upon any of the following
considerations:
(a) The person is or will become a member of the club rendering or
furnishing the service.
(b) The person is or will become in any manner affiliated with the
club.
(c) The person is or will become entitled to receive membership or
other motor club service from the club by virtue of any agreement or
understanding with any club.
This section shall not authorize a motor club to furnish any
service on a reimbursement basis that constitutes the transaction of
insurance. The commissioner may make reasonable rules and
regulations specifying services that constitute the transaction of
insurance for the purposes of this part and which may not be offered
on a reimbursement basis. Rules and regulations shall be adopted,
amended, and repealed in accordance with Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code.
SEC. 249. Section 12671 of the Insurance Code is amended to read:
12671. As used in this part, the following terms have the
following meanings:
(a) "Group policy" means a group health insurance policy providing
medical, hospital, surgical, major medical, or comprehensive medical
coverage issued by an insurer, a group contract issued by a hospital
service corporation, or medical, hospital, surgical, major medical,
or comprehensive medical coverage otherwise provided by a
policyholder to its employees or members, except for self-insurance
programs provided by employers that are not exempt from ERISA, as
specified in subdivision (i). For the purposes of this part, a group
policy not having an established annual renewal date shall be
considered renewed on each anniversary of its effective date.
(b) "Conversion coverage" means health insurance benefits
providing hospital, surgical, major medical, or comprehensive medical
coverage issued to an individual under a converted policy.
(c) "Converted policy" means a policy or contract providing
conversion coverage issued by an insurance company or by a hospital
service corporation, or individual hospital, surgical, major medical,
or comprehensive medical coverage otherwise provided by a
policyholder to its employees or members.
(d) "Insurer" means the entity issuing a group policy, an
individual or converted policy, a hospital service contract or an
employer or employee organization otherwise providing medical,
hospital, surgical, major medical, or comprehensive medical coverage
to its employees or members.
(e) "Insurance" refers to health insurance, major medical, or
comprehensive coverage paid by premium or contribution under a group
policy, a hospital service contract, or as otherwise provided by a
policyholder to its employees or members other than by self-insuring
except in the case of a plan that is exempt from ERISA, but does
include an employer plan that is exempt from ERISA as specified in
subdivision (i). "Insurance" does not include any of the following:
(1) Coverage provided solely as an accrued liability or by reason
of a disability extension.
(2) Medicare supplement insurance.
(3) Vision-only insurance.
(4) Dental-only insurance.
(5) CHAMPUS supplement insurance.
(6) Hospital indemnity insurance.
(7) Accident-only insurance.
(8) Short-term limited duration health insurance. "Short-term
limited duration health insurance" means individual health insurance
coverage that is offered by a licensed insurance company, intended to
be used as transitional or interim coverage to remain in effect for
not more than 185 days, that cannot be renewed or otherwise continued
for more than one additional period of not more than 185 days, and
that is not intended or marketed as health insurance coverage, a
health care service plan, or a health maintenance organization
subject to guaranteed issuance or guaranteed renewal pursuant to
relevant state or federal law.
(9) Specified disease insurance that does not pay benefits on a
fixed benefit, cash payment only basis.
(f) "Policyholder" means the holder of a group policy issued by an
insurer, a holder of a group contract issued by a hospital service
corporation or an employer, employee association, or other entity
otherwise providing medical, hospital, surgical, major medical, or
comprehensive medical coverage on a group basis to its employees or
members.
(g) "Premium" means contribution or other consideration paid or
payable for coverage under a group policy or converted policy.
(h) "Medicare" means Title XVIII of the United States Social
Security Act as added by the Social Security Amendments of 1965 or as
later amended or superseded.
(i) "Employer plan that is exempt from ERISA" means any employer
plan that, pursuant to the provisions of Section 1003 of Title 29 of
the United States Code, is not covered by or that is exempt from the
provisions of Subchapter I (commencing with Section 1001) of Chapter
18 of Title 29 of the United States Code, except that, in the case of
a governmental plan, it only includes a self-insured governmental
plan as defined in subdivision (j).
(j) "Self-insured governmental plan" means a self-insured plan
established or maintained for its employees by any public entity, as
defined in Section 811.2 of the Government Code, that is a
governmental plan as defined in subdivision (32) of Section 1002 of
Title 29 of the United States Code.
SEC. 250. Section 12693.55 of the Insurance Code is amended to
read:
12693.55. (a) Prior to implementation of the Health Insurance Act
of 2003, the board shall, to the maximum extent permitted by federal
law, ensure that persons who are either covered or eligible for the
Healthy Families Program will retain the same amount, duration, and
scope of benefits that they currently receive or are currently
eligible to receive, including dental, vision, and mental benefits.
The board shall consult with a stakeholder group that shall include
all of the following:
(1) Consumer advocate groups that represent persons eligible for
the Healthy Families Program.
(2) Organizations that represent persons with disabilities.
(3) Representatives of public hospitals, clinics, safety net
providers, and other providers.
(4) Labor organizations that represent employees whose families
include persons likely to be eligible for the Healthy Families
Program.
(5) Employer organizations.
(b) The board shall develop a Healthy Families Program premium
assistance program for eligible individuals as permitted under
federal law to reduce state costs and maximize federal financial
participation by providing health care coverage to eligible
individuals through a combination of available employer-based
coverage and a wraparound benefit that covers any gap between the
employer-based coverage and the benefits required by this part.
(c) The board shall do all of the following in implementing the
premium assistance program:
(1) Require eligible individuals with access to employer-based
coverage to enroll themselves or their families or both in the
available employer-based coverage if the board finds that enrollment
in that coverage is cost-effective.
(2) Promptly reimburse an eligible individual for his or her share
of premium cost under the employer-based coverage, minus any
contribution that an individual would be required to pay pursuant to
Section 12693.43.
(d) If federal approval of a premium assistance program cannot be
obtained, the board in consultation with the stakeholder group shall
explore alternatives that provide that persons who are either covered
or eligible for the Healthy Families Program retain the same amount,
duration, and scope of benefits that they currently receive or are
currently eligible to receive, including vision, dental, and mental
health benefits.
SEC. 251. Section 12975.7 of the Insurance Code is amended to
read:
12975.7. (a) All moneys received by the commissioner in payment
of lawful fees or reimbursements pursuant to this code shall be
transmitted to the Treasurer to be deposited in the State Treasury to
the credit of the Insurance Fund. Unless specified in this code to
be deposited in a different fund, all moneys received by the
commissioner in fines, penalties, assessments, costs, or other
sanctions shall be transmitted to the State Treasury for deposit in
the General Fund.
(b) The money in the Insurance Fund received from the commissioner
pursuant to this section is hereby appropriated to pay the refunds
authorized by this code.
(c) The balance of the money in the Insurance Fund shall be used
for the purposes specified in Section 12975.9, for the support of the
Department of Insurance as authorized by the Budget Act, and for
related cashflow needs.
SEC. 252. Section 12975.8 of the Insurance Code is amended to
read:
12975.8. (a) The Insurance Fund shall, in addition to the funds
specified in Section 12975.7, consist of all of the following:
(1) All moneys appropriated to the fund in accordance with law.
(2) All moneys deposited into the State Treasury from any source
whatever in payment of lawful fees or reimbursements collected by the
Department of Insurance.
(3) The balance remaining in the Insurance Fund at the end of the
fiscal year, whether the moneys received are from an appropriation,
fees, or from reimbursements for services rendered.
(b) (1) All moneys in the Insurance Fund credited to the Seismic
Safety Account shall be subject to an annual appropriation each
fiscal year for the purposes specified in Section 12975.9.
(2) All other moneys in the Insurance Fund shall be subject to an
annual appropriation each fiscal year for the support of the
Department of Insurance.
(3) If the current cash balance in the Seismic Safety Account is
not adequate to fund the amount appropriated from it in the annual
Budget Act, the Insurance Fund, upon enactment of the Budget Act,
shall loan to the account the amount of the appropriation, and one
half of this amount shall be transferred to the Seismic Safety
Commission. The second half of the appropriated amount shall be
transferred to the Seismic Safety Commission from the Seismic Safety
Account on or before December 31 of each year. This loan shall be
repaid by revenues collected pursuant to Section 12975.9.
(c) Any balance remaining in the Insurance Fund at the end of the
fiscal year may be carried forward to the next succeeding fiscal
year.
(d) Whenever the balance in the Insurance Fund is not sufficient
to cover cashflow in the payment of authorized expenditures, the
department may borrow funds as may be necessary from whatever source
and under terms and conditions as may be determined by the Director
of Finance. Repayment shall be made from revenues received by the
department for the same fiscal year for which the loan is made.
SEC. 253. Section 98.2 of the Labor Code is amended to read:
98.2. (a) Within 10 days after service of notice of an order,
decision, or award the parties may seek review by filing an appeal to
the superior court, where the appeal shall be heard de novo. A copy
of the appeal request shall be served upon the Labor Commissioner by
the appellant. For purposes of computing the 10-day period after
service, Section 1013 of the Code of Civil Procedure is applicable.
(b) Whenever an employer files an appeal pursuant to this section,
the employer shall post an undertaking with the reviewing court in
the amount of the order, decision, or award. The undertaking shall
consist of an appeal bond issued by a licensed surety or a cash
deposit with the court in the amount of the order, decision, or
award. The employer shall provide written notification to the other
parties and the Labor Commissioner of the posting of the undertaking.
The undertaking shall be on the condition that, if any judgment is
entered in favor of the employee, the employer shall pay the amount
owed pursuant to the judgment, and if the appeal is withdrawn or
dismissed without entry of judgment, the employer shall pay the
amount owed pursuant to the order, decision, or award of the Labor
Commissioner unless the parties have executed a settlement agreement
for payment of some other amount, in which case the employer shall
pay the amount that the employer is obligated to pay under the terms
of the settlement agreement. If the employer fails to pay the amount
owed within 10 days of entry of the judgment, dismissal, or
withdrawal of the appeal, or the execution of a settlement agreement,
a portion of the undertaking equal to the amount owed, or the entire
undertaking if the amount owed exceeds the undertaking, is forfeited
to the employee.
(c) If the party seeking review by filing an appeal to the
superior court is unsuccessful in the appeal, the court shall
determine the costs and reasonable attorney's fees incurred by the
other parties to the appeal, and assess that amount as a cost upon
the party filing the appeal. An employee is successful if the court
awards an amount greater than zero.
(d) If no notice of appeal of the order, decision, or award
is filed within the period set forth in subdivision (a), the order,
decision, or award shall, in the absence of fraud, be deemed the
final order.
(e) The Labor Commissioner shall file, within 10 days of the order
becoming final pursuant to subdivision (d), a certified copy of the
final order with the clerk of the superior court of the appropriate
county unless a settlement has been reached by the parties and
approved by the Labor Commissioner. Judgment shall be entered
immediately by the court clerk in conformity therewith. The judgment
so entered has the same force and effect as, and is subject to all
of the provisions of law relating to, a judgment in a civil action,
and may be enforced in the same manner as any other judgment of the
court in which it is entered. Enforcement of the judgment shall
receive court priority.
(f) (1) In order to ensure that judgments are satisfied, the Labor
Commissioner may serve upon the judgment debtor, personally or by
first-class mail at the last known address of the judgment debtor
listed with the division, a form similar to, and requiring the
reporting of the same information as, the form approved or adopted by
the Judicial Council for purposes of subdivision (a) of Section
116.830 of the Code of Civil Procedure to assist in identifying the
nature and location of any assets of the judgment debtor.
(2) The judgment debtor shall complete the form and cause it to be
delivered to the division at the address listed on the form within
35 days after the form has been served on the judgment debtor, unless
the judgment has been satisfied. In case of willful failure by the
judgment debtor to comply with this subdivision, the division or the
judgment creditor may request the court to apply the sanctions
provided in Section 708.170 of the Code of Civil Procedure.
(g) Notwithstanding subdivision (e), the Labor Commissioner may
stay execution of any judgment entered upon an order, decision, or
award that has become final upon good cause appearing therefor and
may impose the terms and conditions of the stay of execution. A
certified copy of the stay of execution shall be filed with the clerk
entering the judgment.
(h) When a judgment is satisfied in fact, other than by execution,
the Labor Commissioner may, upon the motion of either party or on
its own motion, order entry of satisfaction of judgment. The clerk
of the court shall enter a satisfaction of judgment upon the filing
of a certified copy of the order.
(i) The Labor Commissioner shall make every reasonable effort to
ensure that judgments are satisfied, including taking all appropriate
legal action and requiring the employer to deposit a bond as
provided in Section 240.
(j) The judgment creditor, or the Labor Commissioner as assignee
of the judgment creditor, is entitled to court costs and reasonable
attorney's fees for enforcing the judgment that is rendered pursuant
to this section.
SEC. 254. Section 141 of the Labor Code is amended to read:
141. (a) The terms of office of the members of the board shall be
four years and they shall hold office until the appointment and
qualification of a successor. The terms of the members of the board
first appointed shall expire as follows: three members, one
representative from management, one representative from labor, and
one representative from occupational health, on June 1, 1974; three
members, one representative from management, one representative from
labor, and one representative from occupational safety, on June 1,
1975; one member June 1, 1976. The terms shall thereafter expire in
the same relative order. Vacancies occurring shall be filled by
appointment to the unexpired term.
(b) Each member of the board shall receive one hundred dollars
($100) for each day of his or her actual attendance at meetings of
the board, and other official business of the board, and his or her
actual and necessary traveling expenses incurred in the performance
of his or her duty as a member.
SEC. 255. Section 143.2 of the Labor Code is amended to read:
143.2. The board, acting as a whole, may adopt, amend, or repeal
rules of practice and procedure pertaining to hearings on
applications for permanent variances, variance appeals, and other
matters within its jurisdiction. All rules of practice and procedure
amendments thereto, or repeal thereof, shall be made in accordance
with the provisions of Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code.
SEC. 256. Section 2140.5 of the Labor Code is amended to read:
2140.5. The fee paid by employers shall be based on the cost of
coverage for all enrollees, and, if applicable, their dependents.
The fee to be paid by each employer shall be based on the number of
potential enrollees, and, if applicable, dependents, using the
employer's own workforce on a date specified by the board as the
basis for the allocation and other factors as the board may determine
in order to provide coverage that meets the standards of this part.
To assist the board in determining the fee, each employer shall
provide to the board information as specified by the board regarding
potential enrollees, and, if applicable, dependents. To the extent
feasible, the board shall work with the Employment Development
Department to facilitate the provision of information regarding the
number of potential enrollees and dependents.
SEC. 257. Section 2160.1 of the Labor Code is amended to read:
2160.1. Proof of coverage shall be demonstrated by any of the
following:
(a) Any health care coverage that meets the minimum requirements
set forth in Chapter 2.2 (commencing with Section 1340) of Division 2
of the Health and Safety Code.
(b) A group health insurance policy, as defined in subdivision (b)
of Section 106 of the Insurance Code, that covers hospital,
surgical, and medical care expenses, provided the maximum
out-of-pocket costs for insureds do not exceed the maximum
out-of-pocket costs for enrollees of health care service plans
providing benefits under a preferred provider organization policy.
For the purposes of this section, a group health insurance policy
shall not include any of the following:
(1) Medicare supplement, vision only, dental only, and Champus
supplement insurance.
(2) Hospital indemnity, accident only, or specified disease
insurance that pays benefits on a fixed benefit, cash-payment-only
basis.
(c) Any Taft-Hartley health and welfare fund or any other lawful
collective bargaining agreement that provides for health and welfare
coverage for a collective bargaining unit or other employees thereby
covered.
(d) Any employer-sponsored group health plan meeting the
requirements of the federal Employee Retirement Income Security Act
of 1974 (29 U.S.C. Sec. 1001 et seq.), provided it meets the benefits
required under subdivision (a) or (b).
(e) A multiple employer welfare arrangement established pursuant
to Section 742.20 of the Insurance Code, provided that its benefits
have not changed after January 1, 2004, or that it meets the benefits
required under subdivision (a) or (b).
(f) Coverage provided under the Public Employees' Medical and
Hospital Care Act (Part 5 (commencing with Section 22751) of Division
5 of Title 2 of the Government Code, provided it meets the benefits
required under subdivision (a) or (b) or is otherwise collectively
bargained.
(g) Health coverage provided by the University of California to
students of the University of California who are also employed by the
University of California.
SEC. 258. Section 2190 of the Labor Code is amended to read:
2190. (a) Employers shall provide information to the board
regarding potential enrollees, and, if applicable, dependents as
prescribed by the board to assist the board in obtaining information
necessary for enrollment. In no case shall the board require the
employer to obtain from the potential enrollee information about the
family income or other eligibility requirements for Medi-Cal, the
Healthy Families Program, or other public programs other than that
information about the enrollee's employment status otherwise known to
the employer consistent with existing state and federal law and
regulation.
(b) The board shall obtain enrollment information from potential
enrollees and, if applicable, dependents to be covered by the
program. The enrollee may voluntarily provide information sufficient
to determine whether the enrollee or dependents may be eligible for
coverage under Medi-Cal, the Healthy Families Program, or other
public programs if the enrollee chooses to seek enrollment in those
programs. The board shall use a uniform enrollment form for
obtaining that information. The board shall provide information to
enrollees covered by the program regarding the coverage available
under the program and other programs, including Medi-Cal and the
Healthy Families Program, for which enrollees or dependents may be
eligible.
SEC. 259. Section 2190.2 of the Labor Code is amended to read:
2190.2. (a) The board shall provide to the State Department of
Health Services information concerning the potential or continuing
eligibility of enrollees and dependents in the program for Medi-Cal.
(b) (1) For those enrollees and dependents of the program who are
determined to be eligible for Medi-Cal, the board shall provide the
state's share of financial participation for the cost of Medi-Cal
coverage provided through the program.
(2) For those enrollees and dependents of the program who are
determined to be eligible for the Healthy Families Program, the board
shall provide the state's share of financial participation for the
cost of the Healthy Families Program coverage provided through the
program.
(c) Nothing in this part shall affect the authority of the State
Department of Health Services or the board to verify eligibility as
required by federal law.
(d) The board shall have authority to make any necessary
repayments of enrollee contributions to persons whose coverage is
provided under this section, and may also delegate to the State
Department of Health Services the authority to repay those
contributions.
(e) The State Department of Health Services shall seek all state
plan amendments and federal approvals as necessary to maximize the
amount of any federal financial participation available.
SEC. 260. Section 2200 of the Labor Code is amended to read:
2200. A contract entered into by the board pursuant to this part
shall be exempt from any provision of law relating to competitive
bidding, and shall be exempt from the review or approval of any
division of the Department of General Services. The board shall not
be required to specify the amounts encumbered for each contract, but
may allocate funds to each contract based on the projected or actual
enrollee enrollments to a total amount not to exceed the amount
appropriated for the program including applicable contributions.
SEC. 261. Section 2210 of the Labor Code is amended to read:
2210. (a) The State Health Purchasing Fund is hereby created in
the State Treasury and, notwithstanding Section 13340 of the
Government Code, is continuously appropriated to the board for the
purposes specified in this part.
(b) The board shall authorize the expenditure from the fund of
applicable employer fees and enrollee contributions that are
deposited into the fund. This shall include the authority for the
board to transfer funds to two separate special deposit funds to be
established by the board pursuant to this part, and administered
respectively by the State Department of Health Services and the
board, to be used as the state's share of financial participation for
the respective costs of Medi-Cal or the Healthy Families Program
coverage provided to enrollees, and, if applicable, dependents who
enroll in Medi-Cal or the Healthy Families Program.
(c) Notwithstanding Section 2130.4, the board is authorized to
obtain a loan from the General Fund for all necessary and reasonable
expenses related to the establishment and administration of this part
prior to the collection of the employer fee. The proceeds of the
loan are subject to appropriation in the annual Budget Act. The
board shall repay principal and interest, using the rate of interest
paid under the Pooled Money Investment Account, to the General Fund
no later than five years after the first year of implementation of
the employer fee.
SEC. 262. Section 3099 of the Labor Code is amended to read:
3099. (a) The Division of Apprenticeship Standards shall do all
of the following:
(1) On or before July 1, 2001, establish and validate minimum
standards for the competency and training of electricians through a
system of testing and certification.
(2) On or before March 1, 2000, establish an advisory committee
and panels as necessary to carry out the functions under this
section. There shall be contractor representation from both joint
apprenticeship programs and unilateral nonunion programs in the
electrical contracting industry.
(3) On or before July 1, 2003, establish an electrical
certification curriculum committee comprised of representatives of
the State Department of Education, the California Community Colleges,
and the division. The committee shall establish written educational
curriculum standards for enrollees in training programs established
pursuant to Section 3099.4.
(4) On or before July 1, 2001, establish fees necessary to
implement this section.
(5) On or before July 1, 2001, establish and adopt regulations to
enforce this section.
(6) Issue certification cards to electricians who have been
certified pursuant to this section. Fees collected pursuant to
paragraph (4) are continuously appropriated in an amount sufficient
to pay the costs of issuing certification cards, and that amount may
be expended for that purpose by the division.
(b) There shall be no discrimination for or against any person
based on membership or nonmembership in a union.
(c) As used in this section, "electricians" includes all persons
who engage in the connection of electrical devices for electrical
contractors licensed pursuant to Section 7058 of the Business and
Professions Code, specifically, contractors classified as electrical
contractors in the Contractors' State License Board Rules and
Regulations. This section does not apply to electrical connections
under 100 volt-amperes. This section does not apply to persons
performing work to which Section 7042.5 of the Business and
Professions Code is applicable, or to electrical work ordinarily and
customarily performed by stationary engineers. This section does not
apply to electrical work in connection with the installation,
operation, or maintenance of temporary or portable electrical
equipment performed by technicians in the theatrical, motion picture
production, television, hotel, exhibition, or trade show industries.
SEC. 263. Section 3600.1 of the Labor Code is amended to read:
3600.1. (a) Whenever any firefighter of the state, as defined in
Section 19886 of the Government Code, is injured, dies, or is
disabled from performing his or her duties as a firefighter by reason
of his or her proceeding to or engaging in a fire-suppression or
rescue operation, or the protection or preservation of life or
property, anywhere in this state, including the jurisdiction in which
he or she is employed, but is not at the time acting under the
immediate direction of his or her employer, he or she or his or her
dependents, as the case may be, shall be accorded by his or her
employer all of the same benefits of this division that he, she, or
they would have received had that firefighter been acting under the
immediate direction of his or her employer. Any injury, disability,
or death incurred under the circumstances described in this section
shall be deemed to have arisen out of and been sustained in the
course of employment for purposes of workers' compensation and all
other benefits.
(b) Nothing in this section shall be deemed to:
(1) Require the extension of any benefits to a firefighter who at
the time of his or her injury, death, or disability is acting for
compensation from one other than the state.
(2) Require the extension of any benefits to a firefighter
employed by the state where by departmental regulation, whether now
in force or hereafter enacted or promulgated, the activity giving
rise to the injury, disability, or death, is expressly prohibited.
(c) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5 of the Government Code, 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 shall
not become effective unless approved by the Legislature in the annual
Budget Act.
SEC. 264. Section 4610 of the Labor Code, as added by Chapter 203
of the Statutes of 2003, is amended and renumbered to read:
4611. (a) When a contracting agent sells, leases, or transfers a
health provider's contract to a payor, the rights and obligations of
the provider shall be governed by the underlying contract between the
health care provider and the contracting agent.
(b) For purposes of this section, the following terms have the
following meanings:
(1) "Contracting agent" has the meaning set forth in paragraph (2)
of subdivision (d) of Section 4609.
(2) "Payor" has the meaning set forth in paragraph (3) of
subdivision (d) of Section 4609.
SEC. 265. Section 7304 of the Labor Code is amended to read:
7304. (a) Except as provided in subdivision (b), the division
shall cause all conveyances to be inspected at least once each year.
If a conveyance is found upon inspection to be in a safe condition
for operation, a permit for operation for not longer than one year
shall be issued by the division.
(b) If a conveyance is subject to a full maintenance service
contract, the division may, after investigation and inspection, issue
a permit for operation for not longer than two years.
SEC. 266. Section 186.8 of the Penal Code is amended to read:
186.8. Notwithstanding that no response or claim has been filed
pursuant to Section 186.5, in all cases where property is forfeited
pursuant to this chapter and, if necessary, sold by the Department of
General Services or local governmental entity, the money forfeited
or the proceeds of sale shall be distributed by the state or local
governmental entity as follows:
(a) To the bona fide or innocent purchaser, conditional sales
vendor, or holder of a valid lien, mortgage, or security interest, if
any, up to the amount of his or her interest in the property or
proceeds, when the court declaring the forfeiture orders a
distribution to that person. The court shall endeavor to discover
all those lienholders and protect their interests and may, at its
discretion, order the proceeds placed in escrow for up to an
additional 60 days to ensure that all valid claims are received and
processed.
(b) To the Department of General Services or local governmental
entity for all expenditures made or incurred by it in connection with
the sale of the property, including expenditures for any necessary
repairs, storage, or transportation of any property seized under this
chapter.
(c) To the general fund of the state or local governmental entity,
whichever prosecutes.
(d) In any case involving a violation of subdivision (b) of
Section 311.2, or Section 311.3 or 311.4, in lieu of the distribution
of the proceeds provided for by subdivisions (b) and (c), the
proceeds shall be deposited in the county children's trust fund,
established pursuant to Section 18966 of the Welfare and Institutions
Code, of the county that filed the petition of forfeiture. If the
county does not have a children's trust fund, the funds shall be
deposited in the State Children's Trust Fund, established pursuant to
Section 18969 of the Welfare and Institutions Code.
(e) In any case involving crimes against the state beverage
container recycling program, in lieu of the distribution of proceeds
provided in subdivision (c), the proceeds shall be deposited in the
penalty account established pursuant to subdivision (d) of Section
14580 of the Public Resources Code, except that a portion of the
proceeds equivalent to the cost of prosecution in the case shall be
distributed to the local prosecuting entity that filed the petition
of forfeiture.
SEC. 267. Section 330b of the Penal Code is amended to read:
330b. (a) It is unlawful for any person to manufacture, repair,
own, store, possess, sell, rent, lease, let on shares, lend or give
away, transport, or expose for sale or lease, or to offer to repair,
sell, rent, lease, let on shares, lend or give away, or permit the
operation, placement, maintenance, or keeping of, in any place, room,
space, or building owned, leased, or occupied, managed, or
controlled by that person, any slot machine or device, as defined in
this section.
It is unlawful for any person to make or to permit the making of
an agreement with another person regarding any slot machine or
device, by which the user of the slot machine or device, as a result
of the element of hazard or chance or other unpredictable outcome,
may become entitled to receive money, credit, allowance, or other
thing of value or additional chance or right to use the slot machine
or device, or to receive any check, slug, token, or memorandum
entitling the holder to receive money, credit, allowance, or other
thing of value.
(b) The limitations of subdivision (a), insofar as they relate to
owning, storing, possessing, or transporting any slot machine or
device, do not apply to any slot machine or device located upon or
being transported by any vessel regularly operated and engaged in
interstate or foreign commerce, so long as the slot machine or device
is located in a locked compartment of the vessel, is not accessible
for use, and is not used or operated within the territorial
jurisdiction of this state.
(c) The limitations of subdivision (a) do not apply to a
manufacturer's business activities that are conducted in accordance
with the terms of a license issued by a tribal gaming agency pursuant
to the tribal-state gaming compacts entered into in accordance with
the Indian Gaming Regulatory Act (18 U.S.C. Sec. 1166 to 1168,
inclusive, and 25 U.S.C. Sec. 2701 et seq.).
(d) For purposes of this section, "slot machine or device" means a
machine, apparatus, or device that is adapted, or may readily be
converted, for use in a way that, as a result of the insertion of any
piece of money or coin or other object, or by any other means, the
machine or device is caused to operate or may be operated, and by
reason of any element of hazard or chance or of other outcome of
operation unpredictable by him or her, the user may receive or become
entitled to receive any piece of money, credit, allowance, or thing
of value, or additional chance or right to use the slot machine or
device, or any check, slug, token, or memorandum, whether of value or
otherwise, which may be exchanged for any money, credit, allowance,
or thing of value, or which may be given in trade, irrespective of
whether it may, apart from any element of hazard or chance or
unpredictable outcome of operation, also sell, deliver, or present
some merchandise, indication of weight, entertainment, or other thing
of value.
(e) Every person who violates this section is guilty of a
misdemeanor.
(f) Pinball and other amusement machines or devices, which are
predominantly games of skill, whether affording the opportunity of
additional chances or free plays or not, are not included within the
term slot machine or device, as defined in this section.
SEC. 268. Section 330.7 of the Penal Code is amended to read:
330.7. (a) It shall be a defense to any prosecution under this
chapter relating to slot machines, as defined in subdivision (d) of
Section 330b, if the defendant shows that the slot machine is an
antique slot machine and was not operated for gambling purposes while
in the defendant's possession. For the purposes of this section,
the term "antique slot machine" means a slot machine that is over 25
years of age.
(b) Notwithstanding Section 335a, whenever the defense provided by
subdivision (a) is offered, no slot machine seized from a defendant
shall be destroyed or otherwise altered until after a final court
determination that the defense is not applicable. If the defense is
applicable, the machine shall be returned pursuant to provisions of
law providing for the return of property.
(c) It is the purpose of this section to protect the collection
and restoration of antique slot machines not presently utilized for
gambling purposes because of their aesthetic interest and importance
in California history.
SEC. 269. Section 597b of the Penal Code is amended to read:
597b. (a) Except as provided in subdivision (b), any person who,
for amusement or gain, causes any bull, bear, or other animal, not
including any dog, to fight with like kind of animal or creature, or
causes any animal, including any dog, to fight with a different kind
of animal or creature, or with any human being; or who, for amusement
or gain, worries or injures any bull, bear, dog, or other animal, or
causes any bull, bear, or other animal, not including any dog, to
worry or injure each other; and any person who permits the same to be
done on any premises under his or her charge or control; and any
person who aids, abets, or is present at the fighting or worrying of
an animal or creature, as a spectator, is guilty of a misdemeanor.
(b) Notwithstanding subdivision (a), any person who, for amusement
or gain, causes any cock to fight with another cock or with a
different kind of animal or creature or with any human being; or who,
for amusement or gain, worries or injures any cock, or causes any
cock to worry or injure another animal; and any person who permits
the same to be done on any premises under his or her charge or
control, and any person who aids or abets the fighting or worrying of
any cock is guilty of a misdemeanor punishable by imprisonment in a
county jail for a period not to exceed one year, by a fine not to
exceed five thousand dollars ($5,000), or by both that imprisonment
and fine.
(c) A second or subsequent conviction of this section, Section
597c, or Section 597j is a misdemeanor punishable by imprisonment
in a county jail for a
period not to exceed one year, by a fine not to exceed twenty-five
thousand dollars ($25,000), or by both that imprisonment and fine,
except in unusual circumstances where the interests of justice would
be better served by the imposition of a lesser sentence.
(d) For the purposes of this section, aiding and abetting a
violation of this section shall consist of something more than merely
being present or a spectator at a place where a violation is
occurring.
SEC. 270. Section 597c of the Penal Code is amended to read:
597c. (a) Except as provided in subdivision (b), whoever owns,
possesses, keeps, or trains any animal with the intent that the
animal shall be engaged in an exhibition of fighting; or is present
at any place, building, or tenement where preparations are being made
for an exhibition of the fighting of animals with the intent to be
present at that exhibition; or is present at that exhibition, is
guilty of a misdemeanor.
(b) Notwithstanding subdivision (a), whoever owns, possesses,
keeps, or trains any cock or other bird with the intent that the cock
or other bird shall be engaged in an exhibition of fighting is
guilty of a crime punishable by imprisonment in a county jail for a
period not to exceed one year, by a fine not to exceed five thousand
dollars ($5,000), or by both that imprisonment and fine.
(c) A second or subsequent conviction of this section, Section
597b, or Section 597j is a misdemeanor punishable by imprisonment in
a county jail for a period not to exceed one year, by a fine not to
exceed twenty-five thousand dollars ($25,000), or by both that
imprisonment and fine, except in unusual circumstances where the
interests of justice would be better served by the imposition of a
lesser sentence.
(d) This section shall not apply to an exhibition of fighting of a
dog with another dog.
SEC. 271. Section 1372 of the Penal Code is amended to read:
1372. (a) (1) If the medical director of the state hospital or
other facility to which the defendant is committed, or the community
program director, county mental health director, or regional center
director providing outpatient services, determines that the defendant
has regained mental competence, the director shall immediately
certify that fact to the court by filing a certificate of restoration
with the court by certified mail, return receipt requested. For
purposes of this section, the date of filing shall be the date on the
return receipt.
(2) The court's order committing an individual to a state hospital
or other treatment facility pursuant to Section 1370 shall include
direction that the sheriff shall redeliver the patient to the court
without any further order from the court upon receiving from the
state hospital or treatment facility a copy of the certificate of
restoration.
(3) The defendant shall be returned to the committing court in the
following manner:
(A) A patient who remains confined in a state hospital or other
treatment facility shall be redelivered to the sheriff of the county
from which the patient was committed. The sheriff shall immediately
return the person from the state hospital or other treatment facility
to the court for further proceedings.
(B) The patient who is on outpatient status shall be returned by
the sheriff to court through arrangements made by the outpatient
treatment supervisor.
(C) In all cases, the patient shall be returned to the committing
court no later than 10 days following the filing of a certificate of
restoration. The state shall only pay for 10 hospital days for
patients following the filing of a certificate of restoration of
competency. The State Department of Mental Health shall report to
the fiscal and appropriate policy committees of the Legislature on an
annual basis in February, on the number of days that exceed the
10-day limit prescribed in this subparagraph. This report shall
include, but not be limited to, a data sheet that itemizes by county
the number of days that exceed this 10-day limit during the preceding
year.
(b) If the defendant becomes mentally competent after a
conservatorship has been established pursuant 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,
and Section 1370, the conservator shall certify that fact to the
sheriff and district attorney of the county in which the defendant's
case is pending, defendant's attorney of record, and the committing
court.
(c) When a defendant is returned to court with a certification
that competence has been regained, the court shall notify either the
community program director, the county mental health director, or the
regional center director and the Director of Developmental Services,
as appropriate, of the date of any hearing on the defendant's
competence and whether or not the defendant was found by the court to
have recovered competence.
(d) If the committing court approves the certificate of
restoration to competence as to a person in custody, the court shall
hold a hearing to determine whether the person is entitled to be
admitted to bail or released on own recognizance status pending
conclusion of the proceedings. If the superior court approves the
certificate of restoration to competence regarding a person on
outpatient status, unless it appears that the person has refused to
come to court, that person shall remain released either on own
recognizance status, or, in the case of a developmentally disabled
person, either on the defendant's promise or on the promise of a
responsible adult to secure the person's appearance in court for
further proceedings. If the person has refused to come to court, the
court shall set bail and may place the person in custody until bail
is posted.
(e) A defendant subject to either subdivision (a) or (b) who is
not admitted to bail or released under subdivision (d) may, at the
discretion of the court, upon recommendation of the director of the
facility where the defendant is receiving treatment, be returned to
the hospital or facility of his or her original commitment or other
appropriate secure facility approved by the community program
director, the county mental health director, or the regional center
director. The recommendation submitted to the court shall be based
on the opinion that the person will need continued treatment in a
hospital or treatment facility in order to maintain competence to
stand trial or that placing the person in a jail environment would
create a substantial risk that the person would again become
incompetent to stand trial before criminal proceedings could be
resumed.
(f) Notwithstanding subdivision (e), if a defendant is returned by
the court to a hospital or other facility for the purpose of
maintaining competency to stand trial and that defendant is already
under civil commitment to that hospital or facility from another
county pursuant to the Lanterman-Petris-Short Act (Part 1 (commencing
with Section 5000) of Division 5 of the Welfare and Institutions
Code) or as a developmentally disabled person committed pursuant to
Article 2 (commencing with Section 6500) of Chapter 2 of Part 2 of
Division 6 of the Welfare and Institutions Code, the costs of housing
and treating the defendant in that facility following return
pursuant to subdivision (e) shall be the responsibility of the
original county of civil commitment.
SEC. 272. Section 1463.010 of the Penal Code is amended to read:
1463.010. The enforcement of court orders is recognized as an
important element of collections efforts. The prompt, efficient, and
effective collection of court-ordered fees, fines, forfeitures,
penalties, and assessments ensures the appropriate respect for court
orders. To provide for this prompt, efficient, and effective
collection:
(a) The Judicial Council shall adopt guidelines for a
comprehensive program concerning the collection of moneys owed for
fees, fines, forfeitures, penalties, and assessments imposed by court
order after considering the recommendations of the collaborative
court-county working group established pursuant to subdivision (b).
As part of its guidelines, the Judicial Council may establish
standard agreements for entities to provide collection services. As
part of its guidelines, the Judicial Council shall include provisions
that promote competition by and between entities in providing
collection services to courts and counties. The Judicial Council may
delegate to the Administrative Director of the Courts the
implementation of the aspects of this program to be carried out at
the state level.
(b) The Judicial Council shall establish a collaborative
court-county working group on collections. The California State
Association of Counties shall appoint eight members of the working
group. The Judicial Council shall appoint four court executives, two
judges, and two employees of the Administrative Office of the Courts
as members of the working group, and shall designate a chair of the
working group. The working group shall, among other activities,
survey courts and counties regarding current collection efforts and
evaluate a variety of methods to enhance future collections,
including, but not limited to, referring accounts to private agencies
for collection, develop a strategy for court and county cooperation
in collection plan discussions, consult with groups other than courts
and counties that are affected by collection programs, and evaluate
and make recommendations to the Judicial Council concerning current
and future collection methods.
(c) The courts and counties shall maintain the collection program
which was in place on January 1, 1996, unless otherwise agreed to by
the court and county. The program may wholly or partially be staffed
and operated within the court itself, may be wholly or partially
staffed and operated by the county, or may be wholly or partially
contracted with a third party. In carrying out this collection
program, each superior court and county shall develop a cooperative
plan to implement the Judicial Council guidelines. In the event that
a court and a county are unwilling or unable to enter into a
cooperative plan pursuant to this section, the court or the county
may request the continuation of negotiations with mediation
assistance as mutually agreed upon and provided by the Administrative
Director of the Courts and the California Association of Counties.
(d) Each superior court and county shall jointly report to the
Judicial Council, as provided by the Judicial Council and not more
than once a year, on the effectiveness of the cooperative superior
court and county collection program. The Judicial Council shall
report to the Legislature, as appropriate, on the effectiveness of
the program.
(e) The Judicial Council may, when the efficiency and
effectiveness of the collection process may be improved, facilitate a
joint collection program between superior courts, between counties,
or between superior courts and counties.
(f) The Judicial Council may establish, by court rule, a program
providing for the suspension and nonrenewal of a business and
professional license if the holder of the license has unpaid fees,
fines, forfeitures, penalties, and assessments imposed upon them
under a court order. The Judicial Council may provide that some or
all of the superior courts or counties participate in the program.
Any program established by the Judicial Council shall ensure that the
licensee receives adequate and appropriate notice of the proposed
suspension or nonrenewal of his or her license and has an opportunity
to contest the suspension or nonrenewal. The opportunity to contest
may not require a court hearing.
(g) Notwithstanding any other provision of law, the Judicial
Council, after consultation with the Franchise Tax Board with respect
to collections under Section 19280 of the Revenue and Taxation Code,
may provide for an amnesty program involving the collection of
outstanding fees, fines, forfeitures, penalties, and assessments,
applicable either statewide or within one or more counties. The
amnesty program shall provide that some or all of the interest or
collections costs imposed on outstanding fees, fines, forfeitures,
penalties, and assessments may be waived if the remaining amounts due
are paid within the amnesty period.
SEC. 273. Section 6245 of the Penal Code is amended to read:
6245. In submitting a proposal, a county's plan shall include at
least all of the following elements that meet standards established
by the board in its request for proposal, and demonstrate that its
program will have strong links to the community organizations
involved in providing those elements, and that those community
organizations have helped in designing the proposal:
(a) A rigorous program of substance abuse testing.
(b) A drug-free environment.
(c) Substance abuse treatment.
(d) Employment services.
(e) Basic education services.
(f) Mental health services and family counseling.
(g) A strong linkage to probation and parole.
SEC. 274. Section 11171 of the Penal Code is amended to read:
11171. (a) (1) The Legislature hereby finds and declares that
adequate protection of victims of child physical abuse or neglect has
been hampered by the lack of consistent and comprehensive medical
examinations.
(2) Enhancing examination procedures, documentation, and evidence
collection relating to child abuse or neglect will improve the
investigation and prosecution of child abuse or neglect as well as
other child protection efforts.
(b) The agency or agencies designated by the Director of Finance
pursuant to Section 13820 shall, in cooperation with the State
Department of Social Services, the Department of Justice, the
California Association of Crime Lab Directors, the California State
District Attorneys Association, the California State Sheriffs
Association, the California Peace Officers Association, the
California Medical Association, the California Police Chiefs'
Association, child advocates, the California Medical Training Center,
child protective services, and other appropriate experts, establish
medical forensic forms, instructions, and examination protocols for
victims of child physical abuse or neglect using as a model the form
and guidelines developed pursuant to Section 13823.5.
(c) The forms shall include, but not be limited to, a place for
notation concerning each of the following:
(1) Any notification of injuries or any report of suspected child
physical abuse or neglect to law enforcement authorities or children'
s protective services, in accordance with existing reporting
procedures.
(2) Addressing relevant consent issues, if indicated.
(3) The taking of a patient history of child physical abuse or
neglect that includes other relevant medical history.
(4) The performance of a physical examination for evidence of
child physical abuse or neglect.
(5) The collection or documentation of any physical evidence of
child physical abuse or neglect, including any recommended
photographic procedures.
(6) The collection of other medical or forensic specimens,
including drug ingestion or toxication, as indicated.
(7) Procedures for the preservation and disposition of evidence.
(8) Complete documentation of medical forensic exam findings with
recommendations for diagnostic studies, including blood tests and
X-rays.
(9) An assessment as to whether there are findings that indicate
physical abuse or neglect.
(d) The forms shall become part of the patient's medical record
pursuant to guidelines established by the advisory committee of the
agency or agencies designated by the Director of Finance pursuant to
Section 13820 and subject to the confidentiality laws pertaining to
the release of a medical forensic examination records.
(e) The forms shall be made accessible for use on the Internet.
SEC. 275. Section 11502 of the Penal Code is amended to read:
11502. (a) Criteria for selection of education, training, and
research programs for local public prosecutors and public defenders
shall be developed by the agency or agencies designated by the
Director of Finance pursuant to Section 13820 in consultation with an
advisory group entitled the Prosecutors and Public Defenders
Education and Training Advisory Committee.
(b) The Prosecutors and Public Defenders Education and Training
Advisory Committee shall be composed of six local public prosecutors
and six local public defender representatives, all of whom are
appointed by the executive director of the agency or agencies
designated by the Director of Finance pursuant to Section 13820, who
shall provide staff services to the advisory committee. In
appointing the members of the committee, the executive director shall
invite the Attorney General, the State Public Defender, the Speaker
of the Assembly, and the Senate President pro Tempore to participate
as ex officio members of the committee.
(c) The agency or agencies designated by the Director of Finance
pursuant to Section 13820, in consultation with the advisory
committee, shall develop specific guidelines including criteria for
selection of organizations to provide education, training, and
research services.
(d) In determining the equitable allocation of funds between
prosecution and defense functions, the agency or agencies designated
by the Director of Finance pursuant to Section 13820 and the advisory
committee shall give consideration to the amount of local government
expenditures on a statewide basis for the support of those
functions.
(e) The administration of the overall program shall be performed
by the agency or agencies designated by the Director of Finance
pursuant to Section 13820. The agency or agencies so designated may,
out of any appropriation for this program, expend an amount not to
exceed 7.5 percent for any fiscal year for those purposes.
(f) No funds appropriated pursuant to this title shall be used to
support a legislative advocate.
(g) To the extent necessary to meet the requirements of the State
Bar of California relating to certification of training for legal
specialists, the executive director shall ensure that, where
appropriate, all programs funded under this title are open to all
members of the State Bar of California. The program guidelines
established pursuant to subdivision (c) shall provide for the
reimbursement of costs for all participants deemed eligible by the
agency or agencies designated by the Director of Finance pursuant to
Section 13820, in conjunction with the Legal Training Advisory
Committee, by means of course attendance.
SEC. 276. Section 12021 of the Penal Code is amended to read:
12021. (a) (1) Any person who has been convicted of a felony
under the laws of the United States, of the State of California, or
any other state, government, or country, or of an offense enumerated
in subdivision (a), (b), or (d) of Section 12001.6, or who is
addicted to the use of any narcotic drug, who owns, purchases,
receives, or has in his or her possession or under his or her custody
or control any firearm is guilty of a felony.
(2) Any person who has two or more convictions for violating
paragraph (2) of subdivision (a) of Section 417 and who owns,
purchases, receives, or has in his or her possession or under his or
her custody or control any firearm is guilty of a felony.
(b) Notwithstanding subdivision (a), any person who has been
convicted of a felony or of an offense enumerated in Section 12001.6,
when that conviction results from certification by the juvenile
court for prosecution as an adult in an adult court under Section 707
of the Welfare and Institutions Code, who owns or has in his or her
possession or under his or her custody or control any firearm is
guilty of a felony.
(c) (1) Except as provided in subdivision (a) or paragraph (2) of
this subdivision, any person who has been convicted of a misdemeanor
violation of Section 71, 76, 136.1, 136.5, or 140, subdivision (d) of
Section 148, Section 171b, 171c, 171d, 186.28, 240, 241, 242, 243,
244.5, 245, 245.5, 246.3, 247, 273.5, 273.6, 417, 417.1, 417.2,
417.6, 422, 626.9, 646.9, 12023, or 12024, subdivision (b) or (d) of
Section 12034, Section 12040, subdivision (b) of Section 12072,
subdivision (a) of former Section 12100, Section 12220, 12320, or
12590, or Section 8100, 8101, or 8103 of the Welfare and Institutions
Code, any firearm-related offense pursuant to Sections 871.5 and
1001.5 of the Welfare and Institutions Code, or of the conduct
punished in paragraph (3) of subdivision (g) of Section 12072, and
who, within 10 years of the conviction, owns, purchases, receives, or
has in his or her possession or under his or her custody or control,
any firearm is guilty of a public offense, which shall be punishable
by imprisonment in a county jail not exceeding one year or in the
state prison, by a fine not exceeding one thousand dollars ($1,000),
or by both that imprisonment and fine. The court, on forms
prescribed by the Department of Justice, shall notify the department
of persons subject to this subdivision. However, the prohibition in
this paragraph may be reduced, eliminated, or conditioned as provided
in paragraph (2) or (3).
(2) Any person employed as a peace officer described in Section
830.1, 830.2, 830.31, 830.32, 830.33, or 830.5 whose employment or
livelihood is dependent on the ability to legally possess a firearm,
who is subject to the prohibition imposed by this subdivision because
of a conviction under Section 273.5, 273.6, or 646.9, may petition
the court only once for relief from this prohibition. The petition
shall be filed with the court in which the petitioner was sentenced.
If possible, the matter shall be heard before the same judge who
sentenced the petitioner. Upon filing the petition, the clerk of the
court shall set the hearing date and shall notify the petitioner and
the prosecuting attorney of the date of the hearing. Upon making
each of the following findings, the court may reduce or eliminate the
prohibition, impose conditions on reduction or elimination of the
prohibition, or otherwise grant relief from the prohibition as the
court deems appropriate:
(A) Finds by a preponderance of the evidence that the petitioner
is likely to use a firearm in a safe and lawful manner.
(B) Finds that the petitioner is not within a prohibited class as
specified in subdivision (a), (b), (d), (e), or (g) or Section
12021.1, and the court is not presented with any credible evidence
that the petitioner is a person described in Section 8100 or 8103 of
the Welfare and Institutions Code.
(C) Finds that the petitioner does not have a previous conviction
under this subdivision no matter when the prior conviction occurred.
In making its decision, the court shall consider the petitioner's
continued employment, the interest of justice, any relevant evidence,
and the totality of the circumstances. The court shall require, as
a condition of granting relief from the prohibition under this
section, that the petitioner agree to participate in counseling as
deemed appropriate by the court. Relief from the prohibition shall
not relieve any other person or entity from any liability that might
otherwise be imposed. It is the intent of the Legislature that
courts exercise broad discretion in fashioning appropriate relief
under this paragraph in cases in which relief is warranted. However,
nothing in this paragraph shall be construed to require courts to
grant relief to any particular petitioner. It is the intent of the
Legislature to permit persons who were convicted of an offense
specified in Section 273.5, 273.6, or 646.9 to seek relief from the
prohibition imposed by this subdivision.
(3) Any person who is subject to the prohibition imposed by this
subdivision because of a conviction of an offense prior to that
offense being added to paragraph (1) may petition the court only once
for relief from this prohibition. The petition shall be filed with
the court in which the petitioner was sentenced. If possible, the
matter shall be heard before the same judge that sentenced the
petitioner. Upon filing the petition, the clerk of the court shall
set the hearing date and notify the petitioner and the prosecuting
attorney of the date of the hearing. Upon making each of the
following findings, the court may reduce or eliminate the
prohibition, impose conditions on reduction or elimination of the
prohibition, or otherwise grant relief from the prohibition as the
court deems appropriate:
(A) Finds by a preponderance of the evidence that the petitioner
is likely to use a firearm in a safe and lawful manner.
(B) Finds that the petitioner is not within a prohibited class as
specified in subdivision (a), (b), (d), (e), or (g) or Section
12021.1, and the court is not presented with any credible evidence
that the petitioner is a person described in Section 8100 or 8103 of
the Welfare and Institutions Code.
(C) Finds that the petitioner does not have a previous conviction
under this subdivision, no matter when the prior conviction occurred.
In making its decision, the court may consider the interest of
justice, any relevant evidence, and the totality of the
circumstances. It is the intent of the Legislature that courts
exercise broad discretion in fashioning appropriate relief under this
paragraph in cases in which relief is warranted. However, nothing
in this paragraph shall be construed to require courts to grant
relief to any particular petitioner.
(4) Law enforcement officials who enforce the prohibition
specified in this subdivision against a person who has been granted
relief pursuant to paragraph (2) or (3) shall be immune from any
liability for false arrest arising from the enforcement of this
subdivision unless the person has in his or her possession a
certified copy of the court order that granted the person relief from
the prohibition. This immunity from liability shall not relieve any
person or entity from any other liability that might otherwise be
imposed.
(d) (1) Any person who, as an express condition of probation, is
prohibited or restricted from owning, possessing, controlling,
receiving, or purchasing a firearm and who owns, purchases, receives,
or has in his or her possession or under his or her custody or
control, any firearm but who is not subject to subdivision (a) or
(c), is guilty of a public offense, which shall be punishable by
imprisonment in a county jail not exceeding one year or in the state
prison, by a fine not exceeding one thousand dollars ($1,000), or by
both that imprisonment and fine.
The court, on forms provided by the Department of
Justice, shall notify the department of persons subject to this
subdivision. The notice shall include a copy of the order of
probation and a copy of any minute order or abstract reflecting the
order and conditions of probation.
(2) For any person who is subject to subdivision (a), (b), or (c),
the court shall, at the time judgment is imposed, provide on a form
supplied by the Department of Justice, a notice to the defendant
prohibited by this section from owning, purchasing, receiving,
possessing, or having under his or her custody or control, any
firearm. The notice shall inform the defendant of the prohibition
regarding firearms and include a form to facilitate the transfer of
firearms. Failure to provide the notice shall not be a defense to a
violation of this section.
(e) Any person who (1) is alleged to have committed an offense
listed in subdivision (b) of Section 707 of the Welfare and
Institutions Code, an offense described in subdivision (b) of Section
1203.073, or any offense enumerated in paragraph (1) of subdivision
(c), or any offense described in subdivision (a) of Section 12025,
subdivision (a) of Section 12031, or subdivision (a) of Section
12034, and (2) is subsequently adjudged a ward of the juvenile court
within the meaning of Section 602 of the Welfare and Institutions
Code because the person committed an offense listed in subdivision
(b) of Section 707 of the Welfare and Institutions Code, an offense
described in subdivision (b) of Section 1203.073, or any offense
enumerated in paragraph (1) of subdivision (c) shall not own, or have
in his or her possession or under his or her custody or control, any
firearm until the age of 30 years. A violation of this subdivision
shall be punishable by imprisonment in a county jail not exceeding
one year or in the state prison, by a fine not exceeding one thousand
dollars ($1,000), or by both that imprisonment and fine. The
juvenile court, on forms prescribed by the Department of Justice,
shall notify the department of persons subject to this subdivision.
Notwithstanding any other law, the forms required to be submitted to
the department pursuant to this subdivision may be used to determine
eligibility to acquire a firearm.
(f) Subdivision (a) shall not apply to a person who has been
convicted of a felony under the laws of the United States unless
either of the following criteria is satisfied:
(1) Conviction of a like offense under California law can only
result in imposition of felony punishment.
(2) The defendant was sentenced to a federal correctional facility
for more than 30 days, or received a fine of more than one thousand
dollars ($1,000), or received both punishments.
(g) (1) Every person who purchases or receives, or attempts to
purchase or receive, a firearm knowing that he or she is prohibited
from doing so by a temporary restraining order or injunction issued
pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure, a
protective order issued pursuant to Section 136.2 or 646.91 of this
code, or by a protective order issued pursuant to Section 15657.03 of
the Welfare and Institutions Code, is guilty of a public offense,
which shall be punishable by imprisonment in a county jail not
exceeding one year or in the state prison, by a fine not exceeding
one thousand dollars ($1,000), or by both that imprisonment and fine.
(2) Every person who owns or possesses a firearm knowing that he
or she is prohibited from doing so by a temporary restraining order
or injunction issued pursuant to Section 527.6 or 527.8 of the Code
of Civil Procedure, a protective order as defined in Section 6218 of
the Family Code, a protective order issued pursuant to Section 136.2
or 646.91 of this code, or by a protective order issued pursuant to
Section 15657.03 of the Welfare and Institutions Code, is guilty of a
public offense, which shall be punishable 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.
(3) Judicial Council shall provide notice on all protective orders
that the respondent is prohibited from owning, possessing,
purchasing, receiving, or attempting to purchase or receive a firearm
while the protective order is in effect. The order shall also state
that the firearm shall be relinquished to the local law enforcement
agency for that jurisdiction or sold to a licensed gun dealer, and
that proof of surrender or sale shall be filed within a specified
time of receipt of the order. The order shall state the penalties
for a violation of the prohibition. The order shall also state on
its face the expiration date for relinquishment.
(4) If probation is granted upon conviction of a violation of this
subdivision, the court shall impose probation consistent with the
provisions of Section 1203.097.
(h) (1) A violation of subdivision (a), (b), (c), (d), or (e) is
justifiable where all of the following conditions are met:
(A) The person found the firearm or took the firearm from a person
who was committing a crime against him or her.
(B) The person possessed the firearm no longer than was necessary
to deliver or transport the firearm to a law enforcement agency for
that agency's disposition according to law.
(C) If the firearm was transported to a law enforcement agency, it
was transported in accordance with paragraph (18) of subdivision (a)
of Section 12026.2.
(D) If the firearm is being transported to a law enforcement
agency, the person transporting the firearm has given prior notice to
the law enforcement agency that he or she is transporting the
firearm to the law enforcement agency for disposition according to
law.
(2) Upon the trial for violating subdivision (a), (b), (c), (d),
or (e), the trier of fact shall determine whether the defendant was
acting within the provisions of the exemption created by this
subdivision.
(3) The defendant has the burden of proving by a preponderance of
the evidence that he or she comes within the provisions of the
exemption created by this subdivision.
(i) Subject to available funding, the Attorney General, working
with the State Judicial Council, the California Alliance Against
Domestic Violence, prosecutors, and law enforcement, probation, and
parole officers, shall develop a protocol for the implementation of
the provisions of this section. The protocol shall be designed to
facilitate the enforcement of restrictions on firearm ownership,
including provisions for giving notice to defendants who are
restricted, provisions for informing those defendants of the
procedures by which defendants shall dispose of firearms when
required to do so, provisions explaining how defendants shall provide
proof of the lawful disposition of firearms, and provisions
explaining how defendants may obtain possession of seized firearms
when legally permitted to do so pursuant to this section or any other
provision of law. The protocol shall be completed on or before
January 1, 2005.
SEC. 277. Section 13864 of the Penal Code is amended to read:
13864. There is hereby created, in the agency or agencies
designated by the Director of Finance pursuant to Section 13820, the
Comprehensive Alcohol and Drug Prevention Education component of the
Suppression of Drug Abuse in Schools Program in public elementary
schools in grades 4 to 6, inclusive. Notwithstanding Section 13861
or any other provision in this code, all Comprehensive Alcohol and
Drug Prevention Education component funds made available to the
agency or agencies designated by the Director of Finance pursuant to
Section 13820 in accordance with the Classroom Instructional
Improvement and Accountability Act shall be administered by and
disbursed to county superintendents of schools in this state by the
executive director of the agency or agencies designated by the
Director of Finance pursuant to Section 13820. All applications for
that funding shall be reviewed and evaluated by the agency or
agencies designated by the Director of Finance pursuant to Section
13820, in consultation with the State Department of Alcohol and Drug
Programs and the State Department of Education.
(a) The executive director is authorized to allocate and award
funds to county department superintendents of schools for allocation
to individual school districts or to a consortium of two or more
school districts. Applications funded under this section shall
comply with the criteria, policies, and procedures established under
subdivision (b) of this section.
(b) As a condition of eligibility for the funding described in
this section, the school district or consortium of school districts
shall have entered into an agreement with a local law enforcement
agency to jointly implement a comprehensive alcohol and drug abuse
prevention, intervention, and suppression program developed by the
agency or agencies designated by the Director of Finance pursuant to
Section 13820, in consultation with the State Department of Alcohol
and Drug Programs and the State Department of Education, containing
all of the following components:
(1) A standardized age-appropriate curriculum designed for pupils
in grades 4 to 6, inclusive, specifically tailored and sensitive to
the socioeconomic and ethnic characteristics of the target pupil
population. Although new curricula shall not be required to be
developed, existing curricula may be modified and adapted to meet
local needs. The elements of the standardized comprehensive alcohol
and drug prevention education program curriculum shall be defined and
approved by the Governor's Policy Council on Drug and Alcohol Abuse,
as established by Executive Order # D-70-80.
(2) A planning process that shall include both assessment of the
school district's characteristics, resources and the extent of
problems related to juvenile drug abuse, and input from local law
enforcement agencies.
(3) A school district governing board policy that provides for a
coordinated intervention system that, at a minimum, includes
procedures for identification, intervention, and referral of at-risk
alcohol- and drug-involved youth, and identifies the roles and
responsibilities of law enforcement, school personnel, parents, and
pupils.
(4) Early intervention activities that include, but are not
limited to, the identification of pupils who are high risk or have
chronic drug abuse problems, assessment, and referral for appropriate
services, including ongoing support services.
(5) Parent education programs to initiate and maintain parental
involvement, with an emphasis for parents of at-risk pupils.
(6) Staff and in-service training programs, including both
in-depth training for the core team involved in providing program
services and general awareness training for all school faculty and
administrative, credentialed, and noncredentialed school personnel.
(7) In-service training programs for local law enforcement
officers.
(8) School, law enforcement, and community involvement to ensure
coordination of program services. Pursuant to that coordination, the
school district or districts and other local agencies are encouraged
to use a single community advisory committee or task force for drug,
alcohol, and tobacco abuse prevention programs, as an alternative to
the creation of a separate group for that purpose under each state
or federally funded program.
(c) The application of the county superintendent of schools shall
be submitted to the agency or agencies designated by the Director of
Finance pursuant to Section 13820. Funds made available to the
agency or agencies designated by the Director of Finance pursuant to
Section 13820 for allocation under this section are intended to
enhance, but shall not supplant, local funds that would, in the
absence of the Comprehensive Alcohol and Drug Prevention Education
component, be made available to prevent, intervene in, or suppress
drug abuse among schoolage children. For districts that are already
implementing a comprehensive drug abuse prevention program for pupils
in grades 4 to 6, inclusive, the county superintendent shall propose
the use of the funds for drug prevention activities in school grades
other than 4 to 6, inclusive, compatible with the program components
of this section. The expenditure of funds for that alternative
purpose shall be approved by the executive director.
(1) Unless otherwise authorized by the agency or agencies
designated by the Director of Finance pursuant to Section 13820, each
county superintendent of schools shall be the fiscal agent for any
Comprehensive Alcohol and Drug Prevention Education component award,
and shall be responsible for ensuring that each school district
within that county receives the allocation prescribed by the agency
or agencies designated by the Director of Finance pursuant to Section
13820. Each county superintendent shall develop a countywide plan
that complies with program guidelines and procedures established by
the agency or agencies designated by the Director of Finance pursuant
to Section 13820 pursuant to subdivision (d). A maximum of 5
percent of the county's allocation may be used for administrative
costs associated with the project.
(2) Each county superintendent of schools shall establish and
chair a local coordinating committee to assist the superintendent in
developing and implementing a countywide implementation plan. This
committee shall include the county drug administrator, law
enforcement executives, school district governing board members and
administrators, school faculty, parents, and drug prevention and
intervention program executives selected by the superintendent and
approved by the county board of supervisors.
(d) The Executive Director of the agency or agencies designated by
the Director of Finance pursuant to Section 13820, in consultation
with the State Department of Alcohol and Drug Programs and the State
Department of Education, shall prepare and issue guidelines and
procedures for the Comprehensive Alcohol and Drug Prevention
Education component consistent with this section.
(e) The Comprehensive Alcohol and Drug Prevention Education
component guidelines shall set forth the terms and conditions upon
which the agency or agencies designated by the Director of Finance
pursuant to Section 13820 is prepared to award grants of funds
pursuant to this section. The guidelines shall not constitute rules,
regulations, orders, or standards of general application.
(f) Funds awarded under the Comprehensive Alcohol and Drug
Prevention Education Program shall not be subject to Section 10318 of
the Public Contract Code.
(g) Funds available pursuant to Item 8100-111-001 and Provision 1
of Item 8100-001-001 of the Budget Act of 1989, or the successor
provision of the appropriate Budget Act, shall be allocated to
implement this section.
(h) The executive director of the agency or agencies designated by
the Director of Finance pursuant to Section 13820 shall collaborate,
to the extent possible, with other state agencies that administer
drug, alcohol, and tobacco abuse prevention education programs to
streamline and simplify the process whereby local educational
agencies apply for drug, alcohol, and tobacco education funding under
this section and under other state and federal programs. The agency
or agencies designated by the Director of Finance pursuant to
Section 13820, the State Department of Alcohol and Drug Programs, the
State Department of Education, and other state agencies, to the
extent possible, shall develop joint policies and collaborate
planning in the administration of drug, alcohol, and tobacco abuse
prevention education programs.
SEC. 278. Section 858 of the Probate Code is amended to read:
858. If a proceeding has been brought under this part by a
conservator on behalf of a conservatee, or by a guardian on behalf of
a minor, and the conservatee or minor dies during the pendency of
the proceeding, the personal representative of the conservatee or
minor's estate or other successor in interest may proceed with the
matter and the existing proceeding shall not be dismissed on account
of the death of the conservatee or minor.
SEC. 279. Section 6242 of the Probate Code is amended to read:
6242. (a) Except as specifically provided in this chapter, a
California statutory will shall include only the texts of the
property disposition clauses and the mandatory clauses as they exist
on the day the California statutory will is executed.
(b) Sections 6205, 6206, and 6227 apply to every California
statutory will, including those executed before January 1, 1985.
Section 6211 applies only to California statutory wills executed
after July 1, 1991.
(c) Notwithstanding Section 6222, and except as provided in
subdivision (b), a California statutory will is governed by the law
that applied prior to January 1, 1992, if the California statutory
will is executed on a form that (1) was prepared for use under former
Sections 56 to 56.14, inclusive, or former Sections 6200 to 6248,
inclusive, of the Probate Code, and (2) satisfied the requirements of
law that applied prior to January 1, 1992.
(d) A California statutory will does not fail to satisfy the
requirements of subdivision (a) merely because the will is executed
on a form that incorporates the mandatory clauses of Section 6241
that refer to former Section 1120.2. If the will incorporates the
mandatory clauses with a reference to former Section 1120.2, the
trustee has the powers listed in Article 2 (commencing with Section
16220) of Chapter 2 of Part 4 of Division 9.
SEC. 280. Section 19403 of the Probate Code is amended to read:
19403. Nothing in this chapter affects the rights of a purchaser
or encumbrancer of property in good faith and for value from a person
who is personally liable under this section.
SEC. 281. Section 20114.5 of the Probate Code is amended to read:
20114.5. (a) As used in this section:
(1) A reference to Section 4980A of the Internal Revenue Code
means Section 4980A of the federal Internal Revenue Code of 1986 as
amended (26 U.S.C. Sec. 4980A) and also means former Section 4981A of
the federal Internal Revenue Code of 1986.
(2) "Excess retirement accumulation" has the meaning given it in
paragraph (3) of subsection (d) of Section 4980A.
(b) If the federal estate tax is increased under subsection (d) of
Section 4980A of the Internal Revenue Code, the amount of the
increase shall be a charge against the persons who receive the excess
retirement accumulation that gives rise to the increase, and shall
be equitably prorated among all persons who receive interests in
qualified employer plans and individual retirement plans to which the
excess retirement accumulation is attributable.
SEC. 282. Section 21320 of the Probate Code is amended to read:
21320. (a) If an instrument containing a no contest clause is or
has become irrevocable, a beneficiary may apply to the court for a
determination of whether a particular motion, petition, or other act
by the beneficiary, including, but not limited to, creditor claims
under Part 4 (commencing with Section 9000) of Division 7, Part 8
(commencing with Section 19000) of Division 9, an action pursuant to
Section 21305, and an action under Part 7 (commencing with Section
21700) of Division 11, would be a contest within the terms of the no
contest clause.
(b) A no contest clause is not enforceable against a beneficiary
to the extent an application under subdivision (a) is limited to the
procedure and purpose described in subdivision (a).
(c) A determination under this section of whether a proposed
motion, petition, or other act by the beneficiary violates a no
contest clause may not be made if a determination of the merits of
the motion, petition, or other act by the beneficiary is required.
(d) A determination of whether Section 21306 or 21307 would apply
in a particular case may not be made under this section.
SEC. 283. Section 6106.5 of the Public Contract Code is amended to
read:
6106.5. (a) "State agency," as used in this section, means those
departments defined in Section 10106 of the Public Contract Code.
(b) "Contractor," as used in this section, means "Firm,"
"Architectural, landscape architectural, engineering, environmental,
and land surveying services," "Construction project management," and
"Environmental services" as defined in Section 4525 of the Government
Code.
(c) State agencies shall include a provision in solicitations and
in contracts, if the estimated amount to be retained exceeds ten
thousand dollars ($10,000), and the retention continues for a period
of 60 days beyond the completion of phased services, to permit, upon
written request and the expense of the contractor, the payment of
retentions earned directly to a state or federally chartered bank in
this state, as the escrow agent. The contractor may direct the
investment of the payments into securities, pursuant to paragraph
(d), and the contractor shall receive the interest earned on the
investments. Upon satisfactory completion of the contract, the
contractor shall receive from the escrow agent all securities,
interest, and payments received by the escrow agent from the owner,
pursuant to the terms of this section. State agencies, relative to
contracts entered into prior to the enactment of this section, upon
written request of the contractor, and subject to the approval of the
state agency, may utilize the provisions of this section.
(d) Securities eligible for investment under this section shall
include those listed in Section 16430 of the Government Code,
interest-bearing demand deposit accounts, or any other investment
mutually agreed to by the contractor and the state agency.
(e) (1) Any contractor who elects to receive interest on moneys
withheld in retention by a state agency shall, at the request of any
subcontractor, make that option available to the subcontractor
regarding any moneys withheld in retention by the contractor from the
subcontractor. If the contractor elects to receive interest on any
moneys withheld in retention by a state agency, then the
subcontractor shall receive the identical rate of interest received
by the contractor on any retention moneys withheld from the
subcontractor by the contractor, less any actual pro rata costs
associated with administering and calculating that interest. In the
event that the interest rate is a fluctuating rate, the rate for the
subcontractor shall be determined by calculating the interest rate
paid during the time that retentions were withheld from the
subcontractor. If the contractor elects to substitute securities in
lieu of retention, then, by mutual consent of the contractor and
subcontractor, the subcontractor may substitute securities in
exchange for the release of moneys held in retention by the
contractor.
(2) This subdivision shall apply only to those subcontractors
performing more than 5 percent of the contractor's total fee.
(3) No contractor shall require any subcontractor to waive any
provision of this section.
(f) An escrow agreement used pursuant to this section shall be
null, void, and unenforceable unless it is substantially similar to
the following form:
ESCROW AGREEMENT FOR SECURITY DEPOSITS
This Escrow Agreement is made and entered into by and between
_____________________________________________________________
whose address is ____________________________________________
hereinafter called "owner,"__________________________________
whose address is ____________________________________________
hereinafter called "contractor," and ________________________
whose address is ____________________________________________
hereinafter called "escrow agent."
(1) Pursuant to Section 6106.5 of the Public Contract Code of the
State of California, upon written request of the contractor, the
owner shall make payments of retention earnings required to be
withheld by the owner pursuant to the professional consulting
services agreement entered into between the owner and contractor for
____ in the amount of ____ dated ____ hereafter referred to as the
"contract."
(2) When the owner makes payment of retentions earned directly to
the escrow agent, the escrow agent shall hold them for the benefit of
the contractor until such time as the escrow created under this
contract is terminated. The contractor may direct the investment of
the payments into securities pursuant to Section 6106.5(d) of the
Public Contract Code. All terms and conditions of this agreement and
the rights and responsibilities of the parties shall be equally
applicable and binding when the owner pays the escrow agent directly.
(3) The contractor shall be responsible for paying all fees for
the expenses incurred by the escrow agent in administering the escrow
account. These expenses and payment terms shall be determined by the
contractor and escrow agent.
(4) The contractor shall have the right to withdraw all or any
part of the principal or interest in the escrow account only by
written notice to the escrow agent accompanied by written
authorization from the owner to the escrow agent that the owner
consents to the withdrawal of the amount sought to be withdrawn by
contractor.
(5) The owner shall have a right to draw upon the escrow account
in the event of default by the contractor. Upon seven days' written
notice to the escrow agent from the owner of the default, the escrow
agent shall immediately distribute the cash as instructed by the
owner.
(6) Upon receipt of written notification from the owner certifying
that the contract is final and complete, and that the contractor has
complied with all requirements and procedures applicable to the
contract, the escrow agent shall release to the contractor all
deposits and interest on deposits less escrow fees and charges of the
escrow account. The escrow shall be closed immediately upon
disbursement of all moneys on deposit and payments of fees and
charges.
(7) The escrow agent shall rely on the written notifications from
the owner and the contractor pursuant to Sections (1) to (6),
inclusive, of this agreement and the owner and contractor shall hold
the escrow agent harmless from the escrow agent's release,
conversion, and disbursement of the securities and interest as set
forth above.
(8) The names of the persons who are authorized to give written
notice or to receive written notice on behalf of the owner and on
behalf of the contractor in connection with the foregoing, and
exemplars of their respective signatures are as follows:
On behalf of the owner: On behalf of the contractor:
_________________________ ____________________________
Title Title
_________________________ ____________________________
Name Name
_________________________ ____________________________
Address Address
_________________________ ____________________________
On behalf of the escrow agent:
______________________________
Title
______________________________
Name
______________________________
Signature
______________________________
Address
______________________________
At the time the escrow account is opened, the owner and contractor
shall deliver to the escrow agent a fully executed counterpart of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by
their proper officers on the date first set forth above.
Owner Contractor
_____________________________ ________________________________
Title Title
____________________________ _________________________________
Name Name
_____________________________ ________________________________
Signature Signature
_____________________________ ________________________________
SEC. 284. Section 10295.3 of the Public Contract Code is amended
to read:
10295.3. (a) (1) Notwithstanding any other provision of law, no
state agency may enter into any contract for the acquisition of goods
or services in the amount of one hundred thousand dollars ($100,000)
or more with a contractor who, in the provision of benefits,
discriminates between employees with spouses and employees with
domestic partners, or discriminates between the domestic partners and
spouses of those employees.
(2) For purposes of this section, "contract" includes contracts
with a cumulative amount of one hundred thousand dollars ($100,000)
or more per contractor in each fiscal year.
(3) For purposes of this section, "domestic partner" means one of
two persons who has filed a declaration of domestic partnership with
the Secretary of State pursuant to Division 2.5 (commencing with
Section 297) of the Family Code.
(4) (A) Subject to subparagraph (B), this section does not apply
to any contracts executed or amended prior to January 1, 2007, or to
bid packages advertised and made available to the public, or any
competitive or sealed bids received by the state, prior to January 1,
2007, unless and until those contracts or property contracts are
amended after December 31, 2006, and would otherwise be subject to
this section.
(B) If a duration of a contract executed or amended prior to
January 1, 2007, is for more than one year going beyond January 1,
2008, this section shall apply to the contract on January 1, 2008.
(5) The requirements of this section shall apply only to those
portions of a contractor's operations that occur under any of the
following conditions:
(A) Within the state.
(B) On real property outside the state if the property is owned by
the state or if the state has a right to occupy the property, and if
the contractor's presence at that location is connected to a
contract with the state.
(C) Elsewhere in the United States where work related to a state
contract is being performed.
(b) Contractors shall treat as confidential to the maximum extent
allowed by law or by the requirement of the contractor's insurance
provider, any request by an employee or applicant for employment for
domestic partner or spousal benefits or any documentation of
eligibility for domestic partner or spousal benefits submitted by an
employee or applicant for employment.
(c) After taking all reasonable measures to find a contractor that
complies with this section as determined by the state agency, the
requirements of this section may be waived under any of the following
circumstances:
(1) Whenever there is only one prospective contractor willing to
enter into a specific contract with the state agency.
(2) If the contract is necessary to respond to an emergency, as
determined by the state agency, that endangers the public health,
welfare, or safety, or the contract is necessary for the provision of
essential services, and no entity that complies with the
requirements of this section capable of responding to the emergency
is immediately available.
(3) Where the requirements of this section violate, or are
inconsistent with, the terms or conditions of a grant, subvention, or
agreement, provided that a good faith attempt has been made by the
agency to change the terms or conditions of any grant, subvention, or
agreement to authorize application of this section.
(4) Where the contractor is providing wholesale or bulk water,
power, or natural gas, the conveyance or transmission of the same, or
ancillary services, as required for assuring reliable services in
accordance with good utility practice, provided that the purchase of
the same may not practically be accomplished through the standard
competitive bidding procedures, and further provided that this
exemption does not apply to contractors providing direct retail
services to end users.
(d) (1) If there is a difference in the cost to provide a certain
benefit to a domestic partner or spouse, the contractor is not deemed
to be in violation of this section so long as it permits the
employee to pay any excess costs.
(2) The contractor is not deemed to discriminate in the provision
of benefits if the contractor, in providing the benefits, pays the
actual costs incurred in obtaining the benefit.
(3) In the event a contractor is unable to provide a certain
benefit, despite taking reasonable measures to do so, the contractor
may not be deemed to discriminate in the provision of benefits.
(4) For any contracts executed or amended on or after July 1,
2004, and prior to January 1, 2007, and to bid packages advertised
and made available to the public, or any competitive or sealed bids
received by the state, on or after July 1, 2004, and prior to January
1, 2007, unless and until those contracts or bid packages are
amended after June 30, 2004, but prior to January 1, 2007, and would
otherwise be subject to this section, a contractor may require an
employee to pay the costs of providing additional benefits that are
offered to comply with this section if an employee elects to have the
additional benefits. This paragraph shall not be construed to
permit a contractor to require an employee to cover the costs of
providing any benefits, which have otherwise been provided to all
employees regardless of marital or domestic partner status.
(e) A contractor is not deemed to be in violation of this section
if the contractor does any of the following:
(1) Offers the same benefits to employees with domestic partners
and employees with spouses and offers the same benefits to domestic
partners and spouses of employees.
(2) Elects to provide the same benefits to individuals that are
provided to employees' spouses and employees' domestic partners.
(3) Elects to provide benefits on a basis unrelated to an employee'
s marital status or domestic partnership status, including, but not
limited to, allowing each employee to designate a legally domiciled
member of the employee's household as being eligible for benefits.
(4) Elects not to provide benefits to employees based on their
marital status or domestic partnership status, or elects not to
provide benefits to employees' spouses and to employees' domestic
partners.
(f) (1) Every contract subject to this chapter shall contain a
statement by which the contractor certifies that the contractor is in
compliance with this section.
(2) The department or other contracting agency shall enforce this
section pursuant to its existing enforcement powers.
(3) (A) If a contractor falsely certifies that it is in compliance
with this section, the contract with that contractor shall be
subject to Article 9 (commencing with Section 10420), unless, within
a time period specified by the department or other contracting
agency, the contractor provides to the department or agency proof
that it has complied, or is in the process of complying, with this
section.
(B) The application of the remedies or penalties contained in
Article 9 (commencing with Section 10420) to a contract subject to
this chapter shall not preclude the application of any existing
remedies otherwise available to the department or other contracting
agency under its existing enforcement powers.
(g) Nothing in this section is intended to regulate the
contracting practices of any local jurisdiction.
(h) This section shall be construed so as not to conflict with
applicable federal laws, rules, or regulations. In the event that a
court or agency of competent jurisdiction holds that federal law,
rule, or regulation invalidates any clause, sentence, paragraph, or
section of this code or the application thereof to any person or
circumstances, it is the intent of the state that the court or agency
sever that clause, sentence, paragraph, or section so that the
remainder of this section shall remain in effect.
SEC. 285. Section 2755 of the Public Resources Code is amended to
read:
2755. The board shall adopt regulations that establish state
policy for the reclamation of mined lands in accordance with Article
1 (commencing with Section 2710) of this chapter and pursuant to
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code.
SEC. 286. Section 2802 of the Public Resources Code is amended to
read:
2802. (a) The department shall develop jointly with the United
States Geological Survey a prototype earthquake prediction system
along the central San Andreas fault near the City of Parkfield.
(b) The system shall include a dense cluster of seismic and
crustal deformation instrumentation capable of monitoring geophysical
and geochemical phenomena associated with earthquakes in the region.
These data shall be analyzed continuously to determine if
precursory anomalies can be identified with sufficient certainty to
make a short-term prediction. The department shall not duplicate any
of the ongoing efforts of the United States Geological Survey or any
public or private college or university in the development of this
system.
(c) In meeting its obligations under this chapter, the department
shall develop, in cooperation with the United States Geological
Survey, a plan for completion of the Parkfield instrumentation
network. The plan shall provide for all of the following:
(1) Augmentation of monitoring instruments with the goal of
detecting precursors of the Parkfield characteristic earthquake.
(2) Operation by the department of a remote data review station in
Sacramento which will provide state scientists with data from the
Parkfield prototype earthquake prediction system and other data, as
required, to advise the Office of Emergency Services of the
occurrence of precursors and verification of the predicted event.
(3) Advising the United States Geological Survey, the Office of
Emergency Services, the Seismic Safety Commission, and the California
Earthquake Prediction Evaluation Council, regarding the department's
review of Parkfield data.
(d) On January 1, 1987, the department shall issue a progress
report to the Governor, the Legislature, and the Seismic Safety
Commission. An annual progress report shall be made each year
thereafter. The project shall terminate on January 1, 1992, unless
extended by statute.
SEC. 287. Section 3305 of the Public Resources Code is amended to
read:
3305. At the hearing all persons interested are entitled to be
heard and may present testimony either oral or written. All
witnesses shall be sworn, and a transcript of the proceedings shall
be kept by a stenographic reporter. All the provisions of this
chapter in reference to the subpoenaing of witnesses and the taking
of depositions are applicable to the hearing before the supervisor.
On the request of the supervisor, a hearing officer in the Office of
Administrative Hearings may assist and rule upon legal matters, but
such officer shall not make the determination specified in Section
3306.
SEC. 288. Section 3324 of the Public Resources Code is amended to
read:
3324. At hearings all persons interested are entitled to be heard
and present evidence, both oral and written. All such persons shall
be sworn, and a transcript of the proceedings shall be kept. The
procedure to be followed by the supervisor with respect to the
administering of oaths, applying for subpoenas for witnesses and for
the production of books, records, well logs, production records, and
other documents, the taking of depositions, and the penalties
attaching for failure to comply with any order of the supervisor or
subpoena issued, shall be in the manner as in this division provided.
On the request of the supervisor, a hearing officer in the Office
of Administrative Hearings may be assigned to assist in conducting
the proceedings as provided in Section 11370.3 of the Government
Code. The officer, however, shall not make the determination
specified in Section 3321.
The provisions of Section 3234 prohibiting the giving of testimony
as to the contents of records on file shall not apply to this
article. All of these records shall be available and may be received
in evidence in any public hearing or in any judicial proceeding
herein provided for.
SEC. 289. Section 5079.50 of the Public Resources Code is amended
to read:
5079.50. The office shall award grants to public agencies and
nonprofit organizations to improve the management of California's
historical resources that, because of natural events or human
activities, have suffered impairment or loss of historic integrity.
Grants made pursuant to this section shall not be available to
acquire public facilities, except to the extent the acquisition is
incidental to the historical resource management project.
SEC. 290. Section 14509.3 of the Public Resources Code is amended
to read:
14509.3. "Cullet" means scrap glass that is derived from
postfilled food, drink, or beverage container glass produced or
imported for sale in the state.
SEC. 291. Section 14552.5 of the Public Resources Code is amended
to read:
14552.5. (a) The department shall supply all certified processors
with a standardized rejection form that shall include, but not be
limited to, the names of the parties rejecting the postfilled
beverage container material, the date of the rejections, the reasons
for the rejections, the amount of rejected material, and a detailed
accounting of the steps taken by the processor and container
manufacturer to avert landfilling or disposal of the material, as
required by subdivision (c) of Section 14552.51.
(b) Every container manufacturer shall fill out the standardized
rejection form specified in subdivision (a) whenever that container
manufacturer rejects a load of redeemed beverage container materials
physically delivered to the manufacturer's place of business and
offered for sale by a certified processor. The rejection form shall
be filled out by the container manufacturer at the time of the
rejection and immediately given to the certified processor for
submittal to the department. Any container manufacturer who refuses
to fill out the standardized rejection form required by this
subdivision is in violation of this division and is subject to the
fines and penalties in Sections 14591 and 14591.1.
(c) If a processor has made a good faith effort, as determined by
the department, to locate a willing purchaser and is unsuccessful,
the processor may fill out the standardized rejection form specified
in subdivision (a) and submit it to the department. The processor
rejection form shall include, but is not limited to, the name of the
processor, the container manufacturers and other potential purchasers
contacted, a detailed accounting of the methods used to contact the
potential buyers, the date of the rejections, the reasons given for
the rejections, the amount of postfilled beverage container material
rejected, and any other steps taken to avert landfilling or disposal
of the material.
(d) If a container manufacturer rejects a load of postfilled
containers by telephone, written correspondence of any kind, or other
similar method, the container manufacturer shall, in a manner
prescribed by the department, keep accurate logbooks of the offer of
loads by the certified processor, and make that logbook available for
inspection by the department upon demand. The logbook shall
contain, but is not limited to, the same information required in the
rejection form pursuant to subdivision (a).
(e) The standardized rejection form specified in subdivision (a)
shall be submitted to the department by the certified processor with
the written request to dispose of the redeemed material submitted
pursuant to Section 14552.51. This material shall not be disposed of
without a written authorization to do so by the department pursuant
to Section 14552.51.
(f) Nothing in this section shall be interpreted to lessen
certified processors' and container manufacturers' responsibilities
relating to beverage container recycling, or diminish in any way the
department's authority to carry out the intent and goals of this
division.
SEC. 292. Section 14581 of the Public Resources Code is amended to
read:
14581. (a) Subject to the availability of funds, and pursuant to
subdivision (c), the department shall expend the moneys set aside in
the fund, pursuant to subdivision (c) of Section 14580 for the
purposes of this section:
(1) On and after July 1, 2002, twenty-six million five hundred
thousand dollars ($26,500,000) shall be expended annually for the
payment of handling fees required pursuant to Section 14585.
(2) Fifteen million dollars ($15,000,000) shall be expended
annually for payments for curbside programs and neighborhood dropoff
programs pursuant to Section 14549.6.
(3) (A) Fifteen million dollars ($15,000,000), plus the
proportional share of the cost-of-living adjustment, as provided in
subdivision (b), shall be expended annually in the form of grants for
beverage container litter reduction programs and recycling programs
issued to either of the following:
(i) Certified community conservation corps that were in existence
on September 30, 1999, or that are formed subsequent to that date,
that are designated by a city or a city and county to perform litter
abatement, recycling, and related activities, if the city or the city
and county has a population, as determined by the most recent
census, of more than 250,000 persons.
(ii) Community conservation corps that are designated by a county
to perform litter abatement, recycling, and related activities, and
are certified by the California Conservation Corps as having operated
for a minimum of two years and as meeting all other criteria of
Section 14507.5.
(B) Any grants provided pursuant to this paragraph shall not
comprise more than 75 percent of the annual budget of a community
conservation corps.
(4) (A) Ten million five hundred thousand dollars ($10,500,000)
may be expended annually for payments of five thousand dollars
($5,000) to cities and ten thousand dollars ($10,000) for payments to
counties for beverage container recycling and litter cleanup
activities, or the department may calculate the payments to counties
and cities on a per capita basis, and may pay whichever amount is
greater, for those activities.
(B) Eligible activities for the use of these funds may include,
but are not necessarily limited to, support for new or existing
curbside recycling programs, neighborhood dropoff recycling programs,
public education promoting beverage container recycling, litter
prevention, and cleanup, cooperative regional efforts among two or
more cities or counties, or both, or other beverage container
recycling programs.
(C) These funds may not be used for activities unrelated to
beverage container recycling or litter reduction.
(D) To receive these funds, a city, county, or city and county
shall fill out and return a funding request form to the Department of
Conservation. The form shall specify the beverage container
recycling or litter reduction activities for which the funds will be
used.
(E) The Department of Conservation shall annually prepare and
distribute a funding request form to each city, county, or city and
county. The form shall specify the amount of beverage container
recycling and litter cleanup funds for which the jurisdiction is
eligible. The form shall not exceed one double-sided page in length,
and may be submitted electronically. If a city, county, or city and
county does not return the funding request form within 90 days of
receipt of the form from the department, the city, county, or city
and county is not eligible to receive the funds for that funding
cycle.
(F) For the purposes of this paragraph, per capita population
shall be based on the population of the incorporated area of a city
or city and county and the unincorporated area of a county. The
department may withhold payment to any city, county, or city and
county that has prohibited the siting of a supermarket site, caused a
supermarket site to close its business, or adopted a land use policy
that restricts or prohibits the siting of a supermarket site within
its jurisdiction.
(5) (A) One million five hundred thousand dollars ($1,500,000) may
be expended annually in the form of grants for beverage container
recycling and litter reduction programs.
(B) Up to a total of six million eight hundred forty thousand
dollars ($6,840,000) shall be paid to the City of San Diego, between
January 1, 2000, and January 1, 2004, for a curbside recycling
program conducted pursuant to Section 14549.7.
(6) (A) The department shall expend the amount necessary to pay
the processing payment and supplemental processing payment
established pursuant to Sections 14575 and 14575.5 and pay processing
fee rebates pursuant to Section 14575.2. The department shall
establish separate processing fee accounts in the fund for each
beverage container material type for which a processing payment and
processing fee is calculated pursuant to Section 14575, or for which
a processing payment is calculated pursuant to Section 14575 and a
voluntary artificial scrap value is calculated pursuant to Section
14575.1, into which account shall be deposited all of the following:
(i) All amounts paid as processing fees for each beverage
container material type pursuant to Section 14575.
(ii) Funds equal to the difference between the amount in clause
(i) and the amount of the processing payments established in
subdivision (b) of Section 14575, and adjusted pursuant to paragraphs
(2) and (3) of subdivision (c) of, and subdivision (f) of, Section
14575, to reduce the processing fee to the level provided in
subdivision (f) of Section 14575, or to reflect the agreement by a
willing purchaser to pay a voluntary artificial scrap value pursuant
to Section 14575.1.
(iii) Funds equal to an amount sufficient to pay the total amount
of the supplemental processing payments established pursuant to
Section 14575.5.
(B) Notwithstanding Section 13340 of the Government Code, the
money in each processing fee account is hereby continuously
appropriated to the department for expenditure without regard to
fiscal years, for purposes of making processing payments and
supplemental processing payments, and reducing processing fees,
pursuant to Sections 14575 and 14575.5 and paying processing fee
rebates pursuant to Section 14575.2.
(7) Up to five million dollars ($5,000,000) may be annually
expended by the department for the purposes of undertaking a
statewide public education and information campaign aimed at
promoting increased recycling of beverage containers.
(8) Up to three million dollars ($3,000,000) shall be expended
annually for the payment of quality glass incentive payments pursuant
to Section 14549.1.
(9) (A) Three hundred thousand dollars ($300,000) shall be
expended annually by the department, until January 1, 2005, pursuant
to a cooperative agreement entered into between the department and
Keep California Beautiful, a nonprofit 501(c)(3) organization
chartered by the State of California in 1990, for the purpose of
conducting statewide public education campaigns aimed at preventing
and cleaning up beverage containers and related litter. The
campaigns shall include, but not be limited to, coordination of Keep
California Beautiful month.
(B) Prior to making an expenditure pursuant to this paragraph, the
department shall enter into a cooperative agreement with Keep
California Beautiful.
(C) As part of the cooperative agreement, Keep California
Beautiful shall provide the department with an annual campaign plan
and budget, and a report of previous year campaign activities.
(10) Up to ten million dollars ($10,000,000) may be expended
annually by the department, until January 1, 2007, to issue grants
for recycling market development and expansion-related activities
aimed at increasing the recycling of beverage containers, including,
but not limited to, the following:
(A) Research and development of collecting, sorting, processing,
cleaning, or otherwise upgrading the market value of recycled
beverage containers.
(B) Identification, development, and expansion of markets for
recycled beverage containers.
(C) Research and development for products manufactured using
recycled beverage containers.
(D) Payments to California manufacturers who recycle beverage
containers that are marked by resin type identification code "3," "4,"
"5," "6," or "7," pursuant to Section 18015.
(11) Up to ten million dollars ($10,000,000) may be transferred on
a one-time basis by the department to the Recycling Infrastructure
Loan Guarantee Account, for expenditure pursuant to Section 14582.
(b) The fifteen million dollars ($15,000,000) that is set aside
pursuant to paragraph (3) of subdivision (a) is a base amount that
the department shall adjust annually to reflect any increases or
decreases in the cost of living, as measured by the Department of
Labor, or a successor agency, of the federal government.
(c) (1) The department shall review all funds on a quarterly basis
to ensure that there are adequate funds to make the payments
specified in this section and the processing fee reductions required
pursuant to Section 14575.
(2) If the department determines, pursuant to a review made
pursuant to paragraph (1), that there may be inadequate funds to pay
the payments required by this section and the processing fee
reductions required pursuant to Section 14575, the department shall
immediately notify the appropriate policy and fiscal committees of
the Legislature regarding the inadequacy.
(3) On or before 180 days after the notice is sent pursuant to
paragraph (2), the department may reduce or eliminate expenditures,
or both, from the funds as necessary, according to the procedure set
forth in subdivision (d).
(d) If the department determines that there are insufficient funds
to make the payments specified pursuant to this section and Section
14575, the department shall reduce all payments proportionally.
(e) Prior to making an expenditure pursuant to paragraph (7) of
subdivision (a), the department shall convene an advisory committee
consisting of representatives of the beverage industry, beverage
container manufacturers, environmental organizations, the recycling
industry, nonprofit organizations, and retailers, to advise the
department on the most cost-effective and efficient method of the
expenditure of the funds for that education and information campaign.
SEC. 293. Section 30610.3 of the Public Resources Code is amended
to read:
30610.3. (a) Whenever the commission determines (1) that public
access opportunities through an existing subdivided area, which has
less than 75 percent of the subdivided lots built upon, or an area
proposed to be subdivided are not adequate to meet the public access
requirements of this division and (2) that individual owners of
vacant lots in those areas do not have the legal authority to comply
with public access requirements as a condition of securing a coastal
development permit for the reason that some other person or persons
has legal authority, the commission shall implement public access
requirements as provided in this section.
(b) The commission, on its own motion or at the request of an
affected property owner, shall identify an area as meeting the
criteria specified in subdivision (a). After an area has been
identified, the commission shall, after appropriate public hearings
adopt a specific public access program for the area and shall request
that the State Coastal Conservancy, established pursuant to Division
21 (commencing with Section 31000), implement the program. The
access program shall include, but not be limited to, the
identification of specific land areas and view corridors to be used
for public access, any facilities or other development deemed
appropriate, the commission's recommendations regarding the manner in
which public access will be managed, and the types of permitted
public uses. The State Coastal Conservancy shall, pursuant to its
authority, implement the public access program.
(c) The State Coastal Conservancy shall be authorized to expend
funds when appropriated from the Coastal Access Account for the
purchase of lands and view easements and to pay for any development
needed to carry out the public access program specified in
subdivision (a). Not more than 5 percent of the amount of funds
necessary to carry out each public access program may be provided as
a grant to the State Coastal Conservancy for its administrative costs
incurred in carrying out the access program.
(d) The State Coastal Conservancy may enter into any agreement it
deems necessary and appropriate with any state or local public agency
or with a private association authorized to perform those functions
for the operation and maintenance of any access facilities acquired
or developed pursuant to this section.
(e) Every person receiving a coastal development permit or a
certificate of exemption for development on any vacant lot within an
area designated pursuant to this section shall, prior to the
commencement of construction, pay to the commission, for deposit in
the Coastal Access Account, an "in-lieu" public access fee. The
amount of each fee shall be determined by dividing the cost of
acquiring the specified lands and view easements by the total number
of lots within the identified area. The proportion of the
acquisition cost that can be allocated to lots built upon pursuant to
permits that were not subject to public access conditions under this
division or the California Coastal Zone Conservation Act of 1972
(former Division 18 (commencing with Section 27000)) shall be paid
from the Coastal Access Account. An "in-lieu" public access fee may
be in the form of an appropriate dedication, in which event the lots
to which the dedication can be credited shall not be counted toward
the total number of lots used in arriving at the "in-lieu" public
access fee share for each remaining lot.
(f) For purposes of determining the acquisition costs specified in
subdivision (e), the State Coastal Conservancy may, in the absence
of a fixed price agreed to by both the State Coastal Conservancy and
the seller, specify an estimated cost based on a formal appraisal of
the value of the interest proposed to be acquired. The appraisal
shall be conducted by an independent appraiser under contract with
the State Coastal Conservancy and shall be completed within 120 days
of the adoption of the specific public access program by the
commission pursuant to subdivision (b). The appraisal shall be
deemed suitable for all purposes of the Property Acquisition Law
(Part 11 (commencing with Section 15850 of the Government Code)).
For every year following public acquisition of the interests in land
specified as part of a public access program and prior to payment of
the required "in-lieu" fee, a carrying cost factor equal to 5 percent
of the share attributable to each lot shall be added to any unpaid
"in-lieu" public access fee, provided, however, that a lot owner may
pay the "in-lieu" public access fee at any time after public
acquisition in order to avoid payment of the carrying cost factor.
(g) No provision of this section may be applied within any portion
of the unincorporated area in the County of Sonoma, commonly known
as the Sea Ranch.
SEC. 294. The heading of Article 1 (commencing with Section 32630)
of Division 22.9 of the Public Resources Code is amended to read:
CHAPTER 1. GENERAL PROVISIONS AND DEFINITIONS
SEC. 295. The heading of Article 2 (commencing with Section 32633)
of Division 22.9 of the Public Resources Code is amended to read:
CHAPTER 2. THE SAN DIEGO RIVER CONSERVANCY
SEC. 296. The heading of Article 3 (commencing with Section 32639)
of Division 22.9 of the Public Resources Code is amended to read:
CHAPTER 3. POWERS AND DUTIES
SEC. 297. The heading of Article 4 (commencing with Section 32657)
of Division 22.9 of the Public Resources Code is amended to read:
CHAPTER 4. SAN DIEGO RIVER CONSERVANCY FUND
SEC. 298. The heading of Article 5 (commencing with Section 32661)
of Division 22.9 of the Public Resources Code is amended to read:
CHAPTER 5. REPEAL
SEC. 299. Section 36725 of the Public Resources Code is amended to
read:
36725. (a) The Fish and Game Commission may designate, delete, or
modify state marine recreational management areas established by the
commission for hunting purposes, state marine reserves, and state
marine conservation areas. The Fish and Game Commission shall
consult with, and secure concurrence from, the State Parks and
Recreation Commission prior to modifying or deleting state marine
reserves and state marine conservation areas designated by the State
Parks and Recreation Commission. The Fish and Game Commission shall
not delete or modify state marine recreational management areas
designated by the State Parks and Recreation Commission.
(b) The State Parks and Recreation Commission may designate,
delete, or modify state marine reserves, state marine parks, state
marine conservation areas, state marine cultural preservation areas,
and state marine recreational management areas. The State Parks and
Recreation Commission may not designate, delete, or modify a state
marine reserve, state marine park, or state marine conservation area
without the concurrence of the Fish and Game Commission on any
proposed restrictions upon, or change in, the use of living marine
resources.
(c) If an unresolved conflict exists between the Fish and Game
Commission and the State Parks and Recreation Commission regarding a
state marine reserve, state marine park, or state marine conservation
area, the Secretary of the Resources Agency may reconcile the
conflict.
(d) The State Water Resources Control Board may designate, delete,
or modify state water quality protection areas.
(e) The Fish and Game Commission, State Parks and Recreation
Commission, and State Water Resources Control Board each may restrict
or prohibit recreational uses and other human activities in the MMAs
for the benefit of the resources therein, except in the case of
restrictions on the use of living marine resources. Pursuant to this
section, and consistent with Section 2860 of the Fish and Game Code,
the Fish and Game Commission may regulate commercial and
recreational fishing and any other taking of marine species in MMAs.
(f) (1) The Department of Fish and Game may manage state marine
reserves, state marine conservation areas, state marine recreational
management areas established for hunting purposes and, if requested
by the State Water Resources Control Board, state water quality
protection areas.
(2) The Department of Parks and Recreation may manage state marine
reserves, state marine parks, state marine conservation areas, state
marine cultural preservation areas, and state marine recreational
management areas. Department authority over units within the state
park system shall extend to units of the state MMAs system that are
managed by the department.
(3) The State Water Resources Control Board and the California
regional water quality control boards may take appropriate actions to
protect state water quality protection areas. The State Water
Resources Control Board may request the Department of Fish and Game
or the Department of Parks and Recreation to take appropriate
management action.
SEC. 300. Section 40000 of the Public Resources Code is amended to
read:
40000. The Legislature hereby finds and declares all of the
following:
(a) In 1988, Californians disposed of over 38 million tons of
solid waste, an amount that is expected to grow if existing solid
waste policies are continued. This amounts to more than 1,500 pounds
of waste per person living in the state, more than any other state
in the country and over twice the per-capita rate of most other
industrialized countries.
(b) Over 90 percent of California's solid waste currently is
disposed of in landfills, some of which pose a threat to groundwater,
air quality, and public health.
(c) While California will exhaust most of its remaining landfill
space by the mid-1990s, there presently is no coherent state policy
to ensure that the state's solid waste is managed in an effective and
environmentally sound manner for the remainder of the 20th century
and beyond.
(d) The amount of solid waste generated in the state coupled with
diminishing landfill space and potential adverse environmental
impacts from landfilling constitutes an urgent need for state and
local agencies to enact and implement an aggressive new integrated
waste management program.
(e) The reduction, recycling, or reuse of solid waste generated in
the state will, in addition to preserving landfill capacity in
California, serve to conserve water, energy, and other natural
resources within this state, and to protect the state's environment.
SEC. 301. Section 41732 of the Public Resources Code is amended to
read:
41732. (a) City, county, and regional agency nondisposal facility
elements prepared pursuant to Section 41730, 41731, or 41750.1, as
the case may be, shall include a description of any new solid waste
facilities and the expansion of existing solid waste facilities that
will be needed to implement the jurisdiction's source reduction and
recycling element and to thereby meet the diversion requirements of
Section 41780. The nondisposal facility element may include the
identification of specific locations or general areas for new solid
waste facilities that will be needed to implement the jurisdiction's
source reduction and recycling element.
(b) In complying with the requirements of subdivision (a), the
jurisdiction shall utilize the pertinent information that is
available to it at the time that the nondisposal facility element is
prepared.
SEC. 302. Section 42330 of the Public Resources Code is amended to
read:
42330. (a) The board shall grant a waiver from the postconsumer
material content requirement of subdivision (a) of Section 42310, but
not from any other requirement of Section 42310, if the board finds
one or more of the following:
(1) The rigid plastic packaging containers cannot meet the
postconsumer material requirements of subdivision (a) of Section
42310 and remain in compliance with applicable provisions of
regulations adopted by the Food and Drug Administration or other
state or federal laws or regulations.
(2) It is technologically infeasible to use rigid plastic
packaging containers that achieve the postconsumer material
requirement of subdivision (a) of Section 42310.
(b) The board shall grant a waiver from all of the requirements of
Section 42310 if the board finds either of the following:
(1) Less than 60 percent of the single-family homes in the state
on and after January 1, 1994, have curbside collection programs that
include beverage container recycling.
(2) At least 50 percent, by number, of a manufacturer's rigid
plastic packaging containers sold or offered for sale in the state in
the current calendar year achieve the postconsumer material
requirements of subdivision (a) of Section 42310 and all of the
manufacturer's rigid plastic packaging containers will comply with
the requirements of Section 42310 on or before January 1, 1996.
(c) The board shall grant a one-year waiver from all of the
requirements of Section 42310 for products packaged in rigid plastic
packaging containers that are introduced and sold in this state after
January 1, 1995.
SEC. 303. Section 42463 of the Public Resources Code is amended to
read:
42463. For the purposes of this chapter, the following terms have
the following meanings, unless the context clearly requires
otherwise:
(a) "Account" means the Electronic Waste Recovery and Recycling
Account created in the Integrated Waste Management Fund under Section
42476.
(b) "Authorized collector" means any of the following:
(1) A city, county, or district that collects covered electronic
devices.
(2) A person or entity that is required or authorized by a city,
county, or district to collect covered electronic devices pursuant to
the terms of a contract, license, permit, or other written
authorization.
(3) A nonprofit organization that collects or accepts covered
electronic devices.
(4) A manufacturer or agent of the manufacturer that collects,
consolidates, and transports covered electronic devices for recycling
from consumers, businesses, institutions, and other generators.
(5) Any entity that collects, handles, consolidates, and
transports covered electronic devices and has filed a notification
with the department pursuant to Article 7 (commencing with Section
66273.80) of Chapter 23 of Division 4.5 of Title 22 of the California
Code of Regulations.
(c) "Board" means the California Integrated Waste Management
Board.
(d) (1) "Consumer" means a purchaser or owner of a covered
electronic device. "Consumer" also includes a business, corporation,
limited partnership, nonprofit organization, or governmental entity,
but does not include an entity involved in a wholesale transaction
between a distributor and retailer.
(2) (A) "Consumer" does not include a manufacturer who purchases
specialty or medical electronic equipment that is a covered
electronic device.
(B) For purposes of this paragraph, "medical electronic equipment"
includes, but is not limited to, radiotherapy equipment, cardiology
equipment, dialysis equipment, pulmonary ventilators, nuclear
medicine equipment, laboratory equipment for in-vitro diagnosis,
analyzers, and freezers.
(C) For purposes of this paragraph, "specialty electronic
equipment" includes, but is not limited to, smoke detectors, heating
regulators, and thermostats.
(e) "Department" means the Department of Toxic Substances Control.
(f) (1) "Covered electronic device" means a cathode ray tube,
cathode ray tube device, flat panel screen, or any other similar
video display device with a screen size that is greater than four
inches in size measured diagonally and which the department
determines, when discarded or disposed, would be a hazardous waste
pursuant to Chapter 6.5 (commencing with Section 25100) of Division
20 of the Health and Safety Code.
(2) "Covered electronic device" does not include an automobile or
a large piece of commercial or industrial equipment, including, but
not limited to, commercial medical equipment, that contains a cathode
ray tube, cathode ray tube device, flat panel screen, or other
similar video display device that is contained within, and is not
separate from, the larger piece of industrial or commercial
equipment.
(g) "Covered electronic waste" or "covered e-waste" means a
covered electronic device that is discarded or disposed.
(h) "Covered electronic waste recycling fee" or "covered e-waste
recycling fee" means the fee imposed pursuant to Article 3
(commencing with Section 42464).
(i) "Covered electronic waste recycler" or "covered e-waste
recycler" means any of the following:
(1) A person who engages in the manual or mechanical separation of
covered electronic devices to recover components and commodities
contained therein for the purpose of reuse or recycling.
(2) A person who changes the physical or chemical composition of a
covered electronic device, in accordance with the requirements of
Chapter 6.5 (commencing with Section 25100) of Division 20 of the
Health and Safety Code and the regulations adopted pursuant to that
chapter, by deconstructing, size reduction, crushing, cutting,
sawing, compacting, shredding, or refining for purposes of
segregating components, for purposes of recovering or recycling those
components, and who arranges for the transport of those components
to an end user.
(3) A manufacturer who meets any conditions established by this
chapter and Chapter 6.5 (commencing with Section 25100) of Division
20 of the Health and Safety Code for the collection or recycling of
covered electronic waste.
(j) "Electronic waste recovery payment" means an amount
established and paid by the board pursuant to Section 42477.
(k) "Electronic waste recycling payment" means a payment made by
the board to an authorized collector of covered electronic waste
pursuant to Section 42477.
(l) "Electronic waste recycling payment" means an amount
established and paid by the board pursuant to Section 42478.
(m) "Hazardous material" has the same meaning as defined in
Section 25501 of the Health and Safety Code.
(n) "Manufacturer" means either of the following:
(1) A person who manufacturers a covered electronic device sold in
this state.
(2) A person who sells a covered electronic device in this state
under a person's brand name.
(o) "Retailer" means a person who sells a covered electronic
device in the state to a consumer but who did not manufacture the
device. "Retailer" includes a manufacturer of a covered electronic
device who sells that covered electronic device directly to a
consumer through any means, including, but not limited to,
transactions conducted through sales outlets, catalogs, or the
Internet, or any other, similar electronic means, but does not
include a sale that is a wholesale transaction with a distributor or
retailer.
(p) (1) "Sell" or "sale" means any transfer for consideration of
title or of the right to use, by lease or sales contract, including,
but not limited to, transactions conducted through sales outlets,
catalogs, or the Internet, or any other, similar electronic means,
but does not include a wholesale transaction with a distributor or a
retailer.
(2) For purposes of this subdivision and subdivision (o),
"distributor" means a person who sells a covered electronic device to
a retailer.
SEC. 304. Section 42475.2 of the Public Resources Code is amended
to read:
42475.2. (a) The board and the department may adopt regulations
to implement this chapter as emergency regulations.
(b) The emergency regulations adopted pursuant to this chapter
shall be adopted by the board and the department in accordance with
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code, and for the purposes of that
chapter, including Section 11349.6 of the Government Code, the
adoption of these regulations is an emergency and shall be considered
by the Office of Administrative Law as necessary for the immediate
preservation of the public peace, health, and safety, and general
welfare. Notwithstanding Chapter 3.5 (commencing with Section 11340)
of Part 1 of Division 3 of Title 2 of the Government Code, any
emergency regulations adopted by the board and the department
pursuant to this section shall be filed with, but not be repealed by,
the Office of Administrative Law and shall remain in effect for a
period of two years or until revised by the board or the department,
whichever occurs sooner.
SEC. 305. Section 45000 of the Public Resources Code is amended to
read:
45000. (a) Except as provided in subdivision (b), the enforcement
agency may issue an administrative order requiring the owner or
operator of a solid waste facility to take corrective action as
necessary to abate a nuisance, or to protect human health and safety
or the environment.
(b) An administrative order shall not be issued for any minor
violation that is corrected immediately in the presence of the
inspector. Immediate compliance in that manner shall be noted in the
inspection report.
(c) The enforcement agency or the board may contract for
corrective action after an order issued pursuant to subdivision (a)
becomes final and the owner or operator fails to comply with the
order by the date specified in the order.
(d) If an enforcement agency or the board expends any funds
pursuant to subdivision (b), the owner or operator of the solid waste
facility shall reimburse the enforcement agency or the board for the
amount expended, including, but not limited to, a reasonable amount
for contract administration, and an amount equal to the interest that
would have been earned on the expended funds. The amount expended
shall be recoverable in a civil action by the Attorney General, upon
request of the local enforcement agency or the board.
(e) Any contract for corrective action entered into by the board
is exempt from approval by the Department of General Services
pursuant to Section 10295 of the Public Contract Code.
(f) Any corrective action shall incorporate by reference any
applicable waste discharge requirements issued by the state water
board or a regional water board, and shall be consistent with all
applicable water quality control plans adopted pursuant to Section
13170 of, and Article 3 (commencing with Section 13240) of Chapter 4
of Division 7 of, the Water Code, and state policies for water
quality control adopted pursuant to Article 3 (commencing with
Section 13140) of Chapter 3 of Division 7 of the Water Code, existing
at the time of the corrective action or proposed corrective action.
SEC. 306. Section 45010 of the Public Resources Code is amended to
read:
45010. The Legislature hereby finds and declares as follows:
(a) It is the intent of the Legislature that administrative civil
penalties should be imposed on the operators of solid waste
facilities in a judicious manner and should only be imposed after all
feasible efforts have been made by enforcement agencies to provide
proper notice of violations to alleged violators as well as a
reasonable opportunity to bring solid waste facilities into
compliance with this division.
(b) Any funds collected through the imposition of civil penalties
pursuant to this article shall not be deposited in the General Fund
of the local enforcement agency, but instead shall be deposited in a
segregated account and used exclusively for the purpose of bringing a
solid waste facility into compliance with this division or to
remediate an abandoned solid waste disposal site.
(c) Any civil penalties paid to the board pursuant to this article
shall be deposited in the Solid Waste Disposal Site Cleanup Trust
Fund created pursuant to Section 48027.
SEC. 307. Section 50000 of the Public Resources Code is amended to
read:
50000. (a) Until an integrated waste management plan has been
approved by the California Integrated Waste Management Board pursuant
to Division 30 (commencing with Section 40000), no person shall
establish a new solid waste facility or transformation facility or
expand an existing solid waste facility or transformation facility
that will result in a significant increase in the amount of solid
waste handled at the facility without a certification by the
enforcement agency that one of the following has occurred:
(1) The facility is identified and described in, or found to
conform with, a county solid waste management plan that was in
compliance with statutes and regulations in existence on December 31,
1989, adopted pursuant to former Title 7.3 (commencing with Section
66700) of the Government Code as that former statute read on December
31, 1989. The conformance finding with that plan shall be in
accordance with the procedure for a finding of conformance that was
set forth in the plan prior to January 1, 1990.
(2) The facility is identified and described in the most recent
county solid waste management plan that has been approved by the
county and by a majority of the cities within the county that contain
a majority of the population of the incorporated area of the county,
except in those counties that have only two cities, in which case,
the plan has been approved by the county and by the city that
contains a majority of the population of the incorporated area of the
county.
(3) Pursuant
to the procedures in subdivision (b), the facility has been approved
by the county and by a majority of the cities within the county that
contain a majority of the population of the incorporated area of the
county, except in those counties that have only two cities, in which
case, the facility has been approved by the county and by the city
that contains a majority of the population of the incorporated area
of the county.
(4) The facility is a material recovery facility and the site
identification and description of the facility have been submitted to
the task force created pursuant to Section 40950 for review and
comment, pursuant to the procedures set forth in subdivision (c).
For purposes of this paragraph, "material recovery facility" means a
transfer station that is designed to, and, as a condition of its
permit, shall, recover for reuse or recycling at least 15 percent of
the total volume of material received by the facility.
(5) The facility is identified and described in the countywide
siting element that has been approved pursuant to Section 41721.
(b) (1) The review and approval of a solid waste facility or
transformation facility that has not been identified or described in
a county solid waste management plan shall be initiated by submittal
by the person or agency proposing the facility of a site
identification and description to the county board of supervisors.
(2) The county shall submit the site identification and
description to each city within the county within 20 days from the
date that the site identification and description is submitted to the
county board of supervisors. The county and each city shall approve
or disapprove by resolution the site identification and description
within 90 days from the date that the site identification and
description are initially submitted to the county or city. Each city
shall notify the county board of supervisors of its decision within
that 90-day period. If the county or a city fails to approve or
disapprove the site identification and description within 90 days,
the city or county shall be deemed to have approved the site
identification and description as submitted.
(3) If a city or county disapproves the site identification and
description, the city or county shall mail notice of its decision by
first-class mail to the person or agency requesting the approval
within 10 days of the disapproval by the city or county, stating its
reasons for the disapproval.
(4) No county or city shall disapprove a proposed site
identification and description for a new solid waste facility or
transformation facility or an expanded solid waste facility or
transformation facility that will result in a significant increase in
the amount of solid waste handled at the facility unless it
determines, based upon substantial evidence in the record, that there
will be one or more significant adverse impacts within its
boundaries from the proposed project.
(5) Within 45 days from the date of a decision by a city or county
to disapprove a site identification and description, or a decision
by the board not to concur in the issuance of a permit pursuant to
Section 44009, any person may file with the superior court a writ of
mandate for review of the decision. The evidence before the court
shall consist of the record before the city or county that
disapproved the site identification and description or the record
before the board in its determination not to concur in issuance of
the permit. Section 1094.5 of the Code of Civil Procedure shall
govern the proceedings conducted pursuant to this subdivision.
(c) To initiate the review and comment by the task force required
by paragraph (4) of subdivision (a) and subdivision (d), the person
or agency proposing the facility shall submit the site identification
and description of the facility to the task force. Within 90 days
after the site identification and description are submitted to the
task force, the task force shall meet and comment on the facility in
writing. Those comments shall include, but are not limited to, the
relationship between the proposed new or expanded material recovery
facility and the requirements of Section 41780. The task force shall
transmit those comments to the applicant, to the county, and to all
of the cities in the county.
(d) On or before February 1, 1991, each county, by vote of the
board of supervisors and the majority of the cities in the county
containing a majority of the population of the incorporated area of
the county, except in those counties that have only two cities, in
which case the vote is subject to approval of the city that contains
a majority of the population of the incorporated area of the county,
shall adopt two resolutions after holding a public hearing. One
resolution shall address solid waste transfer facilities that are
designed to, and, as a condition of their permits, shall, recover for
reuse or recycling less than 15 percent of the total volume of
material received by the facility and that serve more than one
jurisdiction. The second resolution shall address solid waste
transfer facilities that are designed to, and, as a condition of
their permits, shall, recover for reuse or recycling less than 15
percent of the total volume of material received by the facility and
that serve only one jurisdiction. These resolutions shall specify
whether the facilities shall be subject to the review and approval
process described in subdivision (b) or the review and comment
process described in subdivision (c). If the resolutions required by
this subdivision are not adopted on or before February 1, 1991,
those facilities shall be subject to the review process described in
subdivision (c).
For purposes of this subdivision, a facility serves only one
jurisdiction if it serves only one city, only the unincorporated area
of one county, or only one city and county.
SEC. 308. Section 71210 of the Public Resources Code is amended to
read:
71210. (a) The commission, in consultation with the board, the
United States Coast Guard, and a technical advisory group made up of
interested persons, including, but not limited to, shipping and port
representatives, shall sponsor pilot programs for the purpose of
evaluating alternatives for treating and otherwise managing ballast
water. The goal of this effort shall be the reduction or elimination
of the discharge of nonindigenous species into the coastal waters of
the state or into waters that may impact coastal waters of the
state. Whenever possible, the pilot programs shall include funding
from federal grants and appropriations, vendor funding, and state
bond funds, including, but not limited to, bond funds from the Water
Security, Clean Drinking Water, Coastal and Beach Protection Act of
2002. Priority shall be given to projects to test and evaluate
treatment technologies that can be used to prevent the introduction
and spread of nonindigenous aquatic species into coastal waters of
the state by ship-mediated vectors.
(b) The commission shall provide biennial summaries to the
Legislature and the public, beginning on or before January 31, 2005,
of the results of the pilot programs conducted pursuant to this
section. These summary reports shall include, but not be limited to,
a description of the projects, the relative effectiveness of the
technologies examined in minimizing the discharge of nonindigenous
species, and the costs of implementing the technologies.
SEC. 309. Section 280.5 of the Public Utilities Code is amended to
read:
280.5. (a) Of the revenues from fees collected pursuant to
Section 14666.8 of the Government Code after the operative date of
this section, except for revenues from fees from a lease agreement
for access to Department of Transportation property or a lease
agreement existing prior to the operative date of the section, 15
percent shall be available, upon appropriation by the Legislature,
for the purpose of addressing the state's digital divide.
(b) Revenues described in subdivision (a) shall be deposited in
the Digital Divide Account, which is hereby established in the
California Teleconnect Fund Administrative Committee Fund established
pursuant to Section 270, to be used only for digital divide pilot
projects. Not more than 5 percent of the revenues described in
subdivision (a) may be used to pay the costs incurred in connection
with the administration of digital divide pilot projects by the
commission.
(c) (1) The Digital Divide Grant Program is hereby established
subject to the availability of funding pursuant to this section. The
commission may not implement the grant program until the commission
projects that at least five hundred thousand dollars ($500,000) will
be available in the Digital Divide Account during the calendar year
following implementation, based on money collected pursuant to
Section 14666.8 of the Government Code.
(2) The commission shall provide grants pursuant to this
subdivision on a competitive basis subject to criteria to be
established by the commission and in a way that disburses the funds
widely, including urban and rural areas. Grants shall be awarded to
community-based nonprofit organizations that are exempt from taxation
under Section 501(c)(3) of the Internal Revenue Code for the purpose
of funding community technology programs.
(3) Recipients of grants pursuant to this subdivision shall report
to the commission annually on the effectiveness of the grant
program.
(4) The commission shall report to the Legislature and the
Governor annually on the effectiveness of the program administered
pursuant to this subdivision.
(d) For purposes of this section, "community technology programs"
means a program that is engaged in diffusing technology in local
communities and training local communities in the use of technology,
especially local communities that otherwise would have no access or
limited access to the Internet and other technologies.
(e) For purposes of this section, "digital divide projects" means
community technology programs involved in activities that include,
but are not limited to, the following:
(1) Providing open access to and opportunities for training in
technology.
(2) Developing content relevant to the interests and wants of the
local community.
(3) Preparing youth for opportunities in the new economy through
multimedia training and skills.
(4) Harnessing technology for e-government services.
SEC. 310. Section 353.2 of the Public Utilities Code is amended to
read:
353.2. (a) As used in this article, "ultra-clean and low-emission
distributed generation" means any electric generation technology
that meets both of the following criteria:
(1) Commences initial operation between January 1, 2003, and
December 31, 2008.
(2) Produces zero emissions during its operation or produces
emissions during its operation that are equal to or less than the
2007 State Air Resources Board emission limits for distributed
generation, except that technologies operating by combustion must
operate in a combined heat and power application with a 60-percent
system efficiency on a higher heating value.
(b) In establishing rates and fees, the commission may consider
energy efficiency and emissions performance to encourage early
compliance with air quality standards established by the State Air
Resources Board for ultra-clean and low-emission distributed
generation.
SEC. 311. Section 372 of the Public Utilities Code is amended to
read:
372. (a) It is the policy of the state to encourage and support
the development of cogeneration as an efficient, environmentally
beneficial, competitive energy resource that will enhance the
reliability of local generation supply, and promote local business
growth. Subject to the specific conditions provided in this section,
the commission shall determine the applicability to customers of
uneconomic costs as specified in Sections 367, 368, 375, and 376.
Consistent with this state policy, the commission shall provide that
these costs shall not apply to any of the following:
(1) To load served onsite or under an over the fence arrangement
by a nonmobile self-cogeneration or cogeneration facility that was
operational on or before December 20, 1995, or by increases in the
capacity of a facility to the extent that the increased capacity was
constructed by an entity holding an ownership interest in or
operating the facility and does not exceed 120 percent of the
installed capacity as of December 20, 1995, provided that prior to
June 30, 2000, the costs shall apply to over the fence arrangements
entered into after December 20, 1995, between unaffiliated parties.
For the purposes of this subdivision, "affiliated" means any person
or entity that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common
control with another specified entity. "Control" means either of the
following:
(A) The possession, directly or indirectly, of the power to direct
or to cause the direction of the management or policies of a person
or entity, whether through an ownership, beneficial, contractual, or
equitable interest.
(B) Direct or indirect ownership of at least 25 percent of an
entity, whether through an ownership, beneficial, or equitable
interest.
(2) To load served by onsite or under an over the fence
arrangement by a nonmobile self-cogeneration or cogeneration facility
for which the customer was committed to construction as of December
20, 1995, provided that the facility was substantially operational on
or before January 1, 1998, or by increases in the capacity of a
facility to the extent that the increased capacity was constructed by
an entity holding an ownership interest in or operating the facility
and does not exceed 120 percent of the installed capacity as of
January 1, 1998, provided that prior to June 30, 2000, the costs
shall apply to over the fence arrangements entered into after
December 20, 1995, between unaffiliated parties.
(3) To load served by existing, new, or portable emergency
generation equipment used to serve the customer's load requirements
during periods when utility service is unavailable, provided the
emergency generation is not operated in parallel with the integrated
electric grid, except on a momentary parallel basis.
(4) After June 30, 2000, to any load served onsite or under an
over the fence arrangement by any nonmobile self-cogeneration or
cogeneration facility.
(b) Further, consistent with state policy, with respect to
self-cogeneration or cogeneration deferral agreements, the commission
shall do the following:
(1) Provide that a utility shall execute a final self-cogeneration
or cogeneration deferral agreement with any customer that, on or
before December 20, 1995, had executed a letter of intent (or similar
documentation) to enter into the agreement with the utility,
provided that the final agreement shall be consistent with the terms
and conditions set forth in the letter of intent and the commission
shall review and approve the final agreement.
(2) Provide that a customer that holds a self-cogeneration or
cogeneration deferral agreement that was in place on or before
December 20, 1995, or that was executed pursuant to paragraph (1) in
the event the agreement expires, or is terminated, may do any of the
following:
(A) Continue through December 31, 2001, to receive utility service
at the rate and under terms and conditions applicable to the
customer under the deferral agreement that, as executed, includes an
allocation of uneconomic costs consistent with subdivision (e) of
Section 367.
(B) Engage in a direct transaction for the purchase of electricity
and pay uneconomic costs consistent with Sections 367, 368, 375, and
376.
(C) Construct a self-cogeneration or cogeneration facility of
approximately the same capacity as the facility previously deferred,
provided that the costs provided in Sections 367, 368, 375, and 376
shall apply consistent with subdivision (e) of Section 367, unless
otherwise authorized by the commission pursuant to subdivision (c).
(3) Subject to the firewall described in subdivision (e) of
Section 367, provide that the ratemaking treatment for
self-cogeneration or cogeneration deferral agreements executed prior
to December 20, 1995, or executed pursuant to paragraph (1) shall be
consistent with the ratemaking treatment for the contracts approved
before January 1995.
(c) The commission shall authorize, within 60 days of the receipt
of a joint application from the serving utility and one or more
interested parties, applicability conditions as follows:
(1) The costs identified in Sections 367, 368, 375, and 376 shall
not, prior to June 30, 2000, apply to load served onsite by a
nonmobile self-cogeneration or cogeneration facility that became
operational on or after December 20, 1995.
(2) The costs identified in Sections 367, 368, 375, and 376 shall
not, prior to June 30, 2000, apply to any load served under over the
fence arrangements entered into after December 20, 1995, between
unaffiliated entities.
(d) For the purposes of this subdivision, all onsite or over the
fence arrangements shall be consistent with Section 218 as it existed
on December 20, 1995.
(e) To facilitate the development of new microcogeneration
applications, electrical corporations may apply to the commission for
a financing order to finance the transition costs to be recovered
from customers employing the applications.
(f) To encourage the continued development, installation, and
interconnection of clean and efficient self-generation and
cogeneration resources, to improve system reliability for consumers
by retaining existing generation and encouraging new generation to
connect to the electric grid, and to increase self-sufficiency of
consumers of electricity through the deployment of self-generation
and cogeneration, both of the following shall occur:
(1) The commission and the Electricity Oversight Board shall
determine if any policy or action undertaken by the Independent
System Operator, directly or indirectly, unreasonably discourages the
connection of existing self-generation or cogeneration or new
self-generation or cogeneration to the grid.
(2) If the commission and the Electricity Oversight Board find
that any policy or action of the Independent System Operator
unreasonably discourages the connection of existing self-generation
or cogeneration or new self-generation or cogeneration to the grid,
the commission and the Electricity Oversight Board shall undertake
all necessary efforts to revise, mitigate, or eliminate that policy
or action of the Independent System Operator.
SEC. 312. Section 374 of the Public Utilities Code is amended to
read:
374. (a) In recognition of statutory authority and past
investments existing as of December 20, 1995, and subject to the
firewall specified in subdivision (e) of Section 367, the obligation
to pay the uneconomic costs identified in Sections 367, 368, 375, and
376 shall not apply to the following:
(1) One hundred ten megawatts of load served by irrigation
districts, as hereafter allocated by this paragraph:
(A) The 110 megawatts of load shall be allocated among the service
territories of the three largest electrical corporations in the
ratio of the number of irrigation districts in the service territory
of each utility to the total number of irrigation districts in the
service territories of all three utilities.
(B) The total amount of load allocated to each utility service
area shall be phased in over five years beginning January 1, 1997, so
that one-fifth of the allocation is allocated in each of the five
years. Any allocation that remains unused at the end of any year
shall be carried over to the succeeding year and added to the
allocation for that year.
(C) The load allocated to each utility service territory pursuant
to subparagraph (A) shall be further allocated among the respective
irrigation districts within that service territory by the California
Energy Resources Conservation and Development Commission. An
individual irrigation district requesting an allocation shall submit
to the commission by January 31, 1997, detailed plans that show the
load that it serves or will serve and for which it intends to utilize
the allocation within the timeframe requested. These plans shall
include specific information on the irrigation districts'
organization for electric distribution, contracts, financing and
engineering plans for capital facilities, as well as detailed
information about the loads to be served, and shall not be less than
eight megawatts or more than 40 megawatts, provided, however, that
any portion of the 110 megawatts that remains unallocated may be
reallocated to projects without regard to the 40 megawatts
limitation. In making an allocation among irrigation districts, the
Energy Resources Conservation and Development Commission shall assess
the viability of each submission and whether it can be accomplished
in the timeframe proposed. The Energy Resources Conservation and
Development Commission shall have the discretion to allocate the load
covered by this section in a manner that best ensures its usage
within the allocation period.
(D) At least 50 percent of each year's allocation to a district
shall be applied to that portion of load that is used to power pumps
for agricultural purposes.
(E) Any load pursuant to this subdivision shall be served by
distribution facilities owned by, or leased to, the district in
question.
(F) Any load allocated pursuant to paragraph (1) shall be located
within the boundaries of the affected irrigation district, or within
the boundaries specified in an applicable service territory boundary
agreement between an electrical corporation and the affected
irrigation district; additionally, the provisions of subparagraph (C)
of paragraph (1) shall be applicable to any load within the Counties
of Stanislaus or San Joaquin, or both, served by any irrigation
district that is currently serving or will be serving retail
customers.
(2) Seventy-five megawatts of load served by the Merced Irrigation
District hereafter prescribed in this paragraph:
(A) The total allocation provided by this paragraph shall be
phased in over five years beginning January 1, 1997, so that
one-fifth of the allocation is received in each of the five years.
Any allocation that remains unused at the end of any year shall be
carried over to the succeeding year and added to the allocation for
that year.
(B) Any load to which the provision of this paragraph is
applicable shall be served by distribution facilities owned by, or
leased to, Merced Irrigation District.
(C) A load to which the provisions of this paragraph are
applicable shall be located within the boundaries of Merced
Irrigation District as those boundaries existed on December 20, 1995,
together with the territory of Castle Air Force Base that was
located outside of the district on that date.
(D) The total allocation provided by this paragraph shall be
phased in over five years beginning January 1, 1997, with the
exception of load already being served by the district as of June 1,
1996, which shall be deducted from the total allocation and shall not
be subject to the costs provided in Sections 367, 368, 375, and 376.
(3) To loads served by irrigation districts, water districts,
water storage districts, municipal utility districts, and other water
agencies that, on December 20, 1995, were members of the Southern
San Joaquin Valley Power Authority, or the Eastside Power Authority,
provided, however, that this paragraph shall be applicable only to
that portion of each district or agency's load that is used to power
pumps that are owned by that district or agency as of December 20,
1995, or replacements thereof, and is being used to pump water for
district purposes. The rates applicable to these districts and
agencies shall be adjusted as of January 1, 1997.
(4) The provisions of this subdivision shall no longer be
operative after March 31, 2002.
(5) The provisions of paragraph (1) shall not be applicable to any
irrigation district, water district, or water agency described in
paragraph (2) or (3).
(6) Transmission services provided to any irrigation district
described in paragraph (1) or (2) shall be provided pursuant to
otherwise applicable tariffs.
(7) Nothing in this chapter shall be deemed to grant the
commission any jurisdiction over irrigation districts not already
granted to the commission by existing law.
(b) To give the full effect to the legislative intent in enacting
Section 701.8, the costs provided in Sections 367, 368, 375, and 376
shall not apply to the load served by preference power purchased from
a federal power marketing agency, or its successor, pursuant to
Section 701.8 as it existed on January 1, 1996, provided that the
power is used solely for the customer's own systems load and not for
sale. The costs of this provision shall be borne by all ratepayers
in the affected service territory, notwithstanding the firewall
established in subdivision (e) of Section 367.
(c) To give effect to an existing relationship, the obligation to
pay the uneconomic costs specified in Sections 367, 368, 375, and 376
shall not apply to that portion of the load of the University of
California campus situated in Yolo County that was being served as of
May 31, 1996, by preference power purchased from a federal marketing
agency, or its successor, provided that the power is used solely for
the facility load of that campus and not, directly or indirectly,
for sale.
SEC. 313. Section 377.2 of the Public Utilities Code is amended to
read:
377.2. Notwithstanding Section 377, a facility for the generation
of electricity, or an interest in a facility for the generation of
electricity, that is located outside of this state, is owned by a
public utility that serves 60,000 or fewer customer accounts in this
state, and is not necessary to serve that public utility's customers
in this state, may be disposed of upon approval of the commission
pursuant to Section 851 or upon exemption by the commission pursuant
to Section 853.
SEC. 314. Section 379.6 of the Public Utilities Code is amended to
read:
379.6. (a) The commission, in consultation with the State Energy
Resources Conservation and Development Commission, shall until
January 1, 2008, administer a self-generation incentive program for
distributed generation resources, in the same form as exists on
January 1, 2004.
(b)
Notwithstanding subdivision (a), the self-generation incentive
program shall do all of the following:
(1) Commencing January 1, 2005, require all combustion-operated
distributed generation projects using fossil fuel to meet an oxides
of nitrogen (NOx) emissions rate standard of 0.14 pounds per
megawatthour to be eligible for self-generation rebates.
(2) Commencing January 1, 2007, require all combustion-operated
distributed generation projects using fossil fuel to meet an oxides
of nitrogen (NOx) emissions rate standard of 0.07 pounds per
megawatthour and a minimum efficiency of 60 percent, to be eligible
for self-generation rebates. A minimum efficiency of 60 percent shall
be measured as useful energy output divided by fuel input. The
efficiency determination shall be based on 100 percent load.
(3) Combined heat and power units that meet the 60-percent
efficiency standard may take a credit to meet the applicable oxides
of nitrogen (NOx) emission standard of 0.14 pounds per megawatthour
or 0.07 pounds per megawatthour. Credit shall be at the rate of one
megawatthour for each 3.4 million British Thermal Units (BTUs) of
heat recovered.
(4) Provide the commission with flexibility in administering the
self-generation incentive program, including, but not limited to,
flexibility with regard to the amount of rebates, inclusion of other
ultra-clean and low-emission distributed generation technologies, and
evaluation of other public policy interests, including, but not
limited to, ratepayers, and energy efficiency and environmental
interests.
SEC. 315. Section 396 of the Public Utilities Code is amended to
read:
396. (a) A consumer damaged by a violation of this article by an
electric service provider is entitled to recover all of the
following:
(1) Actual damages.
(2) The consumer's reasonable attorney's fees and court costs.
(3) Exemplary damages, in the amount the court deems proper, for
intentional or willful violations.
(4) Equitable relief as the court deems proper.
(b) The rights, remedies, and penalties established by this
article are in addition to the rights, remedies, or penalties
established under any other law.
(c) Nothing in this article shall abrogate any authority of the
Attorney General to enforce existing law.
SEC. 316. Section 399.12 of the Public Utilities Code is amended
to read:
399.12. For purposes of this article, the following terms have
the following meanings:
(a) "Eligible renewable energy resource" means an electric
generating facility that is one of the following:
(1) The facility meets the definition of "in-state renewable
electricity generation technology" in Section 383.5.
(2) A geothermal generation facility originally commencing
operation prior to September 26, 1996, shall be eligible for purposes
of adjusting a retail seller's baseline quantity of eligible
renewable energy resources except for output certified as incremental
geothermal production by the Energy Commission, provided that the
incremental output was not sold to an electrical corporation under
contract entered into prior to September 26, 1996. For each facility
seeking certification, the Energy Commission shall determine
historical production trends and establish criteria for measuring
incremental geothermal production that recognizes the declining
output of existing steamfields and the contribution of capital
investments in the facility or wellfield.
(3) The output of a small hydroelectric generation facility of 30
megawatts or less procured or owned by an electrical corporation as
of the date of enactment of this article shall be eligible only for
purposes of establishing the baseline of an electrical corporation
pursuant to paragraph (3) of subdivision (a) of Section 399.15. A
new hydroelectric facility is not an eligible renewable energy
resource if it will require a new or increased appropriation or
diversion of water under Part 2 (commencing with Section 1200) of
Division 2 of the Water Code.
(4) A facility engaged in the combustion of municipal solid waste
shall not be considered an eligible renewable resource unless it is
located in Stanislaus County and was operational prior to September
26, 1996. Output from these facilities shall be eligible only for
the purpose of adjusting a retail seller's baseline quantity of
eligible renewable energy resources.
(b) "Retail seller" means an entity engaged in the retail sale of
electricity to end-use customers, including any of the following:
(1) An electrical corporation, as defined in Section 218.
(2) A community choice aggregator. The commission shall institute
a rulemaking to determine the manner in which a community choice
aggregator will participate in the renewables portfolio standard
subject to the same terms and conditions applicable to an electrical
corporation.
(3) An electric service provider, as defined in Section 218.3,
subject to the following conditions:
(A) An electric service provider shall be considered a retail
seller under this article for sales to any customer acquiring service
after January 1, 2003.
(B) An electric service provider shall be considered a retail
seller under this article for sales to all its customers beginning on
the earlier of January 1, 2006, or the date on which a contract
between an electric service provider and a retail customer expires.
Nothing in this subdivision may require an electric service provider
to disclose the terms of the contract to the commission.
(C) The commission shall institute a rulemaking to determine the
manner in which electric service providers will participate in the
renewables portfolio standard. The electric service provider shall
be subject to the same terms and conditions applicable to an
electrical corporation pursuant to this article. Nothing in this
paragraph shall impair a contract entered into between an electric
service provider and a retail customer prior to the suspension of
direct access by the commission pursuant to Section 80110 of the
Water Code.
(4) "Retail seller" does not include any of the following:
(A) A corporation or person employing cogeneration technology or
producing power consistent with subdivision (b) of Section 218.
(B) The Department of Water Resources acting in its capacity
pursuant to Division 27 (commencing with Section 80000) of the Water
Code.
(C) A local publicly owned electrical utility as defined in
subdivision (d) of Section 9604.
(c) "Renewables portfolio standard" means the specified percentage
of electricity generated by eligible renewable energy resources that
a retail seller is required to procure pursuant to Sections 399.13
and 399.15.
SEC. 317. Section 1701.3 of the Public Utilities Code is amended
to read:
1701.3. (a) If the commission pursuant to Section 1701.1 has
determined that a ratesetting case requires a hearing, the procedures
prescribed by this section shall be applicable. The assigned
commissioner shall determine prior to the first hearing whether the
commissioner or the assigned administrative law judge shall be
designated as the principal hearing officer. The principal hearing
officer shall be present for more than one-half of the hearing days.
The decision of the principal hearing officer shall be the proposed
decision. An alternate decision may be issued by the assigned
commissioner or the assigned administrative law judge who is not the
principal hearing officer. The commission shall establish a
procedure for any party to request the presence of a commissioner at
a hearing. The assigned commissioner shall be present at the closing
arguments of the case. The principal hearing officer shall present
the proposed decision to the full commission in a public meeting.
The alternate decision, if any, shall also be presented to the full
commission at that public meeting. The alternate decision shall be
filed with the commission and shall be served on all parties
simultaneously with the proposed decision.
The presentation to the full commission shall contain a record of
the number of days of the hearing, the number of days that each
commissioner was present, and whether the decision was completed on
time.
(b) The commission shall provide by regulation for peremptory
challenges and challenges for cause of the administrative law judge.
Challenges for cause shall include, but not be limited to, financial
interests and prejudice. All parties shall be entitled to unlimited
peremptory challenges in any case in which the administrative law
judge has within the previous 12 months served in any capacity in an
advocacy position at the commission, been employed by a regulated
public utility, or has represented a party or has been a party of
interest in the case.
(c) Ex parte communications are prohibited in ratesetting cases.
However, oral ex parte communications may be permitted at any time by
any commissioner if all interested parties are invited and given not
less than three days' notice. Written ex parte communications may
be permitted by any party provided that copies of the communication
are transmitted to all parties on the same day. If an ex parte
communication meeting is granted to any party, all other parties
shall also be granted individual ex parte meetings of a substantially
equal period of time and shall be sent a notice of that
authorization at the time that the request is granted. In no event
shall that notice be less than three days. The commission may
establish a period during which no oral or written ex parte
communications shall be permitted and may meet in closed session
during that period, which shall not in any circumstance exceed 14
days. If the commission holds the decision, it may permit ex parte
communications during the first half of the interval between the hold
date and the date that the decision is calendared for final
decision. The commission may meet in closed session for the second
half of that interval.
(d) Any party has the right to present a final oral argument of
its case before the commission. Those requests shall be scheduled in
a timely manner. A quorum of the commission shall be present for the
final oral arguments.
(e) The commission may, in issuing its decision, adopt, modify, or
set aside the proposed decision or any part of the decision based on
evidence in the record. The final decision of the commission shall
be issued not later than 60 days after the issuance of the proposed
decision. Under extraordinary circumstances the commission may
extend this date for a reasonable period. The 60-day period shall be
extended for 30 days if any alternate decision is proposed pursuant
to Section 311.
SEC. 318. Section 21670.1 of the Public Utilities Code is amended
to read:
21670.1. (a) Notwithstanding any other provision of this article,
if the board of supervisors and the city selection committee of
mayors in the county each makes a determination by a majority vote
that proper land use planning can be accomplished through the actions
of an appropriately designated body, then the body so designated
shall assume the planning responsibilities of an airport land use
commission as provided for in this article, and a commission need not
be formed in that county.
(b) A body designated pursuant to subdivision (a) that does not
include among its membership at least two members having expertise in
aviation, as defined in subdivision (e) of Section 21670, shall,
when acting in the capacity of an airport land use commission, be
augmented so that body, as augmented, will have at least two members
having that expertise. The commission shall be constituted pursuant
to this section on and after March 1, 1988.
(c) (1) Notwithstanding subdivisions (a) and (b), and subdivision
(b) of Section 21670, if the board of supervisors of a county and
each affected city in that county each makes a determination that
proper land use planning pursuant to this article can be accomplished
pursuant to this subdivision, then a commission need not be formed
in that county.
(2) If the board of supervisors of a county and each affected city
makes a determination that proper land use planning may be
accomplished and a commission is not formed pursuant to paragraph
(1), that county and the appropriate affected cities having
jurisdiction over an airport, subject to the review and approval by
the Division of Aeronautics of the department, shall do all of the
following:
(A) Adopt processes for the preparation, adoption, and amendment
of the airport land use compatibility plan for each airport that is
served by a scheduled airline or operated for the benefit of the
general public.
(B) Adopt processes for the notification of the general public,
landowners, interested groups, and other public agencies regarding
the preparation, adoption, and amendment of the airport land use
compatibility plans.
(C) Adopt processes for the mediation of disputes arising from the
preparation, adoption, and amendment of the airport land use
compatibility plans.
(D) Adopt processes for the amendment of general and specific
plans to be consistent with the airport land use compatibility plans.
(E) Designate the agency that shall be responsible for the
preparation, adoption, and amendment of each airport land use
compatibility plan.
(3) The Division of Aeronautics of the department shall review the
processes adopted pursuant to paragraph (2), and shall approve the
processes if the division determines that the processes are
consistent with the procedure required by this article and will do
all of the following:
(A) Result in the preparation, adoption, and implementation of
plans within a reasonable amount of time.
(B) Rely on the height, use, noise, safety, and density criteria
that are compatible with airport operations, as established by this
article, and referred to as the Airport Land Use Planning Handbook,
published by the division, and any applicable federal aviation
regulations, including, but not limited to, Part 77 (commencing with
Section 77.1) of Title 14 of the Code of Federal Regulations.
(C) Provide adequate opportunities for notice to, review of, and
comment by the general public, landowners, interested groups, and
other public agencies.
(4) If the county does not comply with the requirements of
paragraph (2) within 120 days, then the airport land use
compatibility plan and amendments shall not be considered adopted
pursuant to this article and a commission shall be established within
90 days of the determination of noncompliance by the division and an
airport land use compatibility plan shall be adopted pursuant to
this article within 90 days of the establishment of the commission.
(d) A commission need not be formed in a county that has
contracted for the preparation of airport land use compatibility
plans with the Division of Aeronautics under the California Aid to
Airports Program (Chapter 4 (commencing with Section 4050) of Title
21 of the California Code of Regulations), Project Ker-VAR 90-1, and
that submits all of the following information to the Division of
Aeronautics for review and comment that the county and the cities
affected by the airports within the county, as defined by the airport
land use compatibility plans:
(1) Agree to adopt and implement the airport land use
compatibility plans that have been developed under contract.
(2) Incorporated the height, use, noise, safety, and density
criteria that are compatible with airport operations as established
by this article, and referred to as the Airport Land Use Planning
Handbook, published by the division, and any applicable federal
aviation regulations, including, but not limited to, Part 77
(commencing with Section 77.1) of Title 14 of the Code of Federal
Regulations, as part of the general and specific plans for the county
and for each affected city.
(3) If the county does not comply with this subdivision on or
before May 1, 1995, then a commission shall be established in
accordance with this article.
(e) (1) A commission need not be formed in a county if all of the
following conditions are met:
(A) The county has only one public use airport that is owned by a
city.
(B) (i) The county and the affected city adopt the elements in
paragraph (2) of subdivision (d), as part of their general and
specific plans for the county and the affected city.
(ii) The general and specific plans shall be submitted, upon
adoption, to the Division of Aeronautics. If the county and the
affected city do not submit the elements specified in paragraph (2)
of subdivision (d), on or before May 1, 1996, then a commission shall
be established in accordance with this article.
SEC. 319. Section 97.313 of the Revenue and Taxation Code is
amended to read:
97.313. (a) Notwithstanding any other provision of this chapter,
for the 1995-96 fiscal year only, the auditor of any qualified county
shall, upon being directed by the board of supervisors, increase the
amount of property tax revenue allocated to that county by an amount
of property tax revenue, not to exceed one million five hundred
fifty thousand dollars ($1,550,000), that is attributable to the
difference between the following amounts:
(1) The amount of the reduction that would have been determined by
the Director of Finance for the qualified county pursuant to
subdivision (b) of Section 97.31 in the absence of the two million
dollar ($2,000,000) limitation of subdivision (a) and paragraph (4)
of subdivision (b) of that section, and the maximum limitation of
paragraph (5) of subdivision (b) of that same section.
(2) The amount of the reduction that was determined by the
Director of Finance for the qualified county pursuant to subdivision
(b) of Section 97.31.
If the board of supervisors directs the auditor, pursuant to this
subdivision, to increase the amount of the property tax revenue
allocation of the county, the board shall also direct the auditor to
commensurately reduce the amount of the property tax revenue
allocation to the Educational Revenue Augmentation Fund. The county
shall expend any additional amount of property tax revenue that it
receives pursuant to this subdivision solely for the purpose of
funding public safety services.
(b) The Director of Finance shall determine for each qualified
county the difference described in subdivision (a), and shall as soon
as reasonably possible after the effective date of the act adding
this section, notify the board of supervisors of each qualified
county in writing of the amount of the difference calculated for that
county.
(c) For purposes of this section, "qualified county" means an
"eligible county," as defined in paragraph (2) of subdivision (a) of
Section 97.31, that was subject to the reduction required by
paragraph (4) of subdivision (b) of that same section.
(d) Except as otherwise required by law, the county auditor of a
qualified county shall allocate property tax revenues for the 1996-97
fiscal year and each fiscal year thereafter in those amounts that
fully reflect, as otherwise required by this chapter, any increases
or reductions in allocations that are directed by the board of
supervisors pursuant to subdivision (a).
SEC. 320. Section 155.20 of the Revenue and Taxation Code is
amended to read:
155.20. (a) Subject to the limitations listed in subdivisions
(b), (c), (d), and (e), a county board of supervisors may exempt from
property tax all real property with a base year value (as determined
pursuant to Chapter 1 (commencing with Section 50) of Part 0.5), and
personal property with a full value so low that, if not exempt, the
total taxes, special assessments, and applicable subventions on the
property would amount to less than the cost of assessing and
collecting them.
(b) (1) The board of supervisors shall have no authority to exempt
property with a total base year value or full value of more than
five thousand dollars ($5,000), except that this limitation is
increased to fifty thousand dollars ($50,000) in the case of a
possessory interest, for a temporary and transitory use, in a
publicly owned fairground, fairground facility, convention facility,
or cultural facility. For purposes of this paragraph, "publicly
owned convention or cultural facility" means a publicly owned
convention center, civic auditorium, theater, assembly hall, museum,
or other civic building that is used primarily for staging any of the
following:
(A) Conventions, trade and consumer shows, or civic and community
events.
(B) Live theater, dance, or musical productions.
(C) Artistic, historic, technological, or educational exhibits.
(2) In determining the level of the exemption, the board of
supervisors shall determine at what level of exemption the costs of
assessing the property and collecting taxes, assessments, and
subventions on the property exceeds the proceeds to be collected.
The board of supervisors shall establish the exemption level
uniformly for different classes of property. In making this
determination, the board of supervisors may consider the total taxes,
special assessments, and applicable subventions for the year of
assessment only or for the year of assessment and succeeding years
where cumulative revenues will not exceed the cost of assessments and
collections.
(c) This section does not apply to those real or personal
properties enumerated in Section 52.
(d) The exemption authorized by this section shall be adopted by
the board of supervisors on or before the lien date for the fiscal
year to which the exemption is to apply and may, at the option of the
board of supervisors, continue in effect for succeeding fiscal
years. Any revision or rescission of the exemption shall be adopted
by the board of supervisors on or before the lien date for the fiscal
year to which that revision or rescission is to apply.
(e) Nothing in this section shall authorize either of the
following:
(1) A county board of supervisors to exempt new construction,
unless the new total base year value of the property, including this
new construction, is five thousand dollars ($5,000) or less.
(2) An assessor to exempt or not to enroll any property of any
value, unless specifically authorized by a county board of
supervisors, pursuant to this section.
SEC. 321. Section 3691.6 of the Revenue and Taxation Code is
amended to read:
3691.6. Upon request of the Controller, the tax collector shall
report the disposition of all tax-defaulted parcels subject to tax
collections power to sell in his or her county.
SEC. 322. Section 6077 of the Revenue and Taxation Code is amended
to read:
6077. (a) Any retail florist who fails to obtain a permit before
engaging in or conducting business as a seller shall, in addition to
any other applicable penalty, pay a penalty of five hundred dollars
($500).
(b) Every mobile retail florist shall have a copy of the permit at
each sales location which shall be in the possession of a person
operating at that location.
(c) For purposes of this section, the following terms have the
following meanings:
(1) "Retail florist" means any person selling any flowers, potted
ornamental plants, floral arrangements, floral bouquets, wreaths, or
any similar products at retail. "Retail florist" does not include
any flower or ornamental plant grower who sells his or her own
products.
(2) "Mobile retail florist" means any retail florist who does not
sell from a structure or retail shop, including, but not limited to,
a florist who sells from a vehicle, pushcart, wagon, or other
portable method, or who sells at a swap meet, flea market, or similar
transient location.
SEC. 323. Section 6361.1 of the Revenue and Taxation Code is
amended to read:
6361.1. (a) Any qualified organization is a consumer of, and
shall not be considered a retailer of, tangible personal property if
all of the following conditions are met:
(1) The tangible personal property is of a handcrafted or artistic
nature and is designed, created, or made by either individuals with
developmental disabilities or children with severe emotional
disturbances who are members of, or receive services from, the
qualified organization.
(2) The price of each item of tangible personal property sold does
not exceed twenty dollars ($20).
(3) The qualified organization's sales are made on an irregular or
intermittent basis.
(4) The qualified organization's profits from the sales are used
exclusively in furtherance of the purposes of the organization.
(b) For purposes of this section, "qualified organization" means
any organization that meets all of the following conditions:
(1) The organization is exempt from taxation pursuant to paragraph
(3) of subsection (c) of Section 501 of Title 26 of the United
States Code.
(2) The primary purpose of the organization is to provide services
to either individuals with developmental disabilities or children
with severe emotional disturbances.
(3) The organization does not discriminate on the basis of race,
sex, nationality, or religion.
SEC. 324. Section 9405 of the Revenue and Taxation Code is amended
to read:
9405. This chapter shall be administered in conjunction with the
IFTA Articles of Agreement, the Use Fuel Tax Law (Part 3 (commencing
with Section 8601)), and the Diesel Fuel Tax Law (Part 31 (commencing
with Section 60001)). Whenever the Use Fuel Tax Law or the Diesel
Fuel Tax Law is inconsistent with the IFTA Articles of Agreement or
this chapter, the IFTA Articles of Agreement or this chapter shall
prevail except where prohibited by the California Constitution or
United States Constitution.
SEC. 325. Section 17132.6 of the Revenue and Taxation Code is
amended to read:
17132.6. A payment under paragraph (10) of subsection (c) of
Section 103 of the Ricky Ray Hemophilia Relief Fund Act of 1998 (42
U.S.C. Sec. 300c-22) to an individual shall be treated for purposes
of this part, Part 10.2 (commencing with Section 18401), and Part 11
(commencing with Section 23001) as damages described in Section 104
(a)(2) of the Internal Revenue Code.
SEC. 326. Section 18407 of the Revenue and Taxation Code, as added
by Chapter 654 of the Statutes of 2003, is amended to read:
18407. Section 6011 of the Internal Revenue Code, relating to
general requirement of return, statement, or list, shall apply,
except as otherwise provided.
(a) Section 6011(a) of the Internal Revenue Code, relating to
general rule, is modified as follows:
(1) The phrase "any person liable for any tax imposed by Part 10
(commencing with Section 17001), Part 11 (commencing with Section
23001), or this part," shall be
substituted for the phrase "when required by regulations prescribed
by the Secretary any person made liable for any tax imposed by this
title," contained therein.
(2) "Secretary of the Treasury under Section 6011 of the Internal
Revenue Code for federal income tax purposes or by the Franchise Tax
Board" shall be substituted for "Secretary."
(3) To additionally provide that "reportable transaction" includes
any transaction of a type that the Secretary of the Treasury under
Section 6011 of the Internal Revenue Code for federal income tax
purposes or the Franchise Tax Board under this section for California
income or franchise tax purposes determines as having a potential
for tax avoidance or evasion including deductions, basis, credits,
entity classification, dividend elimination, or omission of income,
and shall be reported on the return or the statement required to be
made.
(4) To additionally provide that "listed transaction" includes any
transaction that is the same as, or substantially similar to, a
transaction specifically identified by the Secretary of the Treasury
under Section 6011 of the Internal Revenue Code for federal income
tax purposes or by the Franchise Tax Board under this section for
California income or franchise tax purposes, as a tax avoidance
transaction including deductions, basis, credits, entity
classification, dividend elimination, or omission of income and shall
be reported on the return or statement required to be made.
(A) The Franchise Tax Board shall identify and publish "listed
transactions" (whether identified by the Secretary of the Treasury
under Section 6011 of the Internal Revenue Code for federal income
tax purposes or by the Franchise Tax Board) through the use of
Franchise Tax Board Notices or other published positions. In
addition, the "listed transactions" identified and published pursuant
to the preceding sentence shall be published on the Web site of the
Franchise Tax Board.
(B) The Franchise Tax Board shall conduct a public outreach
program to make taxpayers aware of the new and increased penalties
associated with the use of tax avoidance transactions including
deductions, basis, credits, entity classification, dividend
elimination, or omission of income.
(5) Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code does not apply to any
standard, criterion, procedure, determination, rule, notice, or
guideline established or issued by the Franchise Tax Board pursuant
to paragraph (4).
(b) Section 6011(b) of the Internal Revenue Code, relating to
identification of taxpayer, does not apply and, in lieu thereof,
Section 18408 shall apply.
(c) Section 6011(c) of the Internal Revenue Code, relating to
returns, etc., of DISCs and former DISCs and FSCs and former FSCs,
does not apply.
(d) Section 6011(d) of the Internal Revenue Code, relating to
authority to require information concerning Section 912 allowances,
does not apply.
(e) Section 6011(e) of the Internal Revenue Code, relating to
regulations requiring returns on magnetic media, etc., shall take
into account Section 18408 and shall also include the modifications
made to Section 6011(e) of the Internal Revenue Code by Section
18408.
(f) Section 6011(f)(2) of the Internal Revenue Code, relating to
incentives, does not apply.
SEC. 327. Section 18407 of the Revenue and Taxation Code, as added
by Chapter 656 of the Statutes of 2003, is amended to read:
18407. Section 6011 of the Internal Revenue Code, relating to
general requirement of return, statement, or list, shall apply,
except as otherwise provided.
(a) Section 6011(a) of the Internal Revenue Code, relating to
general rule, is modified as follows:
(1) The phrase "any person liable for any tax imposed by Part 10
(commencing with Section 17001), Part 11 (commencing with Section
23001), or this part," shall be substituted for the phrase "when
required by regulations prescribed by the Secretary any person made
liable for any tax imposed by this title," contained therein.
(2) "Secretary of the Treasury under Section 6011 of the Internal
Revenue Code for federal income tax purposes or by the Franchise Tax
Board" shall be substituted for "Secretary."
(3) To additionally provide that "reportable transaction" includes
any transaction of a type that the Secretary of the Treasury under
Section 6011 of the Internal Revenue Code for federal income tax
purposes or the Franchise Tax Board under this section for California
income or franchise tax purposes determines as having a potential
for tax avoidance or evasion including deductions, basis, credits,
entity classification, dividend elimination, or omission of income,
and shall be reported on the return or the statement required to be
made.
(4) To additionally provide that "listed transaction" includes any
transaction that is the same as, or substantially similar to, a
transaction specifically identified by the Secretary of the Treasury
under Section 6011 of the Internal Revenue Code for federal income
tax purposes or by the Franchise Tax Board under this section for
California income or franchise tax purposes, as a tax avoidance
transaction including deductions, basis, credits, entity
classification, dividend elimination, or omission of income and shall
be reported on the return or statement required to be made.
(A) The Franchise Tax Board shall identify and publish "listed
transactions" (whether identified by the Secretary of the Treasury
under Section 6011 of the Internal Revenue Code for federal income
tax purposes or by the Franchise Tax Board) through the use of
Franchise Tax Board Notices or other published positions. In
addition, the "listed transactions" identified and published pursuant
to the preceding sentence shall be published on the Web site of the
Franchise Tax Board.
(B) The Franchise Tax Board shall conduct a public outreach
program to make taxpayers aware of the new and increased penalties
associated with the use of tax avoidance transactions including
deductions, basis, credits, entity classification, dividend
elimination, or omission of income.
(5) Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code does not apply to any
standard, criterion, procedure, determination, rule, notice, or
guideline established or issued by the Franchise Tax Board pursuant
to paragraph (4).
(b) Section 6011(b) of the Internal Revenue Code, relating to
identification of taxpayer, does not apply and, in lieu thereof,
Section 18408 shall apply.
(c) Section 6011(c) of the Internal Revenue Code, relating to
returns, etc., of DISCs and former DISCs and FSCs and former FSCs,
does not apply.
(d) Section 6011(d) of the Internal Revenue Code, relating to
authority to require information concerning Section 912 allowances,
does not apply.
(e) Section 6011(e) of the Internal Revenue Code, relating to
regulations requiring returns on magnetic media, etc., shall take
into account Section 18408 and shall also include the modifications
made to Section 6011(e) of the Internal Revenue Code by Section
18408.
(f) Section 6011(f)(2) of the Internal Revenue Code, relating to
incentives, does not apply.
SEC. 328. Section 19164 of the Revenue and Taxation Code is
amended to read:
19164. (a) (1) An accuracy-related penalty shall be imposed under
this part and shall be determined in accordance with Section 6662 of
the Internal Revenue Code, relating to the imposition of an
accuracy-related penalty, except as otherwise provided.
(2) With respect to corporations, this subdivision shall apply to
all of the following:
(A) All taxable years beginning on or after January 1, 1990.
(B) Any other taxable year for which an assessment is made after
July 16, 1991.
(C) For purposes of this section, references in Section 6662(e) of
the Internal Revenue Code and the regulations thereunder, relating
to the treatment of an affiliated group that files a consolidated
federal return, are modified to apply to those entities required to
be included in a combined report under Section 25101 or 25110. For
these purposes, entities included in a combined report pursuant to
paragraph (4) or (6) of subdivision (a) of Section 25110 shall be
considered only to the extent required to be included in the combined
report.
(3) Section 6662(d)(1)(B) of the Internal Revenue Code is modified
to provide that in the case of a corporation, other than an S
corporation, that has been contacted by the Franchise Tax Board
regarding the use of a potentially abusive tax shelter (within the
meaning of Section 19777), there is a substantial understatement of
tax for any taxable year if the amount of the understatement for the
taxable year exceeds the lesser of:
(A) Ten percent of the tax required to be shown on the return for
the taxable year (or, if greater, two thousand five hundred dollars
($2,500)), or
(B) Five million dollars ($5,000,000).
(4) Section 6662(d)(2)(A) of the Internal Revenue Code is modified
to additionally provide that the excess determined under Section
6662(d)(2)(A) of the Internal Revenue Code shall be determined
without regard to items to which Section 19773 applies and without
regard to items with respect to which a penalty is imposed by Section
19774.
(5) For taxpayers that have been contacted by the Franchise Tax
Board regarding the use of a potentially abusive tax shelter (within
the meaning of Section 19777), Section 6662(d)(2)(B)(i) of the
Internal Revenue Code is modified to substitute the phrase "the tax
treatment of any item by the taxpayer if the taxpayer had reasonable
belief that the tax treatment was more likely than not the proper
treatment" for the phrase "the tax treatment of any item by the
taxpayer if there is or was substantial authority for such treatment"
contained therein.
(b) For purposes of Section 6662(d) of the Internal Revenue Code,
Section 6664 of the Internal Revenue Code (as modified by subdivision
(d)), Section 6694(a)(1) of the Internal Revenue Code, and this
part, the Franchise Tax Board may prescribe a list of positions for
which the Franchise Tax Board believes there is not substantial
authority or there is no reasonable belief that the tax treatment is
more likely than not the proper tax treatment. That list (and any
revisions thereof) shall be published through the use of Franchise
Tax Board Notices or other published positions. In addition, the
"listed transactions" identified and published pursuant to the
preceding sentence shall be published on the Web site of the
Franchise Tax Board. This subdivision applies only to list of
positions relating to abusive tax shelters, within the meaning of
Section 19777.
(c) A fraud penalty shall be imposed under this part and shall be
determined in accordance with Section 6663 of the Internal Revenue
Code, relating to imposition of fraud penalty, except as otherwise
provided.
(d) Section 6664 of the Internal Revenue Code, relating to
definitions and special rules, shall apply, except as otherwise
provided.
(1) For taxpayers that have been contacted by the Franchise Tax
Board regarding the use of a potentially abusive tax shelter (within
the meaning of Section 19777), Section 6664 of the Internal Revenue
Code is modified to additionally provide that no penalty shall be
imposed under Section 19773 with respect to any portion of a
reportable transaction understatement if it is shown that there was a
reasonable cause for that portion and that the taxpayer acted in
good faith with respect to that portion.
(2) Paragraph (1) does not apply to any reportable transaction
understatement unless all of the following requirements are met:
(A) (i) The relevant facts affecting the tax treatment of the item
are adequately disclosed in accordance with the regulations
prescribed under Section 6011 of the Internal Revenue Code, as
modified by Section 18407.
(ii) A taxpayer failing to adequately disclose in accordance with
Section 6011 of the Internal Revenue Code, as modified by Section
18407, shall be treated as meeting the requirements of this
subparagraph, if the penalty for that failure was rescinded under
subdivision (e) of Section 19772.
(iii) For taxable years beginning on or before January 1, 2003,
"adequately disclosed" includes the disclosure of the tax shelter
identification number on the taxpayer's return, as required by
subdivision (c) of Section 18628.
(B) There is or was substantial authority for the treatment.
(C) The taxpayer reasonably believed that the treatment was more
likely than not the proper treatment.
(3) For purposes of subparagraph (C) of paragraph (2) all of the
following shall apply:
(A) A taxpayer shall be treated as having a reasonable belief with
respect to the tax treatment of an item only if that belief meets
both of the following requirements:
(i) Is based on the facts and law that exist at the time the
return of tax that includes that tax treatment is filed.
(ii) Relates solely to the taxpayer's chances of success on the
merits of that treatment and does not take into account the
possibility that the return will not be audited, that the treatment
will not be raised on audit, or that the treatment will be resolved
through settlement if it is raised.
(B) (i) An opinion of a tax adviser may not be relied upon to
establish the reasonable belief of a taxpayer if either of the
following conditions are met:
(I) The tax adviser is described in clause (ii).
(II) The opinion is described in clause (iii).
(ii) A tax adviser is described in this clause if the tax adviser
meets any of the following conditions:
(I) Is a material adviser (within the meaning of subdivision (d)
of Section 18648) who participates in the organization, management,
promotion, or sale of the transaction or who is related (within the
meaning of Sections 267(b) or 707(b)(1) of the Internal Revenue Code)
to any person who so participates.
(II) Is compensated directly or indirectly by a material adviser
with respect to the transaction.
(III) Has a fee arrangement with respect to the transaction that
is contingent on all or part of the intended tax benefits from the
transaction being sustained.
(IV) As determined under regulations prescribed by either the
Secretary of the Treasury for federal income tax purposes or the
Franchise Tax Board, has a continuing financial interest with respect
to the transaction.
(iii) For purposes of clause (i), an opinion is disqualified if
the opinion meets any of the following conditions:
(I) Is based on unreasonable, factual, or legal assumptions
(including assumptions as to future events).
(II) Unreasonably relies on representations, statements, findings,
or agreements of the taxpayer or any other person.
(III) Does not identify and consider all relevant facts.
(IV) Fails to meet any other requirement as either the Secretary
of the Treasury for federal income tax purposes or the Franchise Tax
Board may by forms and instructions prescribe.
(e) Section 6665 of the Internal Revenue Code, relating to
applicable rules, shall apply, except as otherwise provided.
(f) For taxpayers that have been contacted by the Franchise Tax
Board regarding the use of a potentially abusive tax shelter (within
the meaning of Section 19777), Section 461(i)(3)(C) of the Internal
Revenue Code is modified by substituting a reference to "Section 1274
(b)(3)(B) of the Internal Revenue Code, as modified by subdivision
(g) of Section 19164" instead of the reference to "Section 6662(d)(2)
(C)(iii)" contained therein.
(g) For taxpayers that have been contacted by the Franchise Tax
Board regarding the use of a potentially abusive tax shelter (within
the meaning of Section 19777), Section 1274(b)(3)(B)(i) of the
Internal Revenue Code is modified to provide that for purposes of
Section 1274(b)(3)(B) of the Internal Revenue Code, the term "tax
shelter" means (1) a partnership or other entity, (2) any investment
plan or arrangement, or (3) any other plan or arrangement, if a
significant purpose of the partnership, entity, plan, or arrangement
is the avoidance or evasion of federal income tax or the tax imposed
under Part 10 (commencing with Section 17001) or Part 11 (commencing
with Section 23001).
SEC. 329. Section 19179 of the Revenue and Taxation Code is
amended to read:
19179. A penalty shall be imposed for filing a frivolous return.
The penalty shall be determined in accordance with Section 6702 of
the Internal Revenue Code, except as otherwise provided.
(a) Section 6702 of the Internal Revenue Code shall be applied to
returns required to be filed under this part.
(b) For taxpayers that have been contacted by the Franchise Tax
Board regarding the use of a potentially abusive tax shelter (within
the meaning of Section 19777), Section 6702(a) of the Internal
Revenue Code is modified as follows:
(1) By substituting "$5,000" instead of "$500."
(2) By substituting the term "person" instead of the term
"individual" in each place that it appears.
(3) By substituting "tax imposed under Part 10 (commencing with
Section 17001), Part 11 (commencing with Section 23001), or this part"
instead of the phrase "tax imposed by subtitle A" contained therein.
(4) By substituting the phrase "is based on" instead of the phrase
"is due to" contained therein.
(5) By substituting the phrase "frivolous or is based on a
position that the Franchise Tax Board has identified as frivolous
under subdivision (c) of Section 19179" instead of the term
"frivolous" contained therein.
(6) By substituting the phrase "reflects a desire to delay or
impede the administration of federal income tax laws as determined by
the Secretary of the Treasury or the administration of the tax
imposed under Part 10 (commencing with Section 17001), Part 11
(commencing with Section 23001), or this part as determined by the
Franchise Tax Board" instead of the phrase "a desire (which appears
on the purported return) to delay or impede the administration of
Federal income tax laws" contained therein.
(c) (1) The Franchise Tax Board shall prescribe (and periodically
revise) a list of positions which the Secretary of the Treasury for
federal income tax purposes or the Franchise Tax Board has identified
as being frivolous for purposes of this section.
(2) Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code does not apply to any
standard, criterion, procedure, determination, rule, notice, or
guideline established or prescribed by the Franchise Tax Board
pursuant to paragraph (1).
(d) (1) Except as provided in paragraph (3), any person who
submits a specified frivolous submission shall pay a penalty of five
thousand dollars ($5,000).
(2) For purposes of this section, all of the following shall
apply:
(A) The phrase "specified frivolous submission" means a specified
submission if any portion of that submission meets any of the
following conditions:
(i) Is based on a position which the Franchise Tax Board has
identified as frivolous under subdivision (c).
(ii) Reflects a desire to delay or impede the administration of
federal income tax laws as determined by the Secretary of the
Treasury or the administration of the tax imposed under Part 10
(commencing with Section 17001), Part 11 (commencing with Section
23001), or this part as determined by the Franchise Tax Board.
(B) The phrase "specified submission" means any of the following:
(i) A protest under Section 19041.
(ii) A request for a hearing under Section 19044.
(iii) An application under any of the following sections:
(I) Section 19008 (relating to agreements for payment of tax
liability in installments).
(II) Section 19443 (relating to compromises).
(III) Section 21004 (relating to actions of the Taxpayer Right's
Advocate).
(3) If the Franchise Tax Board provides a person with notice that
a submission is a specified frivolous submission and the person
withdraws that submission within 30 days after the notice, the
penalty imposed under paragraph (1) does not apply with respect to
that submission.
(e) (1) The Chief Counsel of the Franchise Tax Board may rescind
all or any portion of any penalty imposed by this section if both of
the following apply:
(A) Imposing the penalty would be against equity and good
conscience.
(B) Rescinding the penalty would promote compliance with the
requirements of this part and Part 10 (commencing with Section 17001)
or Part 11 (commencing with Section 23001) and effective tax
administration.
(2) The exercise of authority under paragraph (1) shall be at the
sole discretion of the Chief Counsel of the Franchise Tax Board and
may not be delegated.
(3) Notwithstanding any other law or rule of law, any
determination under this subdivision may not be reviewed in any
administrative or judicial proceeding.
(f) The penalties imposed by this section shall be in addition to
any other penalty provided by law.
SEC. 330. Section 19777 of the Revenue and Taxation Code, as added
by Chapter 654 of the Statutes of 2003, is amended to read:
19777. (a) If a taxpayer has been contacted by the Franchise Tax
Board regarding the use of a potentially abusive tax shelter, and has
a deficiency, there shall be added to the tax an amount equal to 100
percent of the interest payable under Section 19101 for the period
beginning on the last date prescribed by law for the payment of that
tax (determined without regard to extensions) and ending on the date
the notice of proposed assessment is mailed.
(b) "Potentially abusive tax shelter" means:
(1) Any tax shelter (as defined in Section 6111 of the Internal
Revenue Code) with respect to which registration is required under
Section 6111 of the Internal Revenue Code.
(2) Any entity, investment plan or arrangement, or other plan or
arrangement which is of a type that the Secretary of the Treasury or
the Franchise Tax Board determines by regulations as having a
potential for tax avoidance or evasion.
(c) The penalty imposed by this section is in addition to any
other penalty imposed under Part 10 (commencing with Section 17001),
Part 11 (commencing with Section 23001), or this part.
(d) This section shall apply to notices of proposed assessments
mailed after the effective date of the act adding this section.
SEC. 331. Section 19777 of the Revenue and Taxation Code, as added
by Chapter 656 of the Statutes of 2003, is amended to read:
19777. (a) If a taxpayer has been contacted by the Franchise Tax
Board regarding the use of a potentially abusive tax shelter, and has
a deficiency, there shall be added to the tax an amount equal to 100
percent of the interest payable under Section 19101 for the period
beginning on the last date prescribed by law for the payment of that
tax (determined without regard to extensions) and ending on the date
the notice of proposed assessment is mailed.
(b) "Potentially abusive tax shelter" means:
(1) Any tax shelter (as defined in Section 6111 of the Internal
Revenue Code) with respect to which registration is required under
Section 6111 of the Internal Revenue Code.
(2) Any entity, investment plan or arrangement, or other plan or
arrangement which is of a type that the Secretary of the Treasury or
the Franchise Tax Board determines by regulations as having a
potential for tax avoidance or evasion.
(c) The penalty imposed by this section is in addition to any
other penalty imposed under Part 10 (commencing with Section 17001),
Part 11 (commencing with Section 23001), or this part.
(d) This section shall apply to notices of proposed assessments
mailed after the effective date of the act adding this section.
SEC. 332. Section 23036 of the Revenue and Taxation Code is
amended to read:
23036. (a) (1) The term "tax" includes any of the following:
(A) The tax imposed under Chapter 2 (commencing with Section
23101).
(B) The tax imposed under Chapter 3 (commencing with Section
23501).
(C) The tax on unrelated business taxable income, imposed under
Section 23731.
(D) The tax on S corporations imposed under Section 23802.
(2) The term "tax" does not include any amount imposed under
paragraph (1) of subdivision (e) of Section 24667 or paragraph (2) of
subdivision (f) of Section 24667.
(b) For purposes of Article 5 (commencing with Section 18661) of
Chapter 2, Article 3 (commencing with Section 19031) of Chapter 4,
Article 6 (commencing with Section 19101) of Chapter 4, and Chapter 7
(commencing with Section 19501) of Part 10.2, and for purposes of
Sections 18601, 19001, and 19005, the term "tax" also includes all of
the following:
(1) The tax on limited partnerships, imposed under Section 17935,
the tax on limited liability companies, imposed under Section 17941,
and the tax on registered limited liability partnerships and foreign
limited liability partnerships imposed under Section 17948.
(2) The alternative minimum tax imposed under Chapter 2.5
(commencing with Section 23400).
(3) The tax on built-in gains of S corporations, imposed under
Section 23809.
(4) The tax on excess passive investment income of S corporations,
imposed under Section 23811.
(c) Notwithstanding any other provision of this part, credits are
allowed against the "tax" in the following order:
(1) Credits that do not contain carryover provisions.
(2) Credits that, when the credit exceeds the "tax," allow the
excess to be carried over to offset the "tax" in succeeding taxable
years, except for those credits that are allowed to reduce the "tax"
below the tentative minimum tax, as defined by Section 23455. The
order of credits within this paragraph shall be determined by the
Franchise Tax Board.
(3) The minimum tax credit allowed by Section 23453.
(4) Credits that are allowed to reduce the "tax" below the
tentative minimum tax, as defined by Section 23455.
(5) Credits for taxes withheld under Section 18662.
(d) Notwithstanding any other provision of this part, each of the
following applies:
(1) No credit may reduce the "tax" below the tentative minimum tax
(as defined by paragraph (1) of subdivision (a) of Section 23455),
except the following credits:
(A) The credit allowed by former Section 23601 (relating to solar
energy).
(B) The credit allowed by former Section 23601.4 (relating to
solar energy).
(C) The credit allowed by former Section 23601.5 (relating to
solar energy).
(D) The credit allowed by Section 23609 (relating
to research expenditures).
(E) The credit allowed by former Section 23609.5 (relating to
clinical testing expenses).
(F) The credit allowed by Section 23610.5 (relating to low-income
housing).
(G) The credit allowed by former Section 23612 (relating to sales
and use tax credit).
(H) The credit allowed by Section 23612.2 (relating to enterprise
zone sales or use tax credit).
(I) The credit allowed by former Section 23612.6 (relating to Los
Angeles Revitalization Zone sales tax credit).
(J) The credit allowed by former Section 23622 (relating to
enterprise zone hiring credit).
(K) The credit allowed by Section 23622.7 (relating to enterprise
zone hiring credit).
(L) The credit allowed by former Section 23623 (relating to
program area hiring credit).
(M) The credit allowed by former Section 23623.5 (relating to Los
Angeles Revitalization Zone hiring credit).
(N) The credit allowed by former Section 23625 (relating to Los
Angeles Revitalization Zone hiring credit).
(O) The credit allowed by Section 23633 (relating to targeted tax
area sales or use tax credit).
(P) The credit allowed by Section 23634 (relating to targeted tax
area hiring credit).
(Q) The credit allowed by Section 23649 (relating to qualified
property).
(2) No credit against the tax may reduce the minimum franchise tax
imposed under Chapter 2 (commencing with Section 23101).
(e) Any credit which is partially or totally denied under
subdivision (d) is allowed to be carried over to reduce the "tax" in
the following year, and succeeding years if necessary, if the
provisions relating to that credit include a provision to allow a
carryover of the unused portion of that credit.
(f) Unless otherwise provided, any remaining carryover from a
credit that has been repealed or made inoperative is allowed to be
carried over under the provisions of that section as it read
immediately prior to being repealed or becoming inoperative.
(g) Unless otherwise provided, if two or more taxpayers share in
costs that would be eligible for a tax credit allowed under this
part, each taxpayer is eligible to receive the tax credit in
proportion to his or her respective share of the costs paid or
incurred.
(h) Unless otherwise provided, in the case of an S corporation,
any credit allowed by this part is computed at the S corporation
level, and any limitation on the expenses qualifying for the credit
or limitation upon the amount of the credit applies to the S
corporation and to each shareholder.
(i) (1) With respect to any taxpayer that directly or indirectly
owns an interest in a business entity that is disregarded for tax
purposes pursuant to Section 23038 and any regulations thereunder,
the amount of any credit or credit carryforward allowable for any
taxable year attributable to the disregarded business entity is
limited in accordance with paragraphs (2) and (3).
(2) The amount of any credit otherwise allowed under this part,
including any credit carryover from prior years, that may be applied
to reduce the taxpayer's "tax," as defined in subdivision (a), for
the taxable year is limited to an amount equal to the excess of the
taxpayer's regular tax (as defined in Section 23455), determined by
including income attributable to the disregarded business entity that
generated the credit or credit carryover, over the taxpayer's
regular tax (as defined in Section 23455), determined by excluding
the income attributable to that disregarded business entity. No
credit is allowed if the taxpayer's regular tax (as defined in
Section 23455), determined by including the income attributable to
the disregarded business entity is less than the taxpayer's regular
tax (as defined in Section 23455), determined by excluding the income
attributable to the disregarded business entity.
(3) If the amount of a credit allowed pursuant to the section
establishing the credit exceeds the amount allowable under this
subdivision in any taxable year, the excess amount may be carried
over to subsequent taxable years pursuant to subdivisions (d), (e),
and (f).
(j) (1) Unless otherwise specifically provided, in the case of a
taxpayer that is a partner or shareholder of an eligible pass-through
entity described in paragraph (2), any credit passed through to the
taxpayer in the taxpayer's first taxable year beginning on or after
the date the credit is no longer operative may be claimed by the
taxpayer in that taxable year, notwithstanding the repeal of the
statute authorizing the credit prior to the close of that taxable
year.
(2) For purposes of this subdivision, "eligible pass-through
entity" means any partnership or S corporation that files its return
on a fiscal year basis pursuant to Section 18566, and that is
entitled to a credit pursuant to this part for the taxable year that
begins during the last year a credit is operative.
(3) This subdivision applies to credits that become inoperative on
or after the operative date of the act adding this subdivision.
SEC. 333. Section 23736.1 of the Revenue and Taxation Code is
amended to read:
23736.1. (a) For the purposes of this article, the term
"prohibited transaction" means any transaction in which an
organization subject to this article--
(1) Lends any part of its income or corpus, without the receipt of
adequate security and a reasonable rate of interest, to;
(2) Pays any compensation, in excess of a reasonable allowance for
salaries or other compensation for personal services actually
rendered, to;
(3) Makes any part of its services available on a preferential
basis to;
(4) Makes any substantial purchase of securities or any other
property, for more than adequate consideration in money or money's
worth, from;
(5) Sells any substantial part of its securities or other
property, for less than an adequate consideration in money or money's
worth, to; or
(6) Engages in any other transaction that results in a substantial
diversion of its income or corpus to; the creator of the
organization (if a trust); a person who has made a substantial
contribution to the organization; a member of the family (as defined
in Section 267(c)(4) of the Internal Revenue Code) of an individual
who is the creator of that trust or who has made a substantial
contribution to that organization; or a corporation controlled by
that creator or person through the ownership, directly or indirectly,
of 50 percent or more of the total combined voting power of all
classes of stock entitled to vote or 50 percent or more of the total
value of shares of all classes of stock of the corporation.
(b) For purposes of subdivision (a), a bond, debenture, note, or
certificate or other evidence of indebtedness (hereinafter in this
section referred to as "obligation") acquired by a trust described in
Section 23701n shall not be treated as a loan made without the
receipt of adequate security if--
(1) The obligation is acquired--
(A) On the market, either (i) at the price of the obligation
prevailing on a national securities exchange that is registered with
the Securities and Exchange Commission, or (ii) if the obligation is
not traded on a national securities exchange, at a price not less
favorable to the trust than the offering price for the obligation as
established by current bid and asked prices quoted by persons
independent of the issuer;
(B) From an underwriter, at a price (i) not in excess of the
public offering price for the obligation as set forth in a prospectus
or offering circular filed with the Securities and Exchange
Commission, and (ii) at which a substantial portion of the same issue
is acquired by persons independent of the issuer; or
(C) Directly from the issuer, at a price not less favorable to the
trust than the price paid currently for a substantial portion of the
same issue by persons independent of the issuer;
(2) Immediately following acquisition of that obligation--
(A) Not more than 25 percent of the aggregate amount of
obligations issued in that issue and outstanding at the time of
acquisition is held by the trust, and
(B) At least 50 percent of the aggregate amount referred to in
subparagraph (A) is held by persons independent of the issuer; and
(3) Immediately following acquisition of the obligation, not more
than 25 percent of the assets of the trust is invested in obligations
of persons described in subdivision (a).
(4) (A) In the case of a trust described in Section 23701n, or in
the case of a corporation described in Section 23701h, all of the
stock of which was acquired before January 1, 1961, by a trust
described in Section 23701n, any indebtedness incurred by that trust
or that corporation before January 1, 1961, in connection with real
property that is leased before January 1, 1961, and any indebtedness
incurred by that trust or that corporation on or after that date
necessary to carry out the terms of that lease, shall not be
considered as an indebtedness with respect to that trust or that
corporation for purposes of this section.
(B) In the application of paragraph (1) of subdivision (a), if a
trust described in Section 23701n forming part of a supplemental
unemployment compensation benefit plan lends any money to another
trust described in Section 23701n forming part of the same plan, that
loan shall not be treated as an indebtedness of the borrowing trust,
except to the extent that the loaning trust--
(i) Incurs any indebtedness in order to make that loan,
(ii) Incurred indebtedness before the making of that loan which
would not have been incurred but for the making of that loan, or
(iii) Incurred indebtedness after the making of that loan which
would not have been incurred but for the making of that loan and that
was reasonably foreseeable at the time of making that loan.
(c) Subdivision (a) shall not apply to a loan made by a trust
described in Section 23701n to the employer (or to a renewal of that
loan or, if the loan is repayable upon demand, to a continuation of
that loan) if the loan bears a reasonable rate of interest, and if
(in the case of a making or renewal)--
(1) The employer is prohibited (at the time of that making or
renewal) by any law of the United States or regulation thereunder
from directly or indirectly pledging, as security for the loan, a
particular class or classes of his or her assets the value of which
(at that time) represents more than one-half of the value of all his
or her assets;
(2) The making or renewal, as the case may be, is approved in
writing as an investment that is consistent with the exempt purposes
of the trust by a trustee who is independent of the employer, and no
other independent trustee had previously refused to give that written
approval; and
(3) Immediately following the making or renewal, as the case may
be, the aggregate amount loaned by the trust to the employer, without
the receipt of adequate security, does not exceed 25 percent of the
value of all the assets of the trust.
(4) For purposes of paragraph (2) the term "trustee" means, with
respect to any trust for which there is more than one trustee who is
independent of the employer, a majority of those independent
trustees. For purposes of paragraph (3), the determination as to
whether any amount loaned by the trust to the employer is loaned
without the receipt of adequate security shall be made without regard
to subdivision (b).
SEC. 334. Section 46622 of the Revenue and Taxation Code is
amended to read:
46622. (a) It is the intent of the Legislature that the State
Board of Equalization, its staff, and the Attorney General pursue
settlements as authorized under this section with respect to fee
matters in dispute that are the subject of protests, appeals, or
refund claims, consistent with a reasonable evaluation of the costs
and risks associated with litigation of these matters.
(b) (1) Subject to paragraph (2), the executive director or chief
counsel, if authorized by the executive director, of the board may
recommend to the State Board of Equalization, itself, a settlement of
any civil fee matter in dispute.
(2) No recommendation of settlement shall be submitted to the
board unless and until that recommendation has been submitted by the
executive director or chief counsel to the Attorney General. Within
30 days of receiving that recommendation, the Attorney General shall
review the recommendation and advise, in writing, the executive
director or chief counsel of the board of his or her conclusions as
to whether the recommendation is reasonable from an overall
perspective. The executive director or chief counsel shall, with
each recommendation of settlement submitted to the board, also submit
the Attorney General's written conclusions obtained pursuant to this
paragraph.
(c) Whenever a reduction of fee in settlement in excess of five
hundred dollars ($500) is approved pursuant to this section, there
shall be placed on file, for at least one year, in the office of the
executive director of the board a public record with respect to that
settlement. The public record shall include all of the following
information:
(1) The name or names of the feepayers who are parties to the
settlement.
(2) The total amount in dispute.
(3) The amount agreed to pursuant to the settlement.
(4) A summary of the reasons why the settlement is in the best
interests of the State of California.
(5) The Attorney General's conclusion as to whether the
recommendation of settlement was reasonable from an overall
perspective.
The public record shall not include any information that relates
to any trade secret, patent, process, style of work, apparatus,
business secret, or organizational structure that, if disclosed,
would adversely affect the feepayer or the national defense.
(d) The members of the State Board of Equalization shall not
participate in the settlement of fee matters pursuant to this
section, except as provided in subdivision (e).
(e) (1) Any recommendation of settlement shall be approved or
disapproved by the board, itself, within 45 days of the submission of
that recommendation to the board. Any recommendation for settlement
that is not either approved or disapproved by the board within 45
days of the submission of that recommendation shall be deemed
approved. Upon approval of a recommendation for settlement, the
matter shall be referred back to the executive director or chief
counsel in accordance with the decision of the board.
(2) Disapproval of a recommendation for settlement shall be made
only by a majority vote of the board. Where the board disapproves a
recommendation for settlement, the matter shall be remanded to board
staff for further negotiation, and may be resubmitted to the board,
in the same manner and subject to the same requirements as the
initial submission, at the discretion of the executive director or
chief counsel.
(f) All settlements entered into pursuant to this section shall be
final and nonappealable, except upon a showing of fraud or
misrepresentation with respect to a material fact.
(g) Any proceedings undertaken by the board itself pursuant to a
settlement as described in this section shall be conducted in a
closed session or sessions.
(h) This section shall apply only to fee matters in dispute on or
after the effective date of the act adding this subdivision.
(i) The Legislature finds that it is essential for fiscal purposes
that the settlement program authorized by this section be
expeditiously implemented. Accordingly, Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code shall not apply to any determination, rule, notice, or guideline
established or issued by the board in implementing and administering
the settlement program authorized by this section.
SEC. 335. Section 55337 of the Revenue and Taxation Code is
amended to read:
55337. (a) If any officer or employee of the board recklessly
disregards board-published procedures, a taxpayer aggrieved by that
action or omission may bring an action for damages against the State
of California in superior court.
(b) In any action brought under subdivision (a), upon finding of
liability on the part of the State of California, the state shall be
liable to the plaintiff in an amount equal to the sum of all of the
following:
(1) Actual and direct monetary damages sustained by the plaintiff
as a result of the actions or omissions.
(2) Reasonable litigation costs, including any of the following:
(A) Reasonable court costs.
(B) Prevailing market rates for the kind or quality of services
furnished in connection with any of the following:
(i) The reasonable expenses of expert witnesses in connection with
the civil proceedings, except that no expert witness shall be
compensated at a rate in excess of the highest rate of compensation
for expert witnesses paid by the State of California.
(ii) The reasonable cost of any study, analysis, engineering
report, test, or project that is found by the court to be necessary
for the preparation of the party's case.
(iii) Reasonable fees paid or incurred for the services of
attorneys in connection with the civil proceeding, except that those
fees shall not be in excess of seventy-five dollars ($75) per hour
unless the court determines that an increase in the cost of living or
a special factor, such as the limited availability of qualified
attorneys for the proceeding, justifies a higher rate.
(c) In the awarding of damages under subdivision (b), the court
shall take into consideration the negligence or omissions, if any, on
the part of the plaintiff which contributed to the damages.
(d) Whenever it appears to the court that the taxpayer's position
in the proceeding brought under subdivision (a) is frivolous, the
court may impose a penalty against the plaintiff in an amount not to
exceed ten thousand dollars ($10,000). A penalty so imposed shall be
paid upon notice and demand from the board and shall be collected as
a tax imposed under this part.
SEC. 336. Section 104.7 of the Streets and Highways Code is
amended to read:
104.7. (a) Unless otherwise provided by statute, when requested
by a city, county, or special district, the department shall provide
information regarding, and shall lease, unoccupied, unimproved
property that is held for future highway purposes to the city,
county, or special district within which the property is located.
The city, county, or special district may use the leased property
first for agricultural and community garden purposes, and second for
recreational purposes, on terms and conditions not unreasonably
inhibiting the use of the property, including, but not limited to,
assumption of liability and installation and removal of improvements.
The lease shall be for one dollar ($1) per year for not less than
one year and shall be renewable.
The city, county, or special district may sublease the property
for agricultural or recreational purposes upon prior written
notification to the department, and may proceed with the sublease
unless disapproved by the department within 10 working days after the
notice is sent to the department. The first priority for a sublease
shall be given to the owner of property contiguous to the leased
land.
In a sublease of the property, the city, county, or special
district may charge rental fees at least sufficient to pay its
administrative costs. All money received by the city, county, or
special district under a sublease, less administrative costs, shall
be transmitted to the department for deposit in the State Highway
Account.
(b) Unoccupied, unimproved property that has commercial,
industrial, or residential use as its most feasible or best use, as
determined by the department, is not subject to this section.
(c) The Legislature finds and declares that the lease of
unoccupied, unimproved property pursuant to this section serves a
public purpose.
SEC. 337. Section 3114.5 of the Streets and Highways Code is
amended to read:
3114.5. (a) This section applies only to community facilities
districts.
(b) Within 15 days after determination pursuant to Section 53328
of the Government Code that the requisite number of voters is in
favor of the levy of a special tax, the clerk of the legislative body
shall execute and record a notice of special tax lien in the office
of the county recorder of each county in which all or any part of the
community facilities district is located, and the county recorder
shall accept that notice. The county recorder shall index the notice
of special tax liens to the names of the property owners within the
community facilities district and shown in the notice, as grantors.
The notice of special tax lien shall contain the information required
by Section 27288.1 of the Government Code and shall be in
substantially the following form:
NOTICE OF SPECIAL TAX LIEN
Pursuant to the requirements of Section 3114.5 of the Streets and
Highways Code and Section 53328.3 of the Government Code, the
undersigned clerk of the legislative body of ____, State of
California, hereby gives notice that a lien to secure payment of a
special tax is hereby imposed by the (here insert name of legislative
body) of (here insert city and name of county thereafter), State of
California. The special tax secured by this lien is authorized to be
levied for the purpose of: (as applicable) (1) paying principal and
interest on bonds, the proceeds of which are being used to finance
(briefly describe facilities financed); (2) providing (briefly
describe facilities financed without bonds); (3) providing (briefly
describe services being financed).
If all or any portion of the proceeds of taxes or bonds of the
district are authorized to be used to pay for cleanup of hazardous
substances pursuant to subdivision (f) of Section 53313 of the
Government Code, the notice shall also contain the following
statement in large conspicuous type:
TAXES LEVIED BY THIS DISTRICT MAY BE USED TO PAY FOR CLEANUP OF
HAZARDOUS SUBSTANCES.
The special tax is authorized to be levied within Community
Facilities District No. ___ which has now been officially formed and
the lien of the special tax is a continuing lien which shall secure
each annual levy of the special tax and which shall continue in force
and effect until the special tax obligation is prepaid, permanently
satisfied, and canceled in accordance with law or until the special
tax ceases to be levied and a notice of cessation of special tax is
recorded in accordance with Section 53330.5 of the Government Code.
The rate, method of apportionment, and manner of collection of the
authorized special tax is as follows: (here insert verbatim the
description of the rate, method of apportionment, and manner of
collection from the resolution of formation of the community
facilities district). Conditions under which the obligation to pay
the special tax may be prepaid and permanently satisfied and the lien
of the special tax canceled are as follows: (here insert such
conditions as are set forth in the resolution of formation or, if no
provision has been made for prepayment of the special tax obligation,
so state).
Notice is further given that upon the recording of this notice in
the office of the county recorder, the obligation to pay the special
tax levy shall become a lien upon all nonexempt real property within
Community Facilities District No. ____ in accordance with Section
3115.5 of the Streets and Highways Code.
The name(s) of the owner(s) and the assessor's tax parcel number
(s) of the real property included within this community facilities
district and not exempt from the special tax are as follows: (insert
name(s) of owner(s) and tax parcel number(s) shown on assessment
roll).
Reference is made to the boundary map (or the amended boundary
map) of the community facilities district recorded at Book ___ of
Maps of Assessment and Community Facilities Districts at Page ___, in
the office of the County Recorder for the County of ____, State of
California which map is now the final boundary map of the community
facilities district.
For further information concerning the current and estimated
future tax liability of owners or purchasers of real property subject
to this special tax lien, interested persons should contact (here
provide name, address, and telephone number of the appropriate
office, department, or bureau of the public entity designated
pursuant to Section 53340.1 of the Government Code).
(c) The county recorder shall endorse upon the notice the time and
date of filing, and shall cross index the notice by reference to the
page of the book of maps of assessment and community facilities
districts in which the boundary map of the district was filed.
SEC. 338. Section 5101 of the Streets and Highways Code is amended
to read:
5101. Whenever, in the opinion of the legislative body, the
public interest or convenience may require, it may order the whole or
any portion, either in length or in width, of any one or more of the
streets, places, public ways, or property, easements, or
rights-of-way, or tidelands, or submerged lands owned by any city, or
tidelands or submerged lands leased by the state to any city for the
construction of improvements authorized by subdivision (g), open or
dedicated to public use, and any property for which an order for
possession prior to judgment has been obtained, to be improved by or
have constructed therein, over, or thereon, either singly or in any
combination thereof, any of the following:
(a) The grading or regrading, the paving or repaving, the planking
or replanking, the macadamizing or remacadamizing, the graveling or
regraveling, or the oiling or reoiling thereof.
(b) The construction or reconstruction of sidewalks, crosswalks,
steps, safety zones, platforms, seats, statuary, fountains, parks and
parkways, recreation areas, including all structures, buildings, and
other facilities necessary to make parks and parkways and recreation
areas useful for the purposes for which intended, culverts, bridges,
curbs, gutters, tunnels, subways, or viaducts.
(c) Sanitary sewers or instrumentalities of sanitation, together
with the necessary outlets, cesspools, manholes, catch basins, flush
tanks, septic tanks, disposal plants, connecting sewers, ditches,
drains, conduits, tunnels, channels, or other appurtenances.
(d) Drains, tunnels, sewers, conduits, culverts, and channels for
drainage purposes, together with necessary outlets, cesspools,
manholes, catch basins, flush tanks, septic tanks, disposal plants,
connecting sewers,
ditches, drains, conduits, channels, and appurtenances.
(e) Poles, posts, wires, pipes, conduits, tunnels, lamps, and
other suitable or necessary appliances for the purpose of lighting
the streets, places, or public ways of any such city or property or
rights-of-way owned by any such city, or for the purpose of
furnishing electricity and electric service or telephone service to
property within a city.
(f) Pipes, hydrants, and appliances for fire protection.
(g) Breakwaters, levees, bulkheads, groins, and walls of rock or
other material to protect the streets, places, public ways, and other
property in any such city, from overflow by water, or to prevent
beach erosion or to promote accretion to beaches.
(h) Wells, pumps, dams, reservoirs, storage tanks, channels,
tunnels, conduits, pipes, hydrants, meters, or other appurtenances
for supplying or distributing a domestic water supply.
(i) Mains, services, pipes, fittings, valves, regulators,
governors, meters, drips, drains, tanks, ditches, tunnels, conduits,
channels, or other appurtenances for supplying or distributing a
domestic or industrial gas supply.
(j) The construction or maintenance of bomb shelters or fallout
shelters that are primarily designed to protect and shelter the
population from conventional or nuclear bomb or missile warhead
explosions, shellfire, radiation, and fallout in the event of an
enemy attack.
(k) Retaining walls, embankments, buildings, and any other
structures or facilities necessary or suitable in connection with any
of the work mentioned in this section.
(l) The planting of trees, shrubs, or other ornamental vegetation.
(m) The construction, repairing, maintaining, or improving of
public mooring places for watercraft, channel improvements, and the
building, repairing, maintaining, and improving of wharves, piers,
docks, slips, quays, moles, port access routes, or other utilities,
structures, and appliances necessary or convenient for the promotion
or accommodation of commerce, navigation, and the protection of lands
within the city, and for aiding and securing access to the waters of
those lands to the people of the State of California, in the
exercise of their rights to fish, or for the extension of public
streets or places.
(n) Compaction of land, change of grade or contours, construction
of caissons, retaining walls, drains, and other structures suitable
for the purpose of stabilizing land.
(o) All other work that may be deemed necessary to improve the
whole or any portion of those streets, places, public ways, property,
easements, or rights-of-way owned by the city.
(p) All other work auxiliary to any of the above, which may be
required to carry out the above.
SEC. 339. Section 8833 of the Streets and Highways Code is amended
to read:
8833. (a) When any foreclosure actions are ordered by the local
agency or legislative body, or when subsequent installments and
interest that are also to be made the subject of a foreclosure action
thereafter become delinquent, and the foreclosure action is not
commenced and a notice of pendency of action is not concurrently
recorded, prior to the actual removal of the delinquent installment
from the tax roll, the local agency or legislative body responsible
for the foreclosure action on the delinquent installment shall do one
of the following:
(1) Prior to the actual removal of the delinquent installment from
the tax roll, the local agency or legislative body shall record or
cause to have recorded in the county recorder's office in the county
in which the real property is located, a Notice of Intent to Remove
Delinquent Assessment Installment from the Tax Roll, which contains
the information set forth in subdivision (b). If action is taken
under this paragraph, all of the following apply:
(A) Upon presentation of written proof of the recordation and a
request for removal by the local agency or legislative body, the
county auditor shall remove the delinquent installments from the tax
roll. "Proof of recordation" includes, but is not limited to, a
certified copy of the notice set forth in subdivision (b), or a copy
of the recorded notice containing the county recorder's assigned
document number, or a copy of the recorded notice containing a copy
stamp from the office of the county recorder.
(B) From the date of the recordation, the county tax collector
shall be credited upon the current assessment roll with the amount
charged against him or her on account of the delinquent assessments
or reassessments. If any person pays the delinquent installment
referred to in the Notice of Intent to Remove Delinquent Assessment
Installment from the Tax Roll to the county auditor prior to or
subsequent to the actual removal of that delinquent installment from
the tax roll, the county tax collector shall forward that payment to
the local agency or legislative body responsible for the foreclosure
action.
(C) From the date of recordation pursuant to this section, the
assessment or reassessment or installment thereof or interest
thereon, and penalties, costs, fees, and other charges accrued under
applicable statutes, that are to be collected in a foreclosure
action, shall no longer be collectible by the county tax collector.
(D) The county tax collector, in addition to the costs recovered
in foreclosure, may charge the actual costs incurred in removing
these sums from the tax roll or the performance of any other related
duties as set forth in this section.
(E) Installments, interest, penalties, costs, fees, and other
charges that do not become the subject of a foreclosure action shall
remain collectible by the county tax collector as otherwise provided
by applicable law.
(2) As an alternative to the notice requirement set forth in
paragraph (1), the Counties of San Bernardino and Riverside may,
simultaneously with the removal of the delinquent special assessment
installment from the secured tax roll, provide notification on the
secured tax roll that the installment has been removed from the roll
for each parcel for which the delinquent special tax assessment was
removed. The notice shall be displayed in a manner that conveys that
the removal has occurred, and shall include the name and telephone
number of the person or entity to be contacted to receive further
information.
(b) The Notice of Intent to Remove Delinquent Assessment
Installment from the Tax Roll shall be completed and recorded by or
caused to be recorded by the local agency or legislative body
responsible for the foreclosure action, and shall contain all of the
following:
(1) The name of the local agency or legislative body, city, or
other assessment district responsible for the foreclosure action.
(2) The legal description or assessor's parcel number of the
property affected by the notice.
(3) The specific tax year and installment intended to be removed
from the tax roll.
(4) The title, address, and telephone number of the employee, city
official, or other authorized official who should be contacted
regarding the delinquent assessment installment amount.
(5) The name of the owner shown on the last equalized assessment
roll.
(c) Any local agency or legislative body that removed or caused to
be removed a delinquent assessment installment from the ad valorem
tax roll prior to January 1, 1997, shall record, by July 1, 1997, a
Notice of Intent to Remove Delinquent Assessment Installment from the
Tax Roll or shall request the tax collector to retain the notice of
delinquent assessment installment on the tax roll as set forth in
paragraph (2) of subdivision (a). If the foreclosure action has been
filed and a notice of pendency of action has been recorded in the
county recorder's office prior to July 1, 1997, this requirement does
not apply.
(d) All costs associated with the county tax collector's and local
agency's responsibilities as set forth in this section shall be
recoverable by the local agency or legislative body through the
foreclosure action.
(e) The recording of a notice of pendency of action in the county
recorder's office in the county in which the real property is
located, concurrent with the commencement of a foreclosure action
ordered by the local agency or legislative body and commenced prior
to the actual removal from the tax roll of the delinquent installment
that is the subject of the foreclosure action, constitutes
compliance with the notice requirements of this section.
SEC. 340. Section 10100.2 of the Streets and Highways Code is
amended to read:
10100.2. (a) (1) Whenever the public interest or convenience
requires, the legislative body may use the powers of this division to
pay, or make funds available to enable the owners of lots or parcels
of real property within the district to pay, for either of the
following:
(A) Work deemed necessary to bring real property or buildings,
including privately owned real property or buildings, into compliance
with seismic safety standards or regulations. The legislative body
shall declare that public loans or funds provided to owners of
private buildings for seismic strengthening of unreinforced buildings
or other buildings, or real property, pursuant to this section
constitute a public purpose resulting in a public benefit. Only work
certified as necessary to comply with seismic safety standards or
regulations by local building officials may be financed. No project
involving the dismantling of an existing building and its replacement
by a new building or the construction of a new or substantially new
building may be financed pursuant to this section, except as
otherwise provided in subparagraph (B). Work on qualified historical
buildings or structures shall be done in accordance with the State
Historical Building Code (Part 2.7 (commencing with Section 18950) of
Division 13 of the Health and Safety Code). Any financing for
seismic strengthening of a residential structure containing units
rented by households specified in Section 50079.5 of the Health and
Safety Code before strengthening shall be subject to a regulatory
agreement that will ensure that the number of those units in the
structure will not be reduced and will remain available at affordable
rents pursuant to Section 50053 of the Health and Safety Code as
long as any assessments levied pursuant to this section on the parcel
on which the structure is located remain unpaid.
No lot, parcel, or building shall be included in the district
without the owner's consent.
(B) Within any area that has been designated by the Governor as a
disaster area or for which the Governor has proclaimed the existence
of a state of emergency because of earthquake damage, work deemed
necessary to repair any damage to real property directly or
indirectly caused by the occurrence of an earthquake cited in the
Governor's designation or proclamation, or by aftershocks associated
with that earthquake, including work to reconstruct, repair, shore
up, or replace any real property or building damaged or destroyed by
the earthquake or by its aftershocks. Work may be financed pursuant
to this subparagraph only on real property or buildings identified in
a resolution of intention to establish a district adopted within
seven years of the date that the Governor designates the area as a
disaster area or proclaims a state of emergency in the area.
(2) Any district created to finance seismic safety work on
privately owned buildings, including repair, reconstruction, or
replacement of privately owned buildings pursuant to this section,
shall consist only of lots or parcels on which the legislative body
finds that the buildings to be worked on, repaired, reconstructed, or
replaced pursuant to this section, are located or were located
before being damaged or destroyed by the earthquake that is the
subject of the Governor's designation or proclamation pursuant to
subparagraph (B) of paragraph (1), or by the aftershocks of that
earthquake.
(3) The Legislature hereby declares that the use of public funds
pursuant to this section for seismic strengthening, repair, or
reconstruction of privately owned real property or buildings
constitutes a public purpose resulting in a public benefit. The use
of funds pursuant to this section shall not be construed to be gifts
of public funds in violation of Section 6 of Article XVI of the
California Constitution.
(4) A loan or expenditure of funds made by a district pursuant to
this section and secured by a tax assessment or a lien, or both that
assessment and lien, on private property shall not, when combined
with existing liens on the property, exceed 80 percent of the current
appraised value of the property, as determined by an independent,
certified appraiser, unless existing lienholders consent in writing
to a higher loan-to-value ratio. Notice of the creation of a
district or the authorization for the loan or expenditure of funds
for the purposes set forth in this section shall be given to
lienholders of record on the property included in the district at
least 30 days prior to any vote of the governing body authorizing the
creation of the district or the loan or expenditure of funds that
could create a lien on the property.
(b) A district created to finance seismic safety or repair work
pursuant to this section may include areas of territory that are not
contiguous.
(c) At any time after the passage of the resolution provided for
in subdivision (a) of Section 10312, the legislative body may make
changes in or modify the improvements or reduce the assessment with
respect to a particular lot or parcel within an assessment district
created for the purposes of this section with the written consent of
the owner of that lot or parcel.
(d) Any changes made within an assessment district created for
the purposes of this section shall be made after notice and hearing,
as provided in this division, except that changes may be made under
any of the following circumstances:
(1) At the hearing on the report, changes that do any of the
following:
(A) Eliminate a portion of the assessment district without
increasing the amount of any assessment or substantially affecting
the distribution of benefits from the improvements.
(B) Exclude territory that will not be benefited by the remaining
improvements without increasing the amount of any assessment.
(C) Modify the improvements or the assessment with respect to a
particular lot or parcel within the assessment district with the
written consent of the owner and without increasing the assessments
on any other real property.
(2) At any time after the improvements are ordered and during the
pendency of the proceedings to establish the assessment district.
(3) At any time after the adoption of the resolution provided for
in subdivision (a) of Section 10312, to modify the improvements or
reduce the assessment with respect to a particular lot or parcel
within the assessment district with the written consent of the owner.
(e) An action to determine the validity of any assessments, bonds,
bond anticipation notes, contracts, or improvements for the purposes
of this section may be brought by the legislative body, or by any
person designated by the legislative body, pursuant to Chapter 9
(commencing with Section 860) of Title 10 of the Code of Civil
Procedure. For this purpose, an improvement shall be deemed to be in
existence upon its authorization and an assessment upon its
confirmation.
(f) It is the intent of the Legislature that the powers conferred
by this section shall be in addition and supplemental to, and not
exclusive of, the powers conferred by any other law.
SEC. 341. Section 31071 of the Streets and Highways Code is
amended to read:
31071. (a) The department may enter into financing agreements
with the bank for the purpose of borrowing funds to finance or
refinance the seismic retrofit project costs identified in paragraph
(4) of subdivision (a) of Section 188.5. The bank may issue bonds
for this purpose, pursuant to the authority granted to it under
Chapter 5 (commencing with Section 63070) of Division 1 of Title 6.7
of the Government Code, and deposit the proceeds from the bonds into
the account. The amount of borrowing may be increased to fund
necessary reserves, capitalized interest, interim bonds, including,
but not limited to, commercial paper, costs of issuance, and
administrative, financial, legal, and incidental services related to
the bonds. The department shall pursue the most cost-effective and
efficient financing plan for the bridge work identified in paragraph
(4) of subdivision (a) of Section 188.5.
(b) To the extent provided in the governing documents, each of the
bonds issued under this section shall be payable from, and secured
by, all or a portion of the toll surcharge revenue in the account and
the assets in that account.
(c) Prior to the issuance of bonds payable from the toll
surcharge, the bank shall confirm that bonds issued under Chapter 4.3
(commencing with Section 30950) shall not be impaired solely by
action taken under this section, as evidenced by confirmation of the
then existing ratings on these bonds, by the rating agencies then
rating the bonds. This requirement shall not apply if the voters
approve an increase in the toll rate pursuant to subdivision (b) of
Section 30921.
SEC. 342. Section 2610 of the Unemployment Insurance Code is
amended to read:
2610. "Disability base period," with respect to an individual who
does not have an unexpired benefit year for unemployment
compensation benefits, means for disability benefit periods beginning
in October, November, or December, the four calendar quarters ended
in the next preceding month of June; the disability base period for
disability benefit periods beginning in January, February, or March,
shall be the four calendar quarters ended in the next preceding month
of September; the disability base period for disability benefit
periods beginning in April, May, or June, shall be the four calendar
quarters ended in the next preceding month of December; the
disability base period for disability benefit periods beginning in
July, August, or September shall be the four calendar quarters ended
with the next preceding month of March.
SEC. 343. Section 3305 of the Unemployment Insurance Code is
amended to read:
3305. If the director finds that any individual falsely certifies
the medical condition of any person in order to obtain family
temporary disability insurance benefits, with the intent to defraud,
whether for the maker or for any other person, the director shall
assess a penalty against the individual in the amount of 25 percent
of the benefits paid as a result of the false certification. The
provisions of Article 8 (commencing with Section 1126) of Chapter 4
of Part 1, with respect to assessments, the provisions of Article 9
(commencing with Section 1176) of Chapter 4 of Part 1, with respect
to refunds, and the provisions of Chapter 7 (commencing with Section
1701) of Part 1, with respect to collections, shall apply to the
assessments provided by this section. Penalties collected under this
section shall be deposited in the contingent fund.
SEC. 344. Section 10200 of the Unemployment Insurance Code is
amended to read:
10200. The Legislature finds and declares the following:
(a) California's economy is being challenged by competition from
other states and overseas. In order to meet this challenge,
California's employers, workers, labor organizations, and government
need to invest in a skilled and productive workforce, and in
developing the skills of frontline workers. For purposes of this
section, "frontline worker" means a worker who directly produces or
delivers goods or services.
The purpose of this chapter is to establish a strategically
designed employment training program to promote a healthy labor
market in a growing, competitive economy that shall fund only
projects that meet the following criteria:
(1) (A) Foster creation of high-wage, high-skilled jobs, or foster
retention of high-wage, high-skilled jobs in manufacturing and other
industries that are threatened by out-of-state and global
competition, including, but not limited to, those industries in which
targeted training resources for California's small and medium-sized
business suppliers will increase the state's competitiveness to
secure federal, private sector, and other nonstate funds.
(B) Provide for retraining contracts in companies that make a
monetary or in-kind contribution to the funded training enhancements.
(2) Encourage industry-based investment in human resources
development that promotes the competitiveness of California industry
through productivity and product quality enhancements.
(3) Result in secure jobs for those who successfully complete
training. All training shall be customized to the specific
requirements of one or more employers or a discrete industry and
shall include general skills that trainees can use in the future.
(4) Supplement, rather than displace, funds available through
existing programs conducted by employers and government-funded
training programs, such as the Workforce Investment Act of 1998 (29
U.S.C. Sec. 2801 et. seq.), the Carl D. Perkins Vocational Education
Act (P.L. 98-524), CalWORKs (Chapter 2 (commencing with Section
11200) of Part 3 of Division 9 of the Welfare and Institutions Code),
the Enterprise Zone Act (Chapter 12.8 (commencing with Section 7070)
of Division 7 of Title 1 of the Government Code), and the Stewart B.
McKinney Homeless Assistance Act (42 U.S.C. Sec. 290aa), the
California Community Colleges Economic Development Program, or
apportionment funds allocated to the community colleges, regional
occupational centers and programs, or other local educational
agencies. In addition, it is further the intention of the
Legislature that programs developed pursuant to this chapter shall
not replace, parallel, supplant, compete with, or duplicate in any
way already existing approved apprenticeship programs.
(b) The Employment Training Panel, in funding projects that meet
the requirements of subdivision (a), shall give funding priority to
those projects that best meet the following goals:
(1) Result in the growth of the California economy by stimulating
exports from the state, and the production of goods and services that
would otherwise be imported from outside the state.
(2) Train new employees of firms locating or expanding in the
state that provide high-skilled, high-wage jobs and are committed to
an ongoing investment in the training of frontline workers.
(3) Develop workers with skills that prepare them for the
challenges of a high performance workplace of the future.
(4) Train workers who have been displaced, have received
notification of impending layoff, or are subject to displacement,
because of a plant closure, workforce reduction, changes in
technology, or significantly increasing levels of international and
out-of-state competition.
(5) Are jointly developed by business management and worker
representatives.
(6) Develop career ladders for workers.
(7) Promote the retention and expansion of the state's
manufacturing workforce.
(c) The program established through this chapter is to be
coordinated with all existing employment training programs and
economic development programs, including, but not limited to,
programs such as the Workforce Investment Act of 1998 (29 U.S.C. Sec.
2801 et. seq.), the California Community Colleges, the regional
occupational programs, vocational education programs, joint
labor-management training programs, and related programs under the
Employment Development Department and the Technology, Trade, and
Commerce Agency, or any successor to that agency.
SEC. 345. Section 2813.5 of the Vehicle Code is amended to read:
2813.5. (a) The commissioner shall have exclusive authority in
the issuance of stickers as evidence that commercial vehicles have
been inspected pursuant to Section 2813 and have been found to be in
compliance with minimum safety standards established by the
department. The commissioner may make and enforce regulations with
respect to the issuance and display of the stickers upon commercial
vehicles.
(b) It is unlawful for any unauthorized person, company,
corporation, or public or private entity to possess, issue, or
display upon a vehicle an unauthorized commercial vehicle safety
inspection sticker or a sticker that is either a facsimile of, or is
substantially similar to, that issued by the commissioner.
(c) Any violation of subdivision (b) is a misdemeanor.
SEC. 346. Section 3072 of the Vehicle Code is amended to read:
3072. (a) (1) Except as otherwise provided in subdivision (b), if
a franchisor seeks to enter into a franchise establishing an
additional motor vehicle dealership within a relevant market area
where the same recreational vehicle line-make is then represented, or
seeks to relocate an existing motor vehicle dealership, the
franchisor shall, in writing, first notify the board and each
franchisee in that recreational vehicle line-make in the relevant
market area of the franchisor's intention to establish an additional
dealership or to relocate an existing dealership within or into that
market area. Within 20 days of receiving the notice, satisfying the
requirements of this section, or within 20 days after the end of any
appeal procedure provided by the franchisor, any franchisee required
to be given the notice may file with the board a protest to
establishing or relocating the dealership. If, within this time, a
franchisee files with the board a request for additional time to file
a protest, the board or its secretary, upon a showing of good cause,
may grant an additional 10 days to file the protest. When a protest
is filed, the board shall inform the franchisor that a timely protest
has been filed, that a hearing is required pursuant to Section 3066,
and that the franchisor shall not establish or relocate the proposed
dealership until the board has held a hearing as provided in Section
3066, nor thereafter, if the board has determined that there is good
cause for not permitting the dealership. In the event of multiple
protests, hearings may be consolidated to expedite the disposition of
the issue.
(2) The written notice shall contain, on the first page thereof in
at least 12-point bold type and circumscribed by a line to segregate
it from the rest of the text, the following statement:
"NOTICE TO DEALER: You have the right to file a protest with the
NEW MOTOR VEHICLE BOARD in Sacramento and have a hearing on your
protest under the terms of the California
Vehicle Code if you oppose this action. You must file
your protest with the board within 20 days of your receipt of this
notice, or within 20 days after the end of any appeal procedure that
is provided by us to you. If, within this time, you file with the
board a request for additional time to file a protest, the board or
its secretary, upon a showing of good cause, may grant you an
additional 10 days to file the protest."
(b) Subdivision (a) does not apply to any of the following:
(1) The relocation of an existing dealership to any location that
is both within the same city as, and within one mile of, the existing
dealership location.
(2) The establishment at any location that is both within the same
city as, and within one-quarter mile of, the location of a
dealership of the same recreational vehicle line-make that has been
out of operation for less than 90 days.
(3) A display of vehicles at a fair, exposition, or similar
exhibit if no actual sales are made at the event and the display does
not exceed 30 days. This paragraph may not be construed to prohibit
a new vehicle dealer from establishing a branch office for the
purpose of selling vehicles at the fair, exposition, or similar
exhibit, even though that event is sponsored by a financial
institution, as defined in Section 31041 of the Financial Code, or by
a financial institution and a licensed dealer. The establishment of
these branch offices, however, shall be in accordance with
subdivision (a) where applicable.
(4) An annual show sponsored by a national trade association of
recreational vehicle manufacturers that complies with all of the
requirements of subdivision (d) of Section 11713.15.
(5) A motor vehicle dealership protesting the location of another
dealership with the same recreational vehicle line-make within its
relevant market area, if the dealership location subject to the
protest was established on or before January 1, 2004.
(c) For the purposes of this section, the reopening of a
dealership that has not been in operation for one year or more shall
be deemed the establishment of an additional motor vehicle
dealership.
(d) For the purposes of this section and Section 3073, a "motor
vehicle dealership" or "dealership" is any authorized facility at
which a franchisee offers for sale or lease, displays for sale or
lease, or sells or leases new recreational vehicles, as defined in
subdivision (a) of Section 18010 of the Health and Safety Code. A
"motor vehicle dealership" or "dealership" does not include a dealer
who deals exclusively in truck campers.
SEC. 347. Section 9250.13 of the Vehicle Code is amended to read:
9250.13. (a) (1) In addition to any other fees specified in this
code and the Revenue and Taxation Code, a fee of six dollars ($6)
shall be paid at the time of registration or renewal of registration
of every vehicle, except vehicles described in subdivision (a) of
Section 5014.1, subject to registration under this code, except those
vehicles that are expressly exempted under this code from the
payment of registration fees.
(2) In addition to the fee required under paragraph (1), upon the
implementation of the permanent trailer identification plate program,
and as part of the Commercial Vehicle Registration Act of 2001
(Chapter 861 of the Statutes of 2000), all commercial motor vehicles
subject to Section 9400.1 shall pay a fee of six dollars ($6).
(b) The money realized pursuant to this section shall be
available, upon appropriation by the Legislature, for expenditure to
offset the costs of increasing the uniformed field strength of the
Department of the California Highway Patrol beyond its 1994 staffing
level and those costs associated with maintaining this new level of
uniformed field strength and carrying out those duties specified in
subdivision (a) of Section 830.2 of the Penal Code.
SEC. 348. Section 9400.1 of the Vehicle Code is amended to read:
9400.1. (a) (1) In addition to any other required fee, there
shall be paid the fees set forth in this section for the registration
of commercial motor vehicles operated either singly or in
combination with a declared gross vehicle weight of 10,001 pounds or
more. Pickup truck and electric vehicle weight fees are not
calculated under this section.
(2) The weight of a vehicle issued an identification plate
pursuant to an application under Section 5014, and the weight of an
implement of husbandry as defined in Section 36000, shall not be
considered when calculating, pursuant to this section, the declared
gross vehicle weight of a towing commercial motor vehicle that is
owned and operated exclusively by a farmer or an employee of a farmer
in the conduct of agricultural operations.
(3) Tow trucks that are utilized to render assistance to the
motoring public or to tow or carry impounded vehicles shall pay fees
in accordance with this section, except that the fee calculation
shall be based only on the gross vehicle weight rating of the towing
or carrying vehicle. Upon each initial or transfer application for
registration of a tow truck described in this paragraph, the
registered owner or lessee or that owner's or lessee's designee,
shall certify to the department the gross vehicle weight rating of
the tow truck:
Gross Vehicle Weight Range Fee
10,001-15,000 ............................... $ 257
15,001-20,000 ............................... 353
20,001-26,000 ............................... 435
26,001-30,000 ............................... 552
30,001-35,000 ............................... 648
35,001-40,000 ............................... 761
40,001-45,000 ............................... 837
45,001-50,000 ............................... 948
50,001-54,999 ............................... 1,039
55,000-60,000 ............................... 1,173
60,001-65,000 ............................... 1,282
65,001-70,000 ............................... 1,398
70,001-75,000 ............................... 1,650
75,001-80,000 ............................... 1,700
(b) The fees specified in subdivision (a) apply to both of the
following:
(1) An initial or original registration occurring on or after
December 31, 2001, to December 30, 2003, inclusive, of a commercial
motor vehicle operated either singly or in combination with a
declared gross vehicle weight of 10,001 pounds or more.
(2) The renewal of registration of a commercial motor vehicle
operated either singly or in combination, with a declared gross
vehicle weight of 10,001 pounds or more for which registration
expires on or after December 31, 2001, to December 30, 2003,
inclusive.
(c) (1) For both an initial or original registration occurring on
or after December 31, 2003, of a commercial motor vehicle operated
either singly or in combination with a declared gross vehicle weight
of 10,001 pounds or more, and the renewal of registration of a
commercial motor vehicle operated either singly or in combination,
with a declared gross vehicle weight of 10,001 pounds or more for
which registration expires on or after December 31, 2003, there shall
be paid fees as follows:
Gross Vehicle Weight Range Weight Code Fee
10,001-15,000 A $ 332
15,001-20,000 B 447
20,001-26,000 C 546
26,001-30,000 D 586
30,001-35,000 E 801
35,001-40,000 F 937
937
40,001-45,000 G 1,028
45,001-50,000 H 1,161
50,001-54,999 I 1,270
55,000-60,000 J 1,431
60,001-65,000 K 1,562
65,001-70,000 L 1,701
70,001-75,000 M 2,004
75,001-80,000 N 2,064
(2) For the purpose of obtaining "revenue neutrality" as described
in Sections 1 and 59 of Senate Bill 2084 of the 1999-2000 Regular
Session (Chapter 861 of the Statutes of 2000), the Director of
Finance shall review the final 2003-04 Statement of Transactions of
the State Highway Account. If that review indicates that the actual
truck weight fee revenues deposited in the State Highway Account do
not total at least seven hundred eighty-nine million dollars
($789,000,000), the Director of Finance shall instruct the department
to adjust the schedule set forth in paragraph (1), but not to exceed
the following fee amounts:
Gross Vehicle Weight Range Weight Code Fee
10,001-15,000 A $ 354
15,001-20,000 B 482
20,001-26,000 C 591
26,001-30,000 D 746
30,001-35,000 E 874
35,001-40,000 F 1,024
40,001-45,000 G 1,125
45,001-50,000 H 1,272
50,001-54,999 I 1,393
55,000-60,000 J 1,571
60,001-65,000 K 1,716
65,001-70,000 L 1,870
70,001-75,000 M 2,204
75,001-80,000 N 2,271
(d) (1) In addition to the fees set forth in subdivision (a), a
Cargo Theft Interdiction Program Fee of three dollars ($3) shall be
paid at the time of initial or original registration or renewal of
registration of each motor vehicle subject to weight fees under this
section.
(2) This subdivision does not apply to vehicles used or maintained
for the transportation of persons for hire, compensation or profit,
and tow trucks.
(3) For vehicles registered under Article 4 (commencing with
Section 8050) of Chapter 4, the fee imposed under this subdivision
shall be apportioned as required for registration fees under that
article.
(4) Funds collected pursuant to the Cargo Theft Interdiction
Program shall not be proportionately reduced for each month and shall
be transferred to the Motor Carriers Safety Improvement Fund.
(e) Notwithstanding Section 42270 or any other provision of law,
of the moneys collected by the department under this section, one
hundred twenty-two dollars ($122) for each initial, original, and
renewal registration shall be reported monthly to the Controller, and
at the same time, deposited in the State Treasury to the credit of
the Motor Vehicle Account in the State Transportation Fund. All
other moneys collected by the department under this section shall be
deposited to the credit of the State Highway Account in the State
Transportation Fund. One hundred twenty-two dollars ($122) of the
fee imposed under this section shall not be proportionately reduced
for each month. For vehicles registered under Article 4 (commencing
with Section 8050) of Chapter 4, the fee shall be apportioned as
required for registration under that article.
(f) (1) The department, in consultation with the Department of the
California Highway Patrol, shall design and make available a set of
distinctive weight decals that reflect the declared gross combined
weight or gross operating weight reported to the department at the
time of initial registration, registration renewal, or when a weight
change is reported to the department pursuant to 9406.1. A new decal
shall be issued on each renewal or when the weight is changed
pursuant to Section 9406.1. The decal for a tow truck that is
subject to this section shall reflect the gross vehicle weight rating
or weight code.
(2) The department may charge a fee, not to exceed ten dollars
($10), for the department's actual cost of producing and issuing each
set of decals issued under paragraph (1).
(3) The weight decal shall be in sharp contrast to the background
and shall be of a size, shape, and color that is readily legible
during daylight hours from a distance of 50 feet.
(4) Each vehicle subject to this section shall display the weight
decal on both the right and left sides of the vehicle.
(5) A person may not display upon a vehicle a decal issued
pursuant to this subdivision that does not reflect the declared
weight reported to the department.
(6) Notwithstanding subdivision (e) or any other provision of law,
the moneys collected by the department under this subdivision shall
be deposited in the State Treasury to the credit of the Motor Vehicle
Account in the State Transportation Fund.
(7) This subdivision shall apply to vehicles subject to this
section at the time of an initial registration, registration renewal,
or reported weight change that occurs on or after July 1, 2004.
SEC. 349. Section 9400.3 of the Vehicle Code is amended to read:
9400.3. (a) In order to ensure that Chapter 973 of the Statutes
of 2000 is implemented as originally intended by the Legislature, the
department may not assess the Cargo Theft Interdiction Program fee
upon any commercial motor vehicle that has a declared gross vehicle
weight of less than 10,001 pounds.
(b) The department shall issue refunds of, or credits for, any
Cargo Theft Interdiction Program fee that is assessed upon a vehicle
that does not meet the minimum weights described in Section 9400.1 or
is a pickup truck or an electric vehicle.
SEC. 350. Section 9951 of the Vehicle Code is amended to read:
9951. (a) A manufacturer of a new motor vehicle sold or leased in
this state that is equipped with one or more recording devices
commonly referred to as "event data recorders (EDR)" or "sensing and
diagnostic modules (SDM)," shall disclose that fact in the owner's
manual for the vehicle.
(b) As used in this section, "recording device" means a device
that is installed by the manufacturer of the vehicle and does one or
more of the following, for the purpose of retrieving data after an
accident:
(1) Records how fast and in which direction the motor vehicle is
traveling.
(2) Records a history of where the motor vehicle travels.
(3) Records steering performance.
(4) Records brake performance, including, but not limited to,
whether brakes were applied before an accident.
(5) Records the driver's seatbelt status.
(6) Has the ability to transmit information concerning an accident
in which the motor vehicle has been involved to a central
communications system when an accident occurs.
(c) Data described in subdivision (b) that is recorded on a
recording device may not be downloaded or otherwise retrieved by a
person other than the registered owner of the motor vehicle, except
under one of the following circumstances:
(1) The registered owner of the motor vehicle consents to the
retrieval of the information.
(2) In response to an order of a court having jurisdiction to
issue the order.
(3) For the purpose of improving motor vehicle safety, including
for medical research of the human body's reaction to motor vehicle
accidents, and the identity of the registered owner or driver is not
disclosed in connection with that retrieved data. The disclosure of
the vehicle identification number (VIN) for the purpose of improving
vehicle safety, including for medical research of the human body's
reaction to motor vehicle accidents, does not constitute the
disclosure of the identity of the registered owner or driver.
(4) The data is retrieved by a licensed new motor vehicle dealer,
or by an automotive technician as defined in Section 9880.1 of the
Business and Professions Code, for the purpose of diagnosing,
servicing, or repairing the motor vehicle.
(d) A person authorized to download or otherwise retrieve data
from a recording device pursuant to paragraph (3) of subdivision (c),
may not release that data, except to share the data among the motor
vehicle safety and medical research communities to advance motor
vehicle safety, and only if the identity of the registered owner or
driver is not disclosed.
(e) (1) If a motor vehicle is equipped with a recording device
that is capable of recording or transmitting information as described
in paragraph (2) or (6) of subdivision (b) and that capability is
part of a subscription service, the fact that the information may be
recorded or transmitted shall be disclosed in the subscription
service agreement.
(2) Subdivision (c) does not apply to subscription services
meeting the requirements of paragraph (1).
(f) This section applies to all motor vehicles manufactured on or
after July 1, 2004.
SEC. 351. Section 11515.2 of the Vehicle Code is amended to read:
11515.2. (a) If an insurance company makes a total loss
settlement on a nonrepairable vehicle and takes possession of that
vehicle, either itself or through an agent, the insurance company, an
occupational licensee of the department authorized by the insurance
company, or a salvage pool authorized by the insurance company,
shall, within 10 days after receipt of title by the insurer, free and
clear of all liens, forward the properly endorsed certificate of
ownership or other evidence of ownership acceptable to the
department, the license plates, and a fee in the amount of fifteen
dollars ($15) to the department. An occupational licensee of the
department may submit a certificate of license plate destruction in
lieu of the actual license plate. The department, upon receipt of
the certificate of ownership or other evidence of title, the license
plates, and the fee, shall issue a nonrepairable vehicle certificate
for the vehicle.
(b) If the owner of a nonrepairable vehicle retains possession of
the vehicle, the insurance company shall notify the department of the
retention on a form prescribed by the department. The insurance
company shall also notify the insured or owner of the insured's or
owner's responsibility to comply with this subdivision. The owner
shall, within 10 days from the settlement of the loss, forward the
properly endorsed certificate of ownership or other evidence of
ownership acceptable to the department, the license plates, and a fee
in the amount of fifteen dollars ($15) to the department. The
department, upon receipt of the certificate of ownership or other
evidence of title, the license plates, and the fee, shall issue a
nonrepairable vehicle certificate for the vehicle.
(c) If a nonrepairable vehicle is not the subject of an insurance
settlement, the owner shall, within 10 days from the loss, forward
the properly endorsed certificate of ownership or other evidence of
ownership acceptable to the department, the license plates, and a fee
in the amount of fifteen dollars ($15) to the department.
(d) If a nonrepairable vehicle is not the subject of an insurance
settlement, a self-insurer, as defined in Section 16052, shall,
within 10 days of the loss, forward the properly endorsed certificate
of ownership or other evidence of ownership acceptable to the
department, the license plates, and a fee in the amount of fifteen
dollars ($15) to the department.
(e) Prior to sale or disposal of a nonrepairable vehicle, the
owner, owner's agent, or salvage pool shall obtain a properly
endorsed nonrepairable vehicle certificate and deliver it to the
purchaser within 10 days after payment in full for the nonrepairable
vehicle and shall also comply with Section 5900. The department
shall accept the endorsed nonrepairable vehicle certificate in lieu
of the certificate of ownership or other evidence of ownership when
accompanied by an application and other documents and fees,
including, but not limited to, the fees required by Section 9265, as
may be required by the department.
(f) This section does not apply to a vehicle that has been driven
or taken without the consent of the owner thereof, until the vehicle
has been recovered by the owner and only if the vehicle is a
nonrepairable vehicle.
(g) A nonrepairable vehicle certificate shall be conspicuously
labeled with the words "NONREPAIRABLE VEHICLE" across the front of
the certificate.
(h) A violation of subdivision (a), (b), (d), or (e) is a
misdemeanor, pursuant to Section 40000.11. Notwithstanding Section
40000.11, a violation of subdivision (c) is an infraction, except
that, if committed with intent to defraud, a violation of subdivision
(c) is a misdemeanor.
SEC. 352. Section 12509 of the Vehicle Code is amended to read:
12509. (a) Except as otherwise provided in subdivision (f) of
Section 12514, the department, for good cause, may issue an
instruction permit to any physically and mentally qualified person
who meets one of the following requirements and who applies to the
department for an instruction permit:
(1) Is age 15 years and 6 months or older and has successfully
completed approved courses in automobile driver education and driver
training as provided in paragraph (3) of subdivision (a) of Section
12814.6.
(2) Is age 15 years and 6 months or older and has successfully
completed an approved course in automobile driver education and is
taking driver training as provided in paragraph (3) of subdivision
(a) of Section 12814.6.
(3) Is age 15 years and 6 months and enrolled and participating in
an integrated driver education and training program as provided in
subparagraph (B) of paragraph (3) of subdivision (a) of Section
12814.6.
(4) Is over the age of 16 years and is applying for a restricted
driver's license pursuant to Section 12814.7.
(5) Is over the age of 17 years and 6 months.
(b) The applicant shall qualify for and be issued an instruction
permit within 12 months from the date of the application.
(c) An instruction permit issued pursuant to subdivision (a) shall
entitle the applicant to operate a vehicle, subject to the
limitations imposed by this section and any other provisions of law,
upon the highways for a period not exceeding 24 months from the date
of the application.
(d) Except as provided in Section 12814.6, any person, while
having in his or her immediate possession a valid permit issued
pursuant to paragraphs (1) to (3), inclusive, of subdivision (a), may
operate a motor vehicle, other than a motorcycle or a motorized
bicycle, when accompanied by, and under the immediate supervision of,
a California licensed driver with a valid license of the appropriate
class, 18 years of age or older whose driving privilege is not on
probation. Except as provided in subdivision (e), an accompanying
licensed driver at all times shall occupy a position within the
driver's compartment that would enable the accompanying licensed
driver to assist the person in controlling the vehicle as may be
necessary to avoid a collision and to provide immediate guidance in
the safe operation of the vehicle.
(e) Any person, while having in his or her immediate possession a
valid permit issued pursuant to paragraphs (1) to (3), inclusive, of
subdivision (a), who is age 15 years and 6 months or older and who
has successfully completed approved courses in automobile driver
education and driver training as provided in paragraph (3) of
subdivision (a) of Section 12814.6, and any person, while having in
his or her immediate possession a valid permit issued pursuant to
subdivision (a), who is age 17 years and 6 months or older, may, in
addition to operating a motor vehicle pursuant to subdivision (d),
also operate a motorcycle or a motorized bicycle, except that the
person shall not operate a motorcycle or a motorized bicycle during
hours of darkness, shall stay off any freeways that have full control
of access and no crossings at grade, and shall not carry any
passenger except an instructor licensed under Chapter 1 (commencing
with Section 11100) of Division 5 of this code or a qualified
instructor as defined in Section 41907 of the Education Code.
(f) Any person, while having in his or her immediate possession a
valid permit issued pursuant to paragraph (4) of subdivision (a), may
only operate a government-owned motor vehicle, other than a
motorcycle or a motorized bicycle, when taking the driver training
instruction administered by the California National Guard as required
by paragraph (2) of subdivision (a) of Section 12814.7.
(g) The department may also issue an instruction permit to a
person who has been issued a valid driver's license to authorize the
person to obtain driver training instruction and to practice that
instruction in order to obtain another class of driver's license or
an endorsement.
(h) The department may further restrict permits issued under
subdivision (a) as it may determine to be appropriate to assure the
safe operation of a motor vehicle by the permittee.
SEC. 353. Section 22100 of the Vehicle Code is amended to read:
22100. Except as provided in Section 22100.5 or 22101, the driver
of any vehicle intending to turn upon a highway shall do so as
follows:
(a) Right Turns. Both the approach for a right-hand turn and a
right-hand turn shall be made as close as practicable to the
right-hand curb or edge of the roadway except:
(1) Upon a highway having three marked lanes for traffic moving in
one direction that terminates at an intersecting highway
accommodating traffic in both directions, the driver of a vehicle in
the middle lane may turn right into any lane lawfully available to
traffic moving in that direction upon the roadway being entered.
(2) If a right-hand turn is made from a one-way highway at an
intersection, a driver shall approach the turn as provided in this
subdivision and shall complete the turn in any lane lawfully
available to traffic moving in that direction upon the roadway being
entered.
(3) Upon a highway having an additional lane or lanes marked for a
right turn by appropriate signs or markings, the driver of a vehicle
may turn right from any lane designated and marked for that turning
movement.
(b) Left Turns. The approach for a left turn shall be made as
close as practicable to the left-hand edge of the extreme left-hand
lane or portion of the roadway lawfully available to traffic moving
in the direction of travel of the vehicle and, when turning at
an intersection, the
left turn shall not be made before entering the intersection. After
entering the intersection, the left turn shall be made so as to leave
the intersection in a lane lawfully available to traffic moving in
that direction upon the roadway being entered, except that upon a
highway having three marked lanes for traffic moving in one direction
that terminates at an intersecting highway accommodating traffic in
both directions, the driver of a vehicle in the middle lane may turn
left into any lane lawfully available to traffic moving in that
direction upon the roadway being entered.
SEC. 354. Section 25803 of the Vehicle Code is amended to read:
25803. (a) All vehicles not otherwise required to be equipped
with headlamps, rear lights, or reflectors by this chapter shall, if
operated on a highway during darkness, be equipped with a lamp
exhibiting a red light visible from a distance of 500 feet to the
rear of the vehicle. In addition, all of these vehicles operated
alone or as the first vehicle in a combination of vehicles, shall be
equipped with at least one lighted lamp exhibiting a white light
visible from a distance of 500 feet to the front of the vehicle.
(b) A vehicle shall also be equipped with an amber reflector on
the front near the left side and a red reflector on the rear near the
left side. The reflectors shall be mounted on the vehicle not lower
than 16 inches nor higher than 60 inches above the ground and so
designed and maintained as to be visible during darkness from all
distances within 500 feet from the vehicle when directly in front of
a motor vehicle displaying lawful lighted headlamps undimmed.
(c) In addition, if a vehicle described in subdivision (a) or the
load thereon has a total outside width in excess of 100 inches there
shall be displayed during darkness at the left outer extremity at
least one amber light visible under normal atmospheric conditions
from a distance of 500 feet to the front, sides, and rear. At all
other times there shall be displayed at the left outer extremity a
solid red or fluorescent orange flag or cloth not less than 12 inches
square.
SEC. 355. Section 31032.1 of the Water Code is amended to read:
31032.1. A district may fix, as an alternative to the charge
prescribed by Section 31031, in each fiscal year, water standby or
availability assessments of not to exceed thirty dollars ($30) per
acre per year for each acre of land, or thirty dollars ($30) per year
for each parcel of land less than an acre within the district to
which water is made available for any purpose by the district,
whether the water is actually used or not. The board of directors of
a district that fixes the assessment may establish schedules varying
the assessment according to the land uses and the degree of
availability or quantity of use of water to the affected lands, and
may restrict the assessment to lands lying within one or more
improvement districts within the district.
A district may elect to have the assessments for the fiscal year
collected on the tax roll in the same manner, by the same persons and
at the same time as, together with and not separately from, its
general taxes. In that event, it shall cause a written report to be
prepared and filed with the secretary which report shall contain a
description of each parcel of real property and the amount of the
assessment for each parcel for the year.
SEC. 356. Section 34620 of the Vehicle Code is amended to read:
34620. (a) Except as provided in subdivision (b) and Section
34622, no motor carrier of property shall operate a commercial motor
vehicle on any public highway in this state, unless it has complied
with Section 34507.5 and has registered with the department its
carrier identification number authorized or assigned thereunder, and
holds a valid motor carrier permit issued to that motor carrier by
the department. The department shall issue a motor carrier permit
upon the carrier's written request, compliance with Sections 34507.5,
34630, 34640, and subdivisions (e) and (h) of Section 34501.12, for
motor carriers listed in that section, and the payment of the fee
required by this chapter.
(b) No person shall contract with, or otherwise engage the
services of, a motor carrier of property, unless that motor carrier
holds a valid motor carrier of property permit issued by the
department. No motor carrier of property shall contract or
subcontract with, or otherwise engage the services of, another motor
carrier of property, until the contracted motor carrier of property
provides certification in the manner prescribed by this section, of
compliance with subdivision (a). This certification shall be
completed by the contracted motor carrier of property and shall
include a provision requiring the contracted motor carrier of
property to immediately notify the person to whom they are contracted
if the contracted motor carrier of property's permit is suspended or
revoked. A copy of the contracted motor carrier of property's
permit shall accompany the required certificate. The Department of
the California Highway Patrol shall, by regulation, prescribe the
format for the certificate and may make available an optional
specific form for that purpose. The certificate, or a copy thereof,
shall be maintained by each involved party for the duration of the
contract or period of service plus two years, and shall be presented
for inspection at the location designated by each carrier under
Section 34501.10, immediately upon the request of an authorized
employee of the Department of the California Highway Patrol.
SEC. 357. Section 35401.7 of the Vehicle Code is amended to read:
35401.7. (a) The limitations of access specified in subdivision
(d) of Section 35401.5 do not apply to licensed carriers of livestock
when those carriers are directly en route to or from a point of
loading or unloading of livestock on those portions of State Highway
Route 101 located in the Counties of Del Norte, Humboldt, and
Mendocino from its junction with State Highway Route 1 near Leggett
north to the Oregon border, if the travel is necessary and incidental
to the shipment of the livestock.
(b) The exemption allowed under this section does not apply unless
both of the following conditions are met:
(1) The length of the truck tractor, in combination with the
semitrailer used to transport the livestock, does not exceed a total
of 70 feet.
(2) The distance from the kingpin to the rearmost axle of the
semitrailer does not exceed 40 feet.
(c) The exemption allowed under this section does not apply to
travel conducted on the day prior to, or on the day of, any federally
recognized holiday.
(d) The Department of the California Highway Patrol, in
consultation with the Department of Transportation and in accordance
with recommendations from the Department of the California Highway
Patrol's study issued on May 1, 2003, of the effects of the statutory
exemption, shall continue the comprehensive study on the effect that
the exemption provided under this section has on the public safety
during the extended effective period of the exemption. The findings
of this additional study shall be reported to the Legislature on or
before January 1, 2006.
(e) 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. 358. Section 1552 of the Water Code is amended to read:
1552. The money in the Water Rights Fund is available for
expenditure, upon appropriation by the Legislature, for the following
purposes:
(a) For expenditure by the State Board of Equalization in the
administration of this chapter and the Fee Collection Procedures Law
(Part 30 (commencing with Section 55001) of Division 2 of the Revenue
and Taxation Code) in connection with any fee or expense subject to
this chapter.
(b) For the payment of refunds, pursuant to Part 30 (commencing
with Section 55001) of Division 2 of the Revenue and Taxation Code,
of fees or expenses collected pursuant to this chapter.
(c) For expenditure by the board for the purposes of carrying out
this division, Division 1 (commencing with Section 100), Part 2
(commencing with Section 10500) of Division 6, and Article 7
(commencing with Section 13550) of Chapter 7 of Division 7.
(d) For expenditures by the board for the purposes of carrying out
Sections 13160 and 13160.1 in connection with activities involving
hydroelectric power projects subject to licensing by the Federal
Energy Regulatory Commission.
(e) For expenditures by the board for the purposes of carrying out
Sections 13140 and 13170 in connection with plans and policies that
address the diversion or use of water.
SEC. 359. Section 12749.95 of the Water Code, as added by Chapter
730 of the Statutes of 2003, is amended and renumbered to read:
12749.97. Notwithstanding Sections 12749.93 and 12749.94, it is
the intent of the Legislature that no funds be appropriated for state
cooperation in the Murrieta Creek Flood Control Project before July
1, 2013.
SEC. 360. Section 13269 of the Water Code is amended to read:
13269. (a) (1) On and after January 1, 2000, the provisions of
subdivisions (a) and (c) of Section 13260, subdivision (a) of Section
13263, or subdivision (a) of Section 13264 may be waived by the
state board or a regional board as to a specific discharge or type of
discharge if the state board or a regional board determines, after
any necessary state board or regional board meeting, that the waiver
is consistent with any applicable state or regional water quality
control plan and is in the public interest. The state board or a
regional board shall give notice of any necessary meeting by
publication pursuant to Section 11125 of the Government Code.
(2) A waiver may not exceed five years in duration, but may be
renewed by the state board or a regional board. The waiver shall be
conditional and may be terminated at any time by the state board or a
regional board. The conditions of the waiver shall include, but
need not be limited to, the performance of individual, group, or
watershed-based monitoring, except as provided in paragraph (3).
Monitoring requirements shall be designed to support the development
and implementation of the waiver program, including, but not limited
to, verifying the adequacy and effectiveness of the waiver's
conditions. In establishing monitoring requirements, the regional
board may consider the volume, duration, frequency, and constituents
of the discharge; the extent and type of existing monitoring
activities, including, but not limited to, existing watershed-based,
compliance, and effectiveness monitoring efforts; the size of the
project area; and other relevant factors. Monitoring results shall
be made available to the public.
(3) The state board or a regional board may waive the monitoring
requirements described in this subdivision for discharges that it
determines do not pose a significant threat to water quality.
(4) (A) The state board or a regional board may include as a
condition of a waiver the payment of an annual fee established by the
state board in accordance with subdivision (f) of Section 13260.
(B) Funds generated by the payment of the fee shall be deposited
in the Waste Discharge Permit Fund for expenditure, upon
appropriation by the Legislature, by the state board or appropriate
regional board for the purpose of carrying out activities limited to
those necessary to establish and implement the waiver program
pursuant to this section. The total amount of annual fees collected
pursuant to this section shall not exceed the costs of those
activities necessary to establish and implement waivers of waste
discharge requirements pursuant to this section.
(C) In establishing the amount of a fee that may be imposed on
irrigated agriculture operations pursuant to this section, the state
board shall consider relevant factors, including, but not limited to,
all of the following:
(i) The size of the operations.
(ii) Any compliance costs borne by the operations pursuant to
state and federal water quality regulations.
(iii) Any costs associated with water quality monitoring performed
or funded by the operations.
(iv) Participation in a watershed management program approved by
the applicable regional board.
(D) In establishing the amount of a fee that may be imposed on
silviculture operations pursuant to this section, the state board
shall consider relevant factors, including, but not limited to, all
of the following:
(i) The size of the operations.
(ii) Any compliance costs borne by the operations pursuant to
state and federal water quality regulations.
(iii) Any costs associated with water quality monitoring performed
or funded by the operations.
(iv) The average annual number of timber harvest plans proposed by
the operations.
(5) The state board or a regional board shall give notice of the
adoption of a waiver by publication within the affected county or
counties as set forth in Section 6061 of the Government Code.
(b) (1) A waiver in effect on January 1, 2000, shall remain valid
until January 1, 2003, unless the regional board terminates that
waiver prior to that date. All waivers that were valid on January 1,
2000, and granted an extension until January 1, 2003, and not
otherwise terminated, may be renewed by a regional board in five-year
increments.
(2) Notwithstanding paragraph (1), a waiver for an onsite sewage
treatment system that is in effect on January 1, 2002, shall remain
valid until June 30, 2004, unless the regional board terminates the
waiver prior to that date. Any waiver for onsite sewage treatment
systems adopted or renewed after June 30, 2004, shall be consistent
with the applicable regulations or standards for onsite sewage
treatment systems adopted or retained in accordance with Section
13291.
(c) Upon notification of the appropriate regional board of the
discharge or proposed discharge, except as provided in subdivision
(d), the provisions of subdivisions (a) and (c) of Section 13260,
subdivision (a) of Section 13263, and subdivision (a) of Section
13264 do not apply to a discharge resulting from any of the following
emergency activities:
(1) Immediate emergency work necessary to protect life or property
or immediate emergency repairs to public service facilities
necessary to maintain service as a result of a disaster in a
disaster-stricken area in which a state of emergency has been
proclaimed by the Governor pursuant to Chapter 7 (commencing with
Section 8550) of Division 1 of Title 2 of the Government Code.
(2) Emergency projects undertaken, carried out, or approved by a
public agency to maintain, repair, or restore an existing highway, as
defined in Section 360 of the Vehicle Code, except for a highway
designated as an official state scenic highway pursuant to Section
262 of the Streets and Highways Code, within the existing
right-of-way of the highway, damaged as a result of fire, flood,
storm, earthquake, land subsidence, gradual earth movement, or
landslide within one year of the damage. This paragraph does not
exempt from this section any project undertaken, carried out, or
approved by a public agency to expand or widen a highway damaged by
fire, flood, storm, earthquake, land subsidence, gradual earth
movement, or landslide.
(d) Subdivision (c) is not a limitation of the authority of a
regional board under subdivision (a) to determine that any provision
of this division shall not be waived or to establish conditions of a
waiver. Subdivision (c) shall not apply to the extent that it is
inconsistent with any waiver or other order or prohibition issued
under this division.
(e) The regional boards and the state board shall require
compliance with the conditions pursuant to which waivers are granted
under this section.
(f) Prior to renewing any waiver for a specific type of discharge
established under this section, the state board or a regional board
shall review the terms of the waiver policy at a public hearing. At
the hearing, the state board or a regional board shall determine
whether the discharge for which the waiver policy was established
should be subject to general or individual waste discharge
requirements.
SEC. 361. Section 13368 of the Water Code is amended to read:
13368. (a) The San Diego Bay Advisory Committee for Ecological
Assessment is hereby established.
(b) The committee shall prepare a report on all of the following:
(1) An evaluation of existing and historic data and trends in the
overall health of San Diego Bay, including, but not limited to,
trends in pollutant levels and trends in the numbers and diversity of
species.
(2) The identification of habitat enhancement projects in the
Integrated Natural Resources Management Plan for San Diego Bay that
may be necessary to provide increased population and diversity for
species within San Diego Bay.
(3) An assessment of, and recommendations for, including
feasibility and economic practicability of, the best available
technology that is economically available and the best conventional
pollution control technology related to stormwater treatment systems
meeting toxicity standards.
(c) For the purposes of carrying out subdivision (b), the
committee shall consider and make use of the Integrated Natural
Resources Management Plan for San Diego Bay prepared by the United
States Navy in conjunction with numerous stakeholders.
(d) Upon the request of the United States Navy, the committee may
provide oversight and assistance in the Navy's development of
alternative acute toxicity effluent limitations for discharges of
stormwater runoff associated with industrial activity, as authorized
by the San Diego Regional Water Quality Control Board, in approval of
the National Pollutant Discharge Elimination System permits for
Naval Base Point Loma, Naval Base San Diego, and Naval Base Coronado.
(e) (1) The committee shall be chaired by the Chairperson of the
San Diego Unified Port District. The following entities may each
appoint one representative to the committee:
(A) The San Diego City Council.
(B) The City of Chula Vista.
(C) The City of Coronado.
(D) The City of Imperial Beach.
(E) The City of National City.
(F) The Environmental Health Coalition.
(G) The San Diego Baykeeper.
(H) The San Diego Audubon Society.
(I) The San Diego Chapter of the Surfrider Foundation.
(J) The Sierra Club.
(K) The San Diego Port Tenants Association.
(L) The Industrial Environmental Association.
(M) The San Diego Convention and Visitors Bureau.
(N) Scripps Institute of Oceanography.
(O) City of San Diego Metropolitan Wastewater Joint Powers
Authority.
(P) The California Coastal Commission.
(2) The San Diego County Board of Supervisors may appoint two
representatives to the committee. One of the persons appointed
pursuant to this paragraph shall be a recreational boatowner who
resides in San Diego County.
(3) The following entities may each appoint one nonvoting member
to the committee:
(A) The United States Navy.
(B) The Department of Fish and Game.
(C) The United States Fish and Wildlife Service.
(D) The National Marine Fisheries Service.
(E) The University of California and California State University
at San Diego may each appoint one nonvoting member.
(4) The San Diego Regional Water Quality Control Board is
encouraged to participate in the proceedings of the committee.
(f) Committee members may not be compensated for their services or
be reimbursed for any expenses incurred in the performance of their
duties pursuant to this chapter.
(g) (1) Staffing for the committee shall be provided by the San
Diego Unified Port District at the direction of the committee. The
committee may accept grant funds and contract for professional
services to carry out this chapter. The San Diego Unified Port
District shall administer the grants made to the committee.
(2) Not more than 3 percent of the total amount of money received
by the committee may be used to pay costs incurred in connection with
the administration of the grants.
(h) The report required by subdivision (b) shall be submitted, on
or before December 31, 2005, to all of the following:
(1) The Chairpersons of the Assembly Committee on Water, Parks and
Wildlife, the Assembly Committee on Environmental Safety and Toxic
Materials, the Senate Committee on Environmental Quality, and the
Senate Committee on Agriculture and Water Resources.
(2) The San Diego Regional Water Quality Control Board.
(3) The state board.
(4) The California Coastal Commission.
SEC. 362. Section 13387 of the Water Code is amended to read:
13387. (a) Any person who knowingly or negligently does any of
the following is subject to criminal penalties as provided in
subdivisions (b), (c), and (d):
(1) Violates Section 13375 or 13376.
(2) Violates any waste discharge requirements or dredged or fill
material permit issued pursuant to this chapter or any water quality
certification issued pursuant to Section 13160.
(3) Violates any order or prohibition issued pursuant to Section
13243 or 13301, if the activity subject to the order or prohibition
is subject to regulation under this chapter.
(4) Violates any requirement of Section 301, 302, 306, 307, 308,
318, 401, or 405 of the Clean Water Act (33 U.S.C. Sec. 1311, 1312,
1316, 1317, 1318, 1328, 1341, or 1345), as amended.
(5) Introduces into a sewer system or into a publicly owned
treatment works any pollutant or hazardous substances that the person
knew or reasonably should have known could cause personal injury or
property damage.
(6) Introduces any pollutant or hazardous substance into a sewer
system or into a publicly owned treatment works, except in accordance
with any applicable pretreatment requirements, which pollutant or
hazardous substance causes the treatment works to violate waste
discharge requirements.
(b) Any person who negligently commits any of the violations set
forth in subdivision (a) shall, upon conviction, be punished by a
fine of not less than five thousand dollars ($5,000), nor more than
twenty-five thousand dollars ($25,000), for each day in which the
violation occurs, or by imprisonment for not more than one year in a
county jail, or both. If a conviction of a person is for a violation
committed after a first conviction of the person under this
subdivision, subdivision (c), or subdivision (d), punishment shall be
by a fine of not more than fifty thousand dollars ($50,000) for each
day in which the violation occurs, or by imprisonment of not more
than two years, or by both.
(c) Any person who knowingly commits any of the violations set
forth in subdivision (a) shall, upon conviction, be punished by a
fine of not less than five thousand dollars ($5,000), nor more than
fifty thousand dollars ($50,000), for each day in which the violation
occurs, or by imprisonment in the state prison for not more than
three years, or by both. If a conviction of a person is for a
violation committed after a first conviction of the person under this
subdivision or subdivision (d), punishment shall be by a fine of not
more than one hundred thousand dollars ($100,000) for each day in
which the violation occurs, or by imprisonment in the state prison of
not more than six years, or by both.
(d) (1) Any person who knowingly commits any of the violations set
forth in subdivision (a), and who knows at the time that the person
thereby places another person in imminent danger of death or serious
bodily injury, shall, upon conviction, be subject to a fine of not
more than two hundred fifty thousand dollars ($250,000) or
imprisonment in the state prison of not more than 15 years, or both.
A person that is an organization shall, upon conviction under this
subdivision, be subject to a fine of not more than one million
dollars ($1,000,000). If a conviction of a person is for a violation
committed after a first conviction of the person under this
subdivision, the maximum punishment shall be a fine of not more than
five hundred thousand dollars ($500,000) or imprisonment in the state
prison of not more than 30 years, or both. A person that is an
organization shall, upon conviction for a violation committed after a
first conviction of the person under this subdivision, be subject to
a fine of not more than two million dollars ($2,000,000). Any fines
imposed pursuant to this subdivision shall be in addition to any
fines imposed pursuant to subdivision (c).
(2) In determining whether a defendant who is an individual knew
that the defendant's conduct placed another person in imminent danger
of death or serious bodily injury, the defendant is responsible only
for actual awareness or actual belief that the defendant possessed,
and knowledge possessed by a person other than the defendant, but not
by the defendant personally, cannot be attributed to the defendant.
(e) Any person who knowingly makes any false statement,
representation, or certification in any record, report, plan, notice
to comply, or other document filed with a regional board or the state
board, or who knowingly falsifies, tampers with, or renders
inaccurate any monitoring device or method required under this
division shall be punished by a fine of not more than twenty-five
thousand dollars ($25,000), or by imprisonment in the state prison
for not more than two years, or by both. If a conviction of a person
is for a violation committed after a first conviction of the person
under this subdivision, punishment shall be by a fine of not more
than twenty-five thousand dollars ($25,000) per day of violation, or
by imprisonment in the state prison of not more than four years, or
by both.
(f) For purposes of this section, a single operational upset which
leads to simultaneous violations of more than one pollutant
parameter shall be treated as a single violation.
(g) For purposes of this section, "organization," "serious bodily
injury," "person," and "hazardous substance" shall have the same
meaning as in Section 309(c) of the Clean Water Act (33 U.S.C. Sec.
1319(c)), as amended.
(h) (1) Subject to paragraph (2), funds collected pursuant to this
section shall be deposited in the State Water Pollution Cleanup and
Abatement Account.
(2) (A) Notwithstanding any other provision of law, fines
collected for a violation of a water quality certification in
accordance with paragraph (2) of subdivision (a) or for a violation
of Section 401 of the
Clean Water Act (33 U.S.C. Sec. 1341) in accordance with paragraph
(4) of subdivision (a) shall be deposited in the Water Discharge
Permit Fund and separately accounted for in that fund.
(B) The funds described in subparagraph (A) shall be expended by
the state board, upon appropriation by the Legislature, to assist
regional boards, and other public agencies with authority to clean up
waste or abate the effects of the waste, in cleaning up or abating
the effects of the waste on waters of the state, or for the purposes
authorized in Section 13443.
SEC. 363. Section 13610 of the Water Code is amended to read:
13610. Unless the context otherwise requires, the definitions set
forth in this section govern the construction of this chapter:
(a) "Perchlorate" means all perchlorate-containing compounds,
including ammonium, potassium, magnesium, and sodium perchlorate not
found on or after January 1, 2004, in unused military munitions as
defined in Section 260.10 of Title 40 of the Code of Federal
Regulations.
(b) Subject to Section 13610.5, "perchlorate storage facility"
means a facility, not including a military munitions storage facility
within a military installation that meets the Department of Defense
Explosive Safety Board requirements set forth in DOD 6055.9-STD, that
stores over 500 pounds of perchlorate in any calendar year.
(c) For the purposes of this section, "military munitions storage
facility" does not include the entire military installation within
which the military munitions storage facility is located.
SEC. 364. Section 13611 of the Water Code is amended to read:
13611. (a) The notification required by Section 13611.5 does not
apply to a discharge that is in compliance with this division, or to
a water agency conveying water in compliance with all state and
federal drinking water standards.
(b) Any person who fails to provide the notifications required by
Section 13271 relating to perchlorate or by Section 13611.5 may be
civilly liable in accordance with subdivision (c).
(c) (1) Civil liability may be administratively imposed by a
regional board in accordance with Article 2.5 (commencing with
Section 13323) of Chapter 5 for a violation described in subdivision
(b) in an amount that does not exceed one thousand dollars ($1,000)
for each day in which the violation occurs.
(2) Civil liability may be imposed by the superior court in
accordance with Article 5 (commencing with Section 11350) and Article
6 (commencing with Section 13360) of Chapter 5 for a violation
described in subdivision (b) in an amount that is not less than five
hundred dollars ($500), or more than five thousand dollars ($5,000),
for each day in which the violation occurs.
(d) Notwithstanding Section 13441, all money collected by the
state pursuant to this section shall be available to the state board
upon appropriation by the Legislature.
SEC. 365. Section 13611.5 of the Water Code is amended to read:
13611.5. (a) On or before January 1, 2005, and annually
thereafter, unless the owner or operator has met the alternative
compliance requirements of subdivision (b), an owner or operator of a
storage facility that has stored in any calendar year since January
1, 1950, over 500 pounds of perchlorate shall submit to the state
board, to the extent feasible, all of the following information:
(1) The volume of perchlorate stored each year.
(2) The method of storage.
(3) The location of storage. To the extent authorized by federal
law, in the case of a perchlorate storage facility under the control
of the Armed Forces of the United States, "location" means the name
and address of the property within which the perchlorate storage
facility is located.
(4) Copies of documents relating to any monitoring undertaken for
potential leaks into the water bodies of the state.
(b) The owner or operator of a storage facility that has stored in
any calendar year since January 1, 1950, over 500 pounds of
perchlorate, is in compliance with this section if both of the
following conditions are met:
(1) The owner or operator has provided substantially similar
information as required pursuant to subdivision (a) to a state,
local, or federal agency pursuant to any of the following:
(A) An order issued by a regional board pursuant to Chapter 5
(commencing with Section 13300) of Division 7.
(B) An order, consent order, or consent decree issued or entered
into by the Department of Toxic Substances Control pursuant to
Chapter 6.8 (commencing with Section 25300) of Division 20 of the
Health and Safety Code.
(C) An order, consent order, or consent decree issued or entered
into by the United States Environmental Protection Agency pursuant to
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. Sec. 9601 et seq.).
(D) The requirement under Section 25504.1 of the Health and Safety
Code, as added by Assembly Bill 826 of the 2003-04 Regular Session.
(2) The owner or operator, on or before January 1, 2005, and
annually thereafter, notifies the state board of the governmental
entity to which the information is provided and the state board
determines the information supplied is substantially similar as the
information required to be reported pursuant to subdivision (a). In
the case of any information submitted to a federal or local agency,
the state board may require the owner or operator, in addition, to
submit that information to the state board if the state board
determines that the information is not otherwise reasonably available
to the state board.
(c) This section shall not be administered or implemented if the
state board receives notification from the Secretary for
Environmental Protection pursuant to Section 13613 that the Secretary
for Environmental Protection has established a database that is able
to receive perchlorate inventory information.
(d) Information on perchlorate storage need only be submitted
pursuant to this section one time, unless information originally
submitted pursuant to this section has changed.
SEC. 366. Section 36153 of the Water Code is amended to read:
36153. In addition to any and all other provisions of this
division and any other applicable laws for the issuance of general
obligation bonds by a district, general obligation bonds may be
issued by a district if the proceeds are to be used to construct
facilities in compliance with an order adopted by the State
Department of Health Services pursuant to Chapter 4 (commencing with
Section 116275) of Part 12 of Division 104 of the Health and Safety
Code. Bonds issued pursuant to this section shall be issued by a
district as otherwise provided in this division without regard to the
election procedures of Chapter 3 (commencing with Section 35150) of
Part 4 and shall be secured by unlimited ad valorem assessments on
land in the district without regard to any limitations set forth in
Chapter 3 (commencing with Section 2201) of Part 4 of Division 1 of
the Revenue and Taxation Code. If 50 percent or more of the voters
within the district or if the owners of 50 percent or more of the
assessed valuation within the district submit written protests to the
district secretary within the 30 days after the date the board
adopts the resolution authorizing the issuance of the bonds, the
proceedings for the issuance of bonds pursuant to this section shall
be terminated and no further proceedings shall be taken pursuant to
this section for a period of at least one year.
SEC. 367. Section 72303 of the Water Code is amended to read:
72303. Any district, the territory, or any portion thereof, of
which is included within a metropolitan water district, shall be
entitled, without penalty or sanction from the metropolitan water
district, to purchase or acquire water to serve any territory within
the district, whether or not the territory is within the metropolitan
water district, from the following specified sources without the
water being deemed an acquisition or purchase of water from the State
Water Resources development system:
(a) Recycled water, as defined in Section 13050, regardless of the
source of the water prior to its use and recycling.
(b) Water produced incidentally to the exercise of bona fide
property rights to divert or pump local waters, regardless of the
origin of the waters.
SEC. 368. Section 78688 of the Water Code is amended to read:
78688. Nothing in this division diminishes, or otherwise affects,
the requirements of the California Environmental Quality Act
(Division 13 (commencing with Section 21000) of the Public Resources
Code) or the National Environmental Policy Act of 1969 (42 U.S.C.
Sec. 4321 et seq.).
SEC. 369. Section 79532 of the Water Code is amended to read:
79532. (a) Funds made available pursuant to subdivision (b) of
Section 79530 shall be administered in accordance with this section.
(b) (1) Grant funds appropriated for the purposes of subdivision
(b) of Section 79530 shall be awarded on a competitive basis.
(2) The department shall consolidate the application process
required to implement the grant program described in this section.
(c) For the purposes of this chapter, "southern California water
agencies" means water agencies with service areas entirely or partly
in one or more of the following counties: San Diego, Imperial,
Riverside, Orange, Los Angeles, San Bernardino, Santa Barbara, or
Ventura.
(d) Grants may be awarded to southern California water agencies
for eligible projects undertaken by one or more southern California
water agencies and other entities.
(e) A project funded by a grant made pursuant to subdivision (b)
of Section 79530 shall meet both of the following requirements:
(1) The project will assist the grantee to meet safe drinking
water standards.
(2) The project will assist in meeting the state's commitment to
reduce Colorado River water use to 4.4 million acre-feet per year.
(f) In the development of criteria for the grants awarded pursuant
to this section, the State Department of Health Services shall
consult with the Office of Environmental Health Hazard Assessment for
the purposes of developing a program that gives priority to projects
that reduce public and environmental exposure to contaminants that
pose the most significant health risks, and that will bring water
systems into compliance with safe drinking water standards. These
include, but are not limited to, projects that address public
exposure to contaminants for which safe drinking water standards have
been established, including arsenic, disinfection byproducts and
uranium. Projects to address emerging contaminants, including
perchlorate, chromium 6, and endocrine disrupters shall also be given
priority.
SEC. 370. Section 79561.5 of the Water Code is amended to read:
79561.5. (a) Notwithstanding any other provision of law, of the
funds appropriated to the department for the purposes of Sections
79560 and 79560.1, the department shall allocate the sum of not less
than twenty million dollars ($20,000,000) to competitive grants for
groundwater management and recharge projects. The department shall
not allocate funds pursuant to this section unless it determines that
the allocation is consistent with this division, as approved by the
voters at the November 5, 2002, statewide general election.
(b) It is the intent of the Legislature that these funds be used
to enhance water supply in rapidly growing areas of this state with
limited access to imported water supplies.
(c) Not more than 50 percent of the grants pursuant to this
section shall be for projects in northern California. For projects
in southern California, the department shall give preference to
projects outside the service area of the Metropolitan Water District
of Southern California that are infill projects within one mile of
established residential and commercial development.
(d) As used in this section, the term "rapidly growing areas"
means counties located in southern California where the county
population increased by 2.4 percent or more between January 1, 2002,
and January 1, 2003.
SEC. 371. Section 779 of the Welfare and Institutions Code is
amended to read:
779. The court committing a ward to the Youth Authority may
thereafter change, modify, or set aside the order of commitment. Ten
days' notice of the hearing of the application therefor shall be
served by United States mail upon the Director of the Youth
Authority. In changing, modifying, or setting aside the order of
commitment, the court shall give due consideration to the effect
thereof upon the discipline and parole system of the Youth Authority
or of the correctional school in which the ward may have been placed
by the Youth Authority. Except as provided in this section, nothing
in this chapter shall be deemed to interfere with the system of
parole and discharge now or hereafter established by law, or by rule
of the Youth Authority, for the parole and discharge of wards of the
juvenile court committed to the Youth Authority, or with the
management of any school, institution, or facility under the
jurisdiction of the Youth Authority. Except as provided in this
section, this chapter does not interfere with the system of transfer
between institutions and facilities under the jurisdiction of the
Youth Authority. This section does not limit the authority of the
court to change, modify, or set aside an order of commitment after a
noticed hearing and upon a showing of good cause that the Youth
Authority is unable to, or failing to, provide treatment consistent
with Section 734.
However, before any inmate of a correctional school may be
transferred to a state hospital, he or she shall first be returned to
a court of competent jurisdiction and, after hearing, may be
committed to a state hospital for the insane in accordance with law.
SEC. 372. Section 1000.7 of the Welfare and Institutions Code is
amended to read:
1000.7. As used in this chapter, "Youth Authority," "authority,"
and "the authority" mean and refer to the Department of the Youth
Authority, and "board" means and refers to the Youth Authority Board.
SEC. 373. Section 1703 of the Welfare and Institutions Code is
amended to read:
1703. As used in this chapter the following terms have the
following meanings:
(a) "Public offenses" means public offenses as that term is
defined in the Penal Code.
(b) "Court" includes any official authorized to impose sentence
for a public offense.
(c) "Youth Authority," "Authority," "authority," or "department"
means the Department of the Youth Authority.
(d) "Board" or "board" means the Youth Authority Board.
(e) The masculine pronoun includes the feminine.
SEC. 374. Section 5657 of the Welfare and Institutions Code is
amended to read:
5657. (a) The private organization or private nonprofit
organization awarded a contract with the county agency to supply
mental health services under this part shall provide an invoice to
the county for the amount of the payment due within 60 days of the
date the services are supplied, as long as that date is at least 60
days from the date the county has received distribution of mental
health funds from the state.
(b) Any county that, without reasonable cause, fails to make any
payment within 60 days of the required payment date to a private
organization or private nonprofit organization awarded a contract
with the county agency to supply mental health services under this
part, for an undisputed claim which was properly executed by the
claimant and submitted to the county, shall pay a penalty of 0.10
percent of the amount due, per day, from the 61st day after the
required payment date.
(c) For the purposes of this section, "required payment date"
means any of the following:
(1) The date on which payment is due under the terms of the
contract.
(2) If a specific date is not established by contract, the date
upon which an invoice is received, if the invoice specifies payment
is due upon receipt.
(3) If a specific date is not established by contract or invoice,
60 days after receipt of a proper invoice for the amount of the
payment due.
(d) The penalty assessed under this section shall not be paid from
the Bronzan-McCorquodale program funds or county matching funds.
The penalty provisions of this section shall not apply to the late
payment of any federal funds or Medi-Cal funds.
SEC. 375. Section 7200.06 of the Welfare and Institutions Code is
amended to read:
7200.06. (a) Of the 1,362 licensed beds at Napa State Hospital,
at least 20 percent of these beds shall be available in any given
fiscal year for use by counties for contracted services. Of the
remaining beds, in no case shall the population of patients whose
placement has been required pursuant to the Penal Code exceed 980.
(b) After construction of the perimeter security fence is
completed at Napa State Hospital, no patient whose placement has been
required pursuant to the Penal Code shall be placed outside the
perimeter security fences, with the exception of placements in the
General Acute Care and Skilled Nursing Units. The State Department of
Mental Health shall ensure that appropriate security measures are in
place for the general acute care and skilled nursing units.
(c) Any alteration to the security perimeter structure or policies
shall be made in conjunction with representatives of the City of
Napa, the County of Napa, and local law enforcement agencies.
SEC. 376. Section 10063 of the Welfare and Institutions Code is
amended to read:
10063. (a) Notwithstanding any other provision of law, the name
of the program provided for pursuant to Chapter 2 (commencing with
Section 11200) is hereby changed to the California Work Opportunity
and Responsibility to Kids program, referred to as CalWORKs.
(b) Any reference to the Aid to Families with Dependent Children
Program, Family Group and Unemployment program, and the Greater
Avenues for Independence program shall be deemed to refer to the
CalWORKs program.
SEC. 377. Section 11025 of the Welfare and Institutions Code is
amended to read:
11025. (a) The State Department of Social Services and the State
Department of Health Services shall utilize the records of the
Franchise Tax Board to match unearned income against reported income
of applicants for and recipients of aid or public social services
under this division. The matching information shall then be
forwarded to the appropriate county welfare department for use in
determining the eligibility of, and proper grant amount for,
applicants for, and recipients of, aid or public social services
under this division. Any and all documents and records that result
from the matching of records with the Franchise Tax Board shall be
subject to the confidentiality requirements of Section 10850.
(b) This section shall not be construed to supersede the
requirements and protections in the California Right to Financial
Privacy Act under Chapter 20 (commencing with Section 7460) of
Division 7 of Title 1 of the Government Code in obtaining information
in possession of any financial institution.
(c) This section shall be implemented only to the extent it is
funded in the annual Budget Act.
SEC. 378. Section 11052.5 of the Welfare and Institutions Code is
amended to read:
11052.5. No applicant shall be granted public assistance under
Chapters 2 (commencing with Section 11200) and 5 (commencing with
Section 13000) of this part until he or she is first personally
interviewed by the office of the county department or state staff for
patients in state hospitals. The personal interview shall be
conducted promptly following the application for assistance. If an
applicant is incapable of acting in his or her own behalf, the county
department shall verify this fact by personal contact with the
applicant before aid is authorized. As used in this section, the
term public assistance does not include health care as provided by
Chapter 7 (commencing with Section 14000).
The interview conducted pursuant to this section shall occur
within seven days after the time of application unless there are
extenuating circumstances that justify further delay.
SEC. 379. Section 11373 of the Welfare and Institutions Code is
amended to read:
11373. Two years after the implementation date of this article,
and again five years after the implementation date of this article,
the department shall report to the Legislature information on the
outcomes of the Kin-GAP Program, with the report to include all of
the following:
(a) The number and characteristics of the children who exited the
child welfare system to the Kin-GAP Program.
(b) The numbers and types of disruptions to the Kin-GAP Program,
including subsequent substantiated child abuse reports, child welfare
services, and cases where children return to foster care.
(c) Rates of Kin-GAP exits from foster care compared to relative
adoption and return to parents.
SEC. 380. Section 11468.6 of the Welfare and Institutions Code is
amended to read:
11468.6. (a) The director shall establish administrative
procedures to review group home audit findings.
(b) A group home provider, including an RCL 13 or an RCL 14
provider, may request a hearing to examine any disputed audit finding
that results in an overpayment or adjustment to the provider's rate,
or that reduces the provider's overall RCL point total pursuant to
Section 11462. The administrative review process established in this
section shall not examine issues regarding the authority of the
department to set rates, determine RCL points, conduct audits, or
collect overpayments from a group home provider.
(c) The administrative appeal process established pursuant to this
section shall commence with an informal hearing, and provide for a
formal administrative hearing of the informal level appeal record and
decision by a hearing officer appointed by the director. The
department shall make every effort to contract with the State
Department of Health Services to conduct the informal hearings
required by this subdivision during the first year of implementation
of this section.
(d) An amended audit report may be issued by the department for
the fiscal period or periods for which the proceedings are pending
under this section, if at the time of the hearing, the group home
provider submits additional documentation or evidence that was not
available to the department at the time of the audit. The
proceedings shall be suspended for a period not exceeding 120 days
while the department completes an amended audit and the provider
identifies any additional disputes that result from an amended audit
report. Additional audit findings included in an amended audit
report may also be included in the proceedings at the request of the
provider.
(e) Within 120 days after submission of a proposed decision, the
director shall do one of the following:
(1) Adopt the proposed decision with or without reading or hearing
the record.
(2) Reject the proposed decision and adopt an alternative decision
based upon the documentary and electronically recorded record, with
or without taking additional evidence.
(3) Refer the matter to the same or a different hearing officer to
take additional evidence. If the case is so assigned, the hearing
officer shall, within 90 days, prepare a proposed decision, based
upon the additional evidence and the documentary and electronically
recorded record of the prior hearing. The director may then take one
of the actions described in this subdivision in regard to the new
proposed decision. The director may return a proposed decision twice
on the same appeal.
(f) (1) The director's decision shall be final when the decision
is mailed to the parties. However, the director retains jurisdiction
to correct clerical errors.
(2) Copies of the final decision of the director and the hearing
officer's proposed decision, if it was not adopted by the director,
shall be mailed by certified mail to the parties.
(g) The group home provider may request review of the final
decision of the director pursuant to this section in accordance with
Section 1094.5 of the Code of Civil Procedure within six months of
the issuance of the director's final decision.
SEC. 381. Section 14016.5 of the Welfare and Institutions Code is
amended to read:
14016.5. (a) At the time of determining or redetermining the
eligibility of a Medi-Cal or aid to families with dependent children
(AFDC) applicant or beneficiary who resides in an area served by a
managed health care plan or pilot program in which beneficiaries may
enroll, each applicant or beneficiary shall personally attend a
presentation at which the applicant or beneficiary is informed of the
managed care and fee-for-service options available regarding methods
of receiving Medi-Cal benefits. The county shall ensure that each
beneficiary or applicant attends this presentation.
(b) The health care options presentation described in subdivision
(a) shall include all of the following elements:
(1) Each beneficiary or eligible applicant shall be informed that
he or she may choose to continue an established patient-provider
relationship in the fee-for-service sector.
(2) Each beneficiary or eligible applicant shall be provided with
the name, address, telephone number, and specialty, if any, of each
primary care provider, and each clinic participating in each prepaid
managed health care plan, pilot project, or fee-for-service case
management provider option. This information shall be provided under
geographic area designations, in alphabetical order by the name of
the primary care provider and clinic. The name, address, and
telephone number of each specialist participating in each prepaid
managed care health plan, pilot project, or fee-for-service case
management provider option shall be made available by either
contacting the health care options contractor or the prepaid managed
care health plan, pilot project, or fee-for-service case management
provider.
(3) Each beneficiary or eligible applicant shall be informed that
he or she may choose to continue an established patient-provider
relationship in a managed care option, if his or her treating
provider is a primary care provider or clinic contracting with any of
the prepaid managed health care plans, pilot projects, or
fee-for-service case management provider options available, has
available capacity, and agrees to continue to treat that beneficiary
or applicant.
(4) In areas specified by the director, each beneficiary
or eligible applicant shall be informed that if he or she fails to
make a choice, or does not certify that he or she has an established
relationship with a primary care provider or clinic, he or she shall
be assigned to, and enrolled in, a prepaid managed health care plan,
pilot projects, or fee-for-service case management provider.
(c) No later than 30 days following the date a Medi-Cal or AFDC
beneficiary or applicant is determined eligible, the beneficiary or
applicant shall indicate his or her choice in writing, as a condition
of coverage for Medi-Cal benefits, of either of the following health
care options:
(1) To obtain benefits by receiving a Medi-Cal card, which may be
used to obtain services from individual providers, that the
beneficiary would locate, who choose to provide services to Medi-Cal
beneficiaries.
The department may require each beneficiary or eligible applicant,
as a condition for electing this option, to sign a statement
certifying that he or she has an established patient-provider
relationship, or in the case of a dependent, the parent or guardian
shall make that certification. This certification shall not require
the acknowledgment or guarantee of acceptance, by any indicated
Medi-Cal provider or health facility, of any beneficiary making a
certification under this section.
(2) (A) To obtain benefits by enrolling in a prepaid managed
health care plan, pilot program, or fee-for-service case management
provider that has agreed to make Medi-Cal services readily available
to enrolled Medi-Cal beneficiaries.
(B) At the time the beneficiary or eligible applicant selects a
prepaid managed health care plan, pilot project, or fee-for-service
case management provider, the department shall, when applicable,
encourage the beneficiary or eligible applicant to also indicate, in
writing, his or her choice of primary care provider or clinic
contracting with the selected prepaid managed health care plan, pilot
project, or fee-for-service case management provider.
(d) (1) In areas specified by the director, a Medi-Cal or AFDC
beneficiary or eligible applicant who does not make a choice, or who
does not certify that he or she has an established relationship with
a primary care provider or clinic, shall be assigned to and enrolled
in an appropriate Medi-Cal managed care plan, pilot project, or
fee-for-service case management provider providing service within the
area in which the beneficiary resides.
(2) If it is not possible to enroll the beneficiary under a
Medi-Cal managed care plan or pilot project or a fee-for-service case
management provider because of a lack of capacity or availability of
participating contractors, the beneficiary shall be provided with a
Medi-Cal card and informed about fee-for-service primary care
providers who do all of the following:
(A) The providers agree to accept Medi-Cal patients.
(B) The providers provide information about the provider's
willingness to accept Medi-Cal patients as described in Section
14016.6.
(C) The providers provide services within the area in which the
beneficiary resides.
(e) If a beneficiary or eligible applicant does not choose a
primary care provider or clinic or does not select any primary care
provider who is available, the managed health care plan, pilot
project, or fee-for-service case management provider that was
selected by or assigned to the beneficiary shall ensure that the
beneficiary selects a primary care provider or clinic within 30 days
after enrollment or is assigned to a primary care provider within 40
days after enrollment.
(f) (1) The managed care plan shall have a valid Medi-Cal
contract, adequate capacity, and appropriate staffing to provide
health care services to the beneficiary.
(2) The department shall establish standards for all of the
following:
(A) The maximum distances a beneficiary is required to travel to
obtain primary care services from the managed care plan,
fee-for-service managed care provider, or pilot project in which the
beneficiary is enrolled.
(B) The conditions under which a primary care service site shall
be accessible by public transportation.
(C) The conditions under which a managed care plan,
fee-for-service managed care provider, or pilot project shall provide
nonmedical transportation to a primary care service site.
(3) In developing the standards required by paragraph (2), the
department shall take into account, on a geographic basis, the means
of transportation used and distances typically traveled by Medi-Cal
beneficiaries to obtain fee-for-service primary care services and the
experience of managed care plans in delivering services to Medi-Cal
enrollees. The department shall also consider the provider's ability
to render culturally and linguistically appropriate services.
(g) To the extent possible, the arrangements for carrying out
subdivision (d) shall provide for the equitable distribution of
Medi-Cal beneficiaries among participating managed care plans,
fee-for-service case management providers, and pilot projects.
(h) If, under the provisions of subdivision (d), a Medi-Cal
beneficiary or applicant does not make a choice or does not certify
that he or she has an established relationship with a primary care
provider or clinic, the person may, at the option of the department,
be provided with a Medi-Cal card or be assigned to and enrolled in a
managed care plan providing service within the area in which the
beneficiary resides.
(i) Any Medi-Cal or AFDC beneficiary who is dissatisfied with the
provider or managed care plan, pilot project, or fee-for-service case
management provider shall be allowed to select or be assigned to
another provider or managed care plan, pilot project, or
fee-for-service case management provider.
(j) The department or its contractor shall notify a managed care
plan, pilot project, or fee-for-service case management provider when
it has been selected by or assigned to a beneficiary. The managed
care plan, pilot project, or fee-for-service case management provider
that has been selected by, or assigned to, a beneficiary, shall
notify the primary care provider or clinic that it has been selected
or assigned. The managed care plan, pilot project, or
fee-for-service case management provider shall also notify the
beneficiary of the managed care plan, pilot project, or
fee-for-service case management provider or clinic selected or
assigned.
(k) (1) The department shall ensure that Medi-Cal beneficiaries
eligible under Title XVI of the Social Security Act are provided with
information about options available regarding methods of receiving
Medi-Cal benefits as described in subdivision (c).
(2) (A) The director may waive the requirements of subdivisions
(c) and (d) until a means is established to directly provide the
presentation described in subdivision (a) to beneficiaries who are
eligible for the federal Supplemental Security Income for the Aged,
Blind, and Disabled Program (Subchapter 16 (commencing with Section
1381) of Chapter 7 of Title 42 of the United States Code).
(B) The director may elect not to apply the requirements of
subdivisions (c) and (d) to beneficiaries whose eligibility under the
Supplemental Security Income program is established before January
1, 1994.
(l) In areas where there is no prepaid managed health care plan or
pilot program that has contracted with the department to provide
services to Medi-Cal beneficiaries, and where no other enrollment
requirements have been established by the department, no explicit
choice need be made, and the beneficiary or eligible applicant shall
receive a Medi-Cal card.
(m) The following definitions contained in this subdivision shall
control the construction of this section, unless the context requires
otherwise:
(1) "Applicant," "beneficiary," and "eligible applicant," in the
case of a family group, mean any person with legal authority to make
a choice on behalf of dependent family members.
(2) "Fee-for-service case management provider" means a provider
enrolled and certified to participate in the Medi-Cal fee-for-service
case management program the department may elect to develop in
selected areas of the state with the assistance of and in cooperation
with California physician providers and other interested provider
groups.
(3) "Managed health care plan" and "managed care plan" mean a
person or entity operating under a Medi-Cal contract with the
department under this chapter or Chapter 8 (commencing with Section
14200) to provide, or arrange for, health care services for Medi-Cal
beneficiaries as an alternative to the Medi-Cal fee-for-service
program that has a contractual responsibility to manage health care
provided to Medi-Cal beneficiaries covered by the contract.
(n) (1) Whenever a county welfare department notifies a public
assistance recipient or Medi-Cal beneficiary that the recipient or
beneficiary is losing Medi-Cal eligibility, the county shall include,
in the notice to the recipient or beneficiary, notification that the
loss of eligibility shall also result in the recipient's or
beneficiary's disenrollment from Medi-Cal managed care health or
dental plans, if enrolled.
(2) (A) Whenever the department or the county welfare department
processes a change in a public assistance recipient's or Medi-Cal
beneficiary's residence or aid code that will result in the recipient'
s or beneficiary's disenrollment from the managed care health or
dental plan in which he or she is currently enrolled, a written
notice shall be given to the recipient or beneficiary.
(B) This paragraph shall become operative and the department shall
commence sending the notices required under this paragraph on or
before the expiration of 12 months after the effective date of this
section.
(o) This section shall be implemented in a manner consistent with
any federal waiver required to be obtained by the department in order
to implement this section.
SEC. 382. Section 14043.75 of the Welfare and Institutions Code is
amended to read:
14043.75. (a) The director may, in consultation with interested
parties, by regulation, adopt, readopt, repeal, or amend additional
measures to prevent or curtail fraud and abuse. Regulations adopted,
readopted, repealed, or amended pursuant to this section shall be
deemed emergency regulations in accordance with the Administrative
Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code). These emergency
regulations shall be deemed necessary for the immediate preservation
of the public peace, health and safety, or general welfare.
Emergency regulations adopted, amended, or repealed pursuant to this
section shall be exempt from review by the Office of Administrative
Law. The emergency regulations authorized by this section shall be
submitted to the Office of Administrative Law for filing with the
Secretary of State and publication in the California Code of
Regulations.
(b) Notwithstanding any other provision of law, the director may,
without taking regulatory action pursuant to Chapter 3.5 (commencing
with Section 11340) of Part 1 of Division 3 of Title 2 of the
Government Code, implement, interpret, or make specific Sections
14043.15, 14043.26, 14043.27, 14043.28, 14043.29, and 14043.341 by
means of a provider bulletin or similar instruction. The department
shall notify and consult with interested parties and appropriate
stakeholders in implementing, interpreting, or making specific those
provisions described in this subdivision, including all of the
following:
(1) Notifying provider representatives of the proposed action or
change. The notice shall occur at least 10 business days prior to
the meeting provided for in paragraph (2).
(2) Scheduling at least one meeting with interested parties and
appropriate stakeholders to discuss the action or change.
(3) Allowing for written input regarding the action or change.
(4) Providing at least 30 days' advance notice of the effective
date of the action or change.
SEC. 383. Section 14087.6 of the Welfare and Institutions Code is
amended to read:
14087.6. A county that has contracted for the provision of
services pursuant to this article may provide the services directly
to recipients, or arrange for any or all of the services to be
provided by subcontracting with primary care providers, health
maintenance organizations, insurance carriers, or other entities or
individuals. The subcontracts may utilize a prospectively negotiated
reimbursement rate, fee-for-service, retainer, capitation, or other
basis for payment. The rate of payment established under the
contract shall not exceed the total per capita amount that the
department estimates would be payable for all services and
requirements covered under the contract if all these services and
requirements were to be furnished Medi-Cal beneficiaries under the
Medi-Cal fee-for-service program.
Counties that are responsible for providing health care under this
chapter shall make efforts to utilize existing health service
resources if these resources can be estimated by the county to result
in lower total long-term costs and accessible quality care to
persons served under this chapter. The granting of a certificate of
need pursuant to the criteria set forth in Section 127200 of the
Health and Safety Code or a certificate of exemption pursuant to the
criteria set forth in Section 127175 of the Health and Safety Code
shall satisfy the intent of this provision.
SEC. 384. Section 14105.981 of the Welfare and Institutions Code
is amended to read:
14105.981. (a) Prior to the implementation of the Health
Insurance Act of 2003, annually for five years after its
implementation, and every five years thereafter, the department shall
report to the Legislature and the Managed Risk Medical Insurance
Board regarding utilization patterns for Medi-Cal pursuant to this
chapter at county-owned hospitals and clinics, community clinics, and
vital institutional safety net providers eligible for Medi-Cal
payments under Section 14105.98, including determining the number of
Medi-Cal inpatient days and outpatient visits as well as the nature
and cost of care provided to Medi-Cal patients.
(b) If Medi-Cal fee-for-service utilization or Medi-Cal
fee-for-service payments to county-owned hospitals and clinics,
community clinics, and other vital institutional safety net providers
eligible for Medi-Cal payments under Section 14105.98 have been
reduced, then the department shall review statute, regulations,
policies and procedures, payment arrangements or other mechanisms to
determine what changes may be necessary to protect Medi-Cal funding
and maximize federal financial participation to protect the financial
stability of county-owned hospitals and clinics, community clinics,
and other vital institutional safety net providers. The department
shall consult with representatives of county-owned hospital systems,
community clinics, vital institutional safety net providers eligible
for Medi-Cal payments under Section 14105.98, legal services
advocates, and recognized collective bargaining agents for the
specified providers.
SEC. 385. Section 14123.25 of the Welfare and Institutions Code is
amended to read:
14123.25. (a) In lieu of, or in addition to, the imposition of
any other sanction available to it, including the sanctions and
penalties authorized under Section 14123.2 or 14171.6, and as the
"single state agency" for California vested with authority to
administer the Medi-Cal program, the department shall exercise the
authority granted to it in Section 1002.2 of Title 42 of the Code of
Federal Regulations, and may also impose the mandatory and permissive
exclusions identified in Section 1128 of the federal Social Security
Act (42 U.S.C. Sec. 1320a-7), and its implementing regulations, and
impose civil penalties identified in Section 1128A of the federal
Social Security Act (42 U.S.C. Sec. 1320a-7a), and its implementing
regulations, against applicants and providers, as defined in Section
14043.1, or against billing agents, as defined in Section 14040.1.
The department may also terminate, or refuse to enter into, a
provider agreement authorized under Section 14043.2 with an applicant
or provider, as defined in Section 14043.1, upon the grounds
specified in Section 1866(b)(2) of the federal Social Security Act
(42 U.S.C. Sec. 1395cc(b)(2)). Notwithstanding Section 100171 of
the Health and Safety Code or any other provision of law, any appeal
by an applicant, provider, or billing agent of the imposition of a
civil penalty, exclusion, or other sanction pursuant to this
subdivision shall be in accordance with Section 14043.65, except that
where the action is based upon conviction for any crime involving
fraud or abuse of the Medi-Cal, medicaid, or Medicare programs, or
exclusion by the federal government from the medicaid or Medicare
programs, the action shall be automatic and not subject to appeal or
hearing.
(b) In addition, the department may impose the intermediate
sanctions identified in Section 1846 of the Social Security Act (42
U.S.C. Sec. 1395w-2), and its implementing regulations, against any
provider that is a clinical laboratory, as defined in Section 1206 of
the Business and Professions Code. The imposition and appeal of
this intermediate sanction shall be in accordance with Article 8
(commencing with Section 1065) of Chapter 2 of Division 1 of Title 17
of the California Code of Regulations.
(c) (1) In addition, the department may issue a written warning
notice of improper billing or improper cost report computation, which
shall specifically identify the statute, regulation, or rule that is
being violated, to a provider via certified mail, return receipt
requested, whenever a review of the provider's paid claims or a
provider's cost report demonstrate a pattern of improper billing or
improper cost report computation. The review shall not take into
account claims that were denied or payment reductions. The warning
notice shall be in a format that specifically apprises the provider
of the item or service improperly billed, and if applicable, the
deficiencies in the manner in which provider costs were computed.
The warning notice may be issued with annual cost report audit
findings, or in addition to any audit or any other action that the
department is authorized to take. The failure of the department to
exercise its discretion to issue the warning notice shall not be
interpreted and shall not limit its authority to audit or take any
action authorized by law. The warning notice shall provide the
provider with the opportunity to contest the warning notice and
explain to the department the correctness of the provider's bill or
cost report computation. If the department accepts the provider's
explanation, in whole or in part, no further action related to the
notice or part of the notice that the department accepts as correct
shall be taken pursuant to this section.
(2) Civil money penalties may be imposed in the following
circumstances:
(A) If a provider presents or causes to be presented claims for
payment by the Medi-Cal program that are either of the following:
(i) Billed improperly, and are for a service or item about which
the provider has received two or more warning notices of improper
billing, the provider may, in addition to any other penalties that
may be prescribed by law, be subject to a civil money penalty of one
hundred dollars ($100) per claim, or up to two times the amount
improperly claimed for each item or service, whichever is greater.
(ii) For a service or item for which the department solicits
provider costs for use in calculating Medi-Cal reimbursement or in
calculating and assigning Medi-Cal reimbursement rates, the cost
reports relevant to the claims are improperly calculated, and the
provider has received two or more warning notices of improper cost
report computation regarding substantially similar errors, the
provider may, in addition to any other penalties that may be
prescribed by law, be subject to a civil money penalty of one hundred
dollars ($100) per adjustment by the department to the costs
submitted by the provider, or up to two times the amount improperly
claimed for each item or service, whichever is greater.
(B) If a provider presents or causes to be presented claims for
payment by the Medi-Cal program that are either of the following:
(i) Billed improperly, and are for a service or item about which
the provider has received three or more warning notices of improper
billing, or has been assessed a penalty under subparagraph (A), the
provider may, in addition to any other penalties that may be
prescribed by law, be subject to a civil money penalty of one
thousand dollars ($1,000) per claim, or up to three times the amount
improperly claimed for each item or service, whichever is greater.
(ii) For a service or item for which the department solicits
provider costs for use in calculating Medi-Cal reimbursement or in
calculating and assigning Medi-Cal reimbursement rates, and the cost
reports relevant to the claims are improperly calculated, and the
provider has received three or more warning notices of improper cost
report computation regarding substantially similar errors, or has
been assessed a penalty under subparagraph (A), the provider may, in
addition to any other penalties that may be prescribed by law, be
subject to a civil money penalty of one thousand dollars ($1,000) per
adjustment by the department to the costs submitted by the provider,
or three times the amount claimed for each item or service,
whichever is greater.
(3) Any provider subjected to civil money penalties under
paragraph (2) may appeal the decision to assess penalties pursuant to
Section 100171 of the Health and Safety Code.
SEC. 386. Section 14132.22 of the Welfare and Institutions Code is
amended to read:
14132.22. (a) For purposes of this section, dental restorative
materials are limited to composite resin, glass ionomer cement, resin
ionomer cement, and amalgam, as described on the Dental Board of
California's dental materials factsheet.
(b) A provider of services that includes the provision of dental
restorative materials to a beneficiary under this chapter may
recommend, after consultation with the beneficiary, a dental
restorative material other than the covered benefit of amalgam.
(c) A provider may claim and receive the reimbursement rate for an
amalgam restoration when using a different dental restorative
material.
SEC. 387. Section 14133.3 of the Welfare and Institutions Code is
amended to read:
14133.3. (a) The director shall require fully documented medical
justification from providers that the requested services are
medically necessary to prevent significant illness, to alleviate
severe pain, to protect life, or to prevent significant disability,
on all requests for prior authorization.
(b) For services not subject to prior authorization controls,
offered by noncontract hospitals in closed health facility planning
areas to beneficiaries who were experiencing life-threatening or
emergency situations, but could not be stabilized sufficiently in
order to facilitate being transported to contracting hospitals, the
director shall additionally determine utilization controls that shall
be applied to ensure that the health care services provided and the
conditions treated, are medically necessary to prevent significant
illness, alleviate severe pain, to protect life, or prevent
significant disability. These utilization controls shall take into
account those diseases, illnesses, or injuries that require
preventive health services or treatment to prevent serious
deterioration of health.
(c) Nothing in this section shall preclude payment for family
planning services or early and periodic screening, diagnosis, and
treatment services mandated by federal law.
(d) For the purposes of this section, a "noncontract hospital"
means a hospital that has not contracted with the department for the
provision of inpatient services pursuant to Article 2.6 (commencing
with Section 14081).
(e) This section shall not be applied to mental health services as
defined under Division 5 (commencing with Section 5000) or Section
14021, or any other mental health services funded by the Medi-Cal
program.
SEC. 388. Section 14148.91 of the Welfare and Institutions Code is
amended to read:
14148.91. (a) No later than March 15 of each year, the department
shall report to the appropriate committees of the Legislature and
the Governor, on a statewide and county-by-county basis, the most
recent data on all of the following:
(1) The number of live births to women receiving prenatal care in
the first trimester, in the second trimester, and in the third
trimester, as well as an analysis of barriers to care to the extent
available.
(2) The number of maternal deaths by race and ethnic group.
(3) The number of live births by county, race, and ethnic group.
(4) The number of fetal deaths of infants over 20 weeks' gestation
by race and ethnic group.
(5) The number of infant deaths by county, race, and ethnic group
from birth to 28 days postpartum.
(6) The number of infant deaths by county, race, and ethnic group
from 29 days postpartum to one year.
(7) The number of live births under 2,500 grams and over 4,500
grams by race and ethnic group.
(8) The number of live births under 1,500 grams by race and ethnic
group.
(9) The number of women eligible for prenatal, delivery, or
postpartum care under Subchapter 19 (commencing with Section 1396) of
Chapter 7 of Title 42 of the United States Code in the past year.
(10) The source of payment for prenatal care and delivery.
(b) No later than March 15 of each year, the department shall
report to the appropriate committees of the Legislature and the
Governor on a statewide basis, to the extent data are available, all
of the following:
(1) The number of infants eligible for services under Subchapter
19 (commencing with Section 1396) of Chapter 7 of Title 42 of the
United States Code.
(2) The number of newborn babies screened or diagnosed with Fetal
Alcohol Syndrome.
(3) The number of babies born with drug dependencies, HIV
infection, and sexually transmitted diseases.
(4) Whether the mother smoked, consumed alcoholic beverages, or
used controlled substances without a prescription, during pregnancy.
(c) (1) The department, in consultation with the Legislative
Analyst, shall contract, using appropriate state administrative
funds, with an
appropriate entity for a one-time, statistical survey of the income
of mothers, utilizing a statistically valid sample linked to the
birth certificate.
(2) The State Department of Health Services shall not use more
than one hundred thousand dollars ($100,000) of administrative funds
for the survey required by paragraph (1).
(3) The income information required by paragraph (1) shall be
categorized according to the following income categories:
(A) Persons whose family income does not exceed 150 percent of the
official federal poverty line.
(B) Persons whose family income exceeds 150 percent of the
official federal poverty line but does not exceed 185 percent of the
official federal poverty line.
(C) Persons whose family income exceeds 185 percent of the
official federal poverty line but does not exceed 200 percent of the
official federal poverty line.
(D) Persons whose family income exceeds 200 percent of the
official federal poverty line but does not exceed 225 percent of the
official federal poverty line.
(E) Persons whose family income exceeds 225 percent of the
official federal poverty line.
(F) Persons whose family income exceeds 250 percent of the
official federal poverty line level but does not exceed 300 percent
of the official federal poverty line.
(d) The department shall, in addition to the information required
by subdivision (a), report on trends in private insurance coverage of
maternity care, to the extent the data is available.
SEC. 389. Section 14408 of the Welfare and Institutions Code is
amended to read:
14408. (a) Except as otherwise prohibited by law, a contractor
that has entered into a contract with the department pursuant to this
chapter may make the benefits known to potential enrollees by
methods approved by the department.
(b) No prepaid health plan, marketing representative, or marketing
organization shall engage in marketing activities prior to written
submittal to and approval by the department. All marketing
activities, procedures, methods, and places in which any activities
will be conducted shall be explicitly described in a marketing plan
and approved by the department prior to being used by a prepaid
health plan, marketing representative, or marketing organization.
The marketing plan shall be updated and submitted for renewed
approval on an annual basis. The department may approve, disapprove,
or withdraw approval of any marketing activity or procedure. The
department shall require the discontinuance of any marketing activity
or procedure for which the department withdraws approval. The
conduct of activities or procedures not included in an approved
marketing plan shall constitute a violation of this article and be
subject to sanctions in accordance with Section 14409.
The prepaid health plan shall be responsible for all presentations
by its marketing representatives and for their ethical and
professional conduct. The department may withdraw certification for
participation in the program from, and impose marketing sanctions
specified in Section 14409, as applicable, on marketing
representatives.
(c) The marketing plan shall meet the standards established by the
department. The marketing plan shall include, but not be limited
to, an explicit description of the specific marketing activities, the
method of identifying individual enrollments by marketing
representative, and formal measures to monitor performance of
marketing representatives and verify both of the following:
(1) The prepaid health plan's marketing activities and practices
do not violate subdivision (a) of Section 14409.
(2) Beneficiaries receive complete and accurate information about
the benefits and limitations of receiving health care services
through the prepaid plan in a manner that considers the beneficiary's
level of comprehension.
(d) Each time a marketing representative presents information
about the benefits of prepaid health plan enrollment to a beneficiary
in order to encourage the beneficiary to enroll, the marketing
representative shall leave with the beneficiary printed information
identifying the marketing representative by name and prepaid health
plan represented.
(e) All printed or illustrated material prepared by the prepaid
health plan for dissemination to enrollees or to prospective
enrollees shall be submitted to the department prior to
dissemination. The department shall acknowledge receipt of the
printed or illustrated material within five days, and shall approve
or disapprove the material for dissemination within 60 days after the
date of notification that the material has been received. The
department may withdraw approval of the material previously approved
and order its dissemination discontinued. If the department notifies
the prepaid health plan of its disapproval or withdrawal of
approval, the prepaid health plan shall have the right to meet and
confer with the director or his or her designee and demonstrate the
purpose and reasonable basis for the distribution of the material to
enrollees and potential enrollees.
(f) (1) Any form of door-to-door or in-person marketing that
coerces or misleads beneficiaries or selectively enrolls
beneficiaries on the basis of their health status is unlawful. In
addition, on or after July 1, 1996, door-to-door solicitation of
Medi-Cal enrollees shall not be permitted.
(2) On or after July 1, 1996, the health care options presentation
required by Sections 14016.5 and 14016.6 or the health care options
information required by Sections 14087.305 and 14089 shall be fully
operational in counties specified by the director for expansion of
the Medi-Cal managed care program or in counties where prepaid health
plans are contracting with the department pursuant to Sections
14018.7, 14087.31, 14087.35, 14087.36, 14087.38, 14087.96, 14089, and
14089.05. In these counties, on or after July 1, 1996, no
enrollment of beneficiaries by prepaid health plans shall occur
during in-person marketing activities or during health fairs pursuant
to paragraph (5) of subdivision (f). Enrollment shall be
exclusively performed and transmitted pursuant to the program
required by Sections 14016.5, 14016.6, 14087.305, and 14089.
(3) In the event the health care options presentation required by
Sections 14016.5 and 14016.6 is not fully operational or the health
care options information required by Sections 14087.305 and 14089 is
not fully available, as specified in paragraph (2) of subdivision
(f), the department shall perform the enrollment-only functions until
the health care options presentation or information is fully
operational or available.
(4) Nothing in this section shall preclude a prepaid health plan
from responding to inquiries initiated by beneficiaries or potential
beneficiaries.
(5) Until July 1, 1996, a prepaid health plan may participate in
an organized community or neighborhood health fair in a public place
only if two or more prepaid health plans are participating, or if the
plan is invited by the sponsor of the fair. If there are not two or
more prepaid health plans providing services to Medi-Cal
beneficiaries in a prepaid health plan's service area, this
subdivision shall not apply. On or after July 1, 1996, a prepaid
health plan may participate in an organized community or neighborhood
health fair in a public place for marketing purposes.
(g) Any prepaid health plan, marketing representative, or
marketing organization that violates subdivision (f) shall be subject
to the sanctions set forth in subdivision (b) of Section 14409 and
shall be guilty of a misdemeanor and subject to a fine of five
hundred dollars ($500) or imprisonment in a county jail for six
months, or both, for each violation.
(h) The department shall certify each marketing representative
prior to participation in the program in accordance with standards
established by the department. Continuing certification for
participation in the program shall be contingent upon compliance with
this article, as well as guidelines and standards adopted by the
department, and may be withdrawn upon their violation, as determined
by the department. The department may temporarily decertify any
marketing representative when that action is necessary to protect the
public welfare or the interests of the Medi-Cal program. Temporary
decertification shall be effective immediately upon written notice to
the marketing representative and the managed care contractor, and
shall remain in effect until the department has made a determination
on the merits. Temporary decertification shall be canceled unless the
department acts to permanently withdraw certification within 60
days.
(i) No prepaid health plan shall employ in any capacity relating
to the marketing operations of the plan a marketing representative
whose certification has been withdrawn. Marketing representatives
shall not be recertified for participation until the cause for
withdrawal of certification has been corrected to the satisfaction of
the department. Proof of correction shall be the sole
responsibility of the marketing representative.
SEC. 390. 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 377.34 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. 391. Section 15657.03 of the Welfare and Institutions Code is
amended to read:
15657.03. (a) An elder or dependent adult who has suffered abuse
as defined in Section 15610.07 may seek protective orders as provided
in this section.
(b) For the purposes of this section, "protective order" means an
order that includes any of the following restraining orders, whether
issued ex parte, after notice and hearing, or in a judgment:
(1) An order enjoining a party from abusing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, harassing, telephoning, including, but not
limited to, annoying telephone calls as described in Section 653m of
the Penal Code, destroying personal property, contacting, either
directly or indirectly, by mail or otherwise, or coming within a
specified distance of, or disturbing the peace of the petitioner.
(2) An order excluding a party from the petitioner's residence or
dwelling, except that this order shall not be issued if legal or
equitable title to, or lease of, the residence or dwelling is in the
sole name of the party to be excluded or is in the name of the party
to be excluded and any other party besides the petitioner.
(3) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
paragraph (1) or (2).
(c) An order may be issued under this section, with or without
notice, to restrain any person for the purpose of preventing a
recurrence of abuse, if an affidavit shows, to the satisfaction of
the court, reasonable proof of a past act or acts of abuse of the
petitioning elder or dependent adult.
(d) (1) Upon filing a petition for protective orders under this
section, the petitioner may obtain a temporary restraining order in
accordance with Section 527 of the Code of Civil Procedure, except to
the extent this section provides a rule that is inconsistent. The
temporary restraining order may include any of the protective orders
described in subdivision (b). However, the court may issue an ex
parte order excluding a party from the petitioner's residence or
dwelling 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 petitioner.
(C) That physical or emotional harm would otherwise result to the
petitioner.
(2) If a temporary restraining order is granted without notice,
the matter shall be made returnable on an order requiring cause to be
shown why a permanent order should not be granted, on the earliest
day that the business of the court will permit, but not later than 20
days or, if good cause appears to the court, 25 days from the date
the temporary restraining order is granted, unless the order is
otherwise modified or terminated by the court.
(e) The court may issue, upon notice and a hearing, any of the
orders set forth in subdivision (b). The court may issue, after
notice and hearing, an order excluding a person from a residence or
dwelling if the court finds that physical or emotional harm would
otherwise result to the other party.
(f) In the discretion of the court, an order issued after notice
and a hearing under this section may have a duration of not more than
three years, subject to termination or modification by further order
of the court either on written stipulation filed with the court or
on the motion of a party. These orders may be renewed upon the
request of a party, either for three years or permanently, without a
showing of any further abuse since the issuance of the original
order, subject to termination or modification by further order of the
court either on written stipulation filed with the court or on the
motion of a party. The failure to state the expiration date on the
face of the form creates an order with a duration of three years from
the date of issuance.
(g) Upon the filing of a petition for protective orders under this
section, the respondent shall be personally served with a copy of
the petition, notice of the hearing or order to show cause, temporary
restraining order, if any, and any affidavits in support of the
petition. Service shall be made at least two days before the
hearing. The court may, on motion of the petitioner or on its own
motion, shorten the time for service on the respondent.
(h) The court may, upon the filing of an affidavit by the
applicant that the respondent could not be served within the time
required by statute, reissue an order previously issued and dissolved
by the court for failure to serve the respondent. The reissued
order shall be made returnable on the earliest day that the business
of the court will permit, but not later than 20 days or, if good
cause appears to the court, 25 days from the date of reissuance. The
reissued order shall state on its face the date of expiration of the
order.
(i) (1) If the person named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based thereon, but the
person does not appear at the hearing, either personally or by
counsel, and the terms and conditions of the restraining order or
protective order, are identical to the temporary restraining order,
except for the duration of the order, then the restraining order or
protective order may be served on the person by first-class mail sent
to that person at the most current address for the person available
to the court.
(2) The judicial form for orders issued pursuant to this
subdivision shall contain a statement in substantially the following
form:
"NO ADDITIONAL PROOF OF SERVICE IS REQUIRED IF THE FACE OF THIS FORM
INDICATES THAT BOTH PARTIES WERE PERSONALLY PRESENT AT THE HEARING
WHERE THE ORDER WAS ISSUED. IF YOU HAVE BEEN PERSONALLY SERVED WITH
A TEMPORARY RESTRAINING ORDER OR EMERGENCY PROTECTIVE ORDER AND
NOTICE OF HEARING, BUT YOU DO NOT APPEAR AT THE HEARING EITHER IN
PERSON OR BY COUNSEL, AND A RESTRAINING ORDER OR PROTECTIVE ORDER IS
ISSUED AT THE HEARING THAT DOES NOT DIFFER FROM THE PRIOR TEMPORARY
RESTRAINING ORDER OR EMERGENCY PROTECTIVE ORDER, A COPY OF THE ORDER
WILL BE SERVED UPON YOU BY MAIL AT THE FOLLOWING ADDRESS ____. IF
THAT ADDRESS IS NOT CORRECT OR YOU WISH TO VERIFY THAT THE TEMPORARY
OR EMERGENCY ORDER WAS MADE PERMANENT WITHOUT SUBSTANTIVE CHANGE,
CALL THE CLERK OF THE COURT AT ____."
(j) (1) The court shall order the petitioner or the attorney for
the petitioner to deliver, or the clerk of the court to mail, a copy
of an order issued under this section, or a reissuance, extension,
modification, or termination of the order, and any subsequent proof
of service, by the close of the business day on which the order,
reissuance, extension, modification, or termination was made, to each
local law enforcement agency designated by the petitioner or the
attorney for the petitioner having jurisdiction over the residence of
the petitioner, and to any additional law enforcement agencies
within the court's discretion as are requested by the petitioner.
Each appropriate law enforcement agency shall make available
information as to the existence and current status of these orders to
law enforcement officers responding to the scene of reported abuse.
(2) An order issued under this section shall, on request of the
petitioner, be served on the respondent, whether or not the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported abuse involving the
parties to the proceeding. The petitioner shall provide the officer
with an endorsed copy of the order and a proof of service which the
officer shall complete and send to the issuing court.
(3) Upon receiving information at the scene of an incident of
abuse that a protective order has been issued under this section, or
that a person who has been taken into custody is the respondent to
that order, if the protected person cannot produce a certified copy
of the order, a law enforcement officer shall immediately attempt to
verify the existence of the order.
(4) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and shall at that
time also enforce the order. Verbal notice of the terms of the order
shall constitute service of the order and is sufficient notice for
the purposes of this section and for the purposes of Section 273.6 of
the Penal Code.
(k) Nothing in this section shall preclude either party from
representation by private counsel or from appearing on the party's
own behalf.
(l) There is no filing fee for a petition, response, or paper
seeking the reissuance, modification, or enforcement of a protective
order filed in a proceeding brought pursuant to this section.
(m) (1) Fees otherwise payable by a petitioner to a law
enforcement agency for serving an order issued under this section may
be waived in any case in which the petitioner has requested a fee
waiver on the initiating petition and has filed a declaration that
demonstrates, to the satisfaction of the court, the financial need of
the petitioner for the fee waiver. The declaration required by this
subdivision shall be on one of the following forms:
(A) The form formulated and adopted by the Judicial Council for
litigants proceeding in forma pauperis pursuant to Section 68511.3 of
the Government Code, but the petitioner is not subject to any other
requirements of litigants proceeding in forma pauperis.
(B) Any other form that the Judicial Council may adopt for this
purpose pursuant to subdivision (r).
(2) In conjunction with a hearing pursuant to this section, the
court may make an order for the waiver of fees otherwise payable by
the petitioner to a law enforcement agency for serving an order
issued under this section.
(n) The prevailing party in any action brought under this section
may be awarded court costs and attorney's fees, if any.
(o) (1) An order issued pursuant to this section shall prohibit
the person subject to it from owning, possessing, purchasing,
receiving, or attempting to purchase or receive, a firearm.
(2) Paragraph (1) shall not apply to a case consisting solely of
financial abuse unaccompanied by force, threat, harassment,
intimidation, or any other form of abuse.
(3) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(4) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive a firearm while the protective order
is in effect is punishable pursuant to subdivision (g) of Section
12021 of the Penal Code.
(p) Any willful disobedience of any temporary restraining order or
restraining order after hearing granted under this section is
punishable pursuant to Section 273.6 of the Penal Code.
(q) This section does not apply to any action or proceeding
covered by Title 1.6C (commencing with Section 1788) of the Civil
Code, by Chapter 3 (commencing with Section 525) of the Code of Civil
Procedure, or by Division 10 (commencing with Section 6200) of the
Family Code. Nothing in this section shall preclude a petitioner's
right to use other existing civil remedies.
(r) The Judicial Council shall promulgate forms and instructions
therefor, rules for service of process, scheduling of hearings, and
any other matters required by this section. The petition and
response forms shall be simple and concise.
SEC. 392. Section 16121.05 of the Welfare and Institutions Code is
amended to read:
16121.05. (a) The department may recover any overpayments of
financial assistance under the Adoption Assistance Program, and shall
develop regulations that establish the means to recoup them,
including an appropriate notice of action and appeal rights, when the
department determines either of the following applies:
(1) The adoptive parents are no longer legally responsible for the
support of the child.
(2) The child is no longer receiving support from the adoptive
family.
(3) The adoptive family has committed fraud in its application
for, or reassessment of, the adoption assistance.
(b) Children on whose behalf an adoption assistance agreement had
been executed prior to October 1, 1992, shall continue to receive
adoption assistance in accordance with the terms of that agreement.
(c) Payment shall begin on or after the effective date of an
adoption assistance agreement, or a deferred adoption assistance
agreement, or a final decree of adoption, provided that the adoption
assistance agreement has been signed by all required parties prior to
or at the time the adoption decree is issued by the court.
(d) Children on whose behalf an aid for adoption of children
agreement had been executed prior to October 1, 1982, shall continue
to receive aid for adoption of children benefits in accordance with
the terms of that agreement. This aid for adoption of children
agreement may be renewed, provided that total benefits do not exceed
five years. Prior to the end of the five-year period, if there is a
continuing need related to a chronic health condition of the child
that necessitated the initial financial assistance, the time period
for which it may be given shall be determined by the department or
the agency, but shall not extend past the time that the child reaches
18 years of age. Prior to the expiration of the extension period, if
there is a continuing need, a parent may petition the department or
the designated licensed adoption agency for a new period of
termination. The department or the agency shall make its
determination regarding the financial ability of the parents to meet
the continuing medical needs of the child's health condition at the
time of adoption, taking into consideration community resources.
SEC. 393. Section 16501.6 of the Welfare and Institutions Code is
amended to read:
16501.6. (a) It is the intent of the Legislature for the State
Department of Social Services to enhance the Child Welfare Services
Case Management System to include information concerning the level of
care required, educational accomplishments, and health history of
children placed in foster care. If appropriate, this enhancement
could be made after the system is operational statewide as required
in Section 16501.5.
(b) The department shall conduct a study to examine the most
efficient methods of collecting and maintaining all of the following
data for each child in foster care:
(1) The names and addresses of the child's health and educational
providers.
(2) The child's grade level performance.
(3) The child's school record.
(4) Assurances that the child's placement in foster care takes
into account proximity to the school in which the child is enrolled
at the time of placement.
(5) A record of the child's immunizations.
(6) The child's known medical problems.
(7) The child's medications.
(8) Any other relevant level of care, health, and education
information concerning the child as determined appropriate by the
department.
(c) In conducting its study, the department shall, as required,
examine county health passport systems for possible replication on a
statewide basis and consult with other state departments, county
associations, and provider groups.
(d) By February 15, 1992, the department shall submit a report to
the appropriate policy and fiscal committees of the Legislature on
the results of its study. The department shall include the following
in its report:
(1) Recommendations for coordinating data collection among local
child health and disability prevention programs, other health care
providers, county welfare departments, schools, and other agencies
providing services for foster children.
(2) Recommendations for the interfacing with any alternative
system recommended pursuant to paragraph (1) with the mental health
assessment required by Section 5407, and with other
requirements of law.
(e) The report required by subdivision (d) shall address the
feasibility, timeframe, and estimated costs of doing either of the
following:
(1) Incorporating the data specified in subdivision (b) in the
Child Welfare Services Case Management System.
(2) Implementing an alternative system that is more appropriate
for the collection and maintenance of the data specified in
subdivision (b).
SEC. 394. Section 18358 of the Welfare and Institutions Code is
amended to read:
18358. The definitions contained in this section shall govern the
construction of this chapter, unless the context requires otherwise:
(a) "Department" means the State Department of Social Services.
(b) "Eligible children" means children who meet all of the
following conditions:
(1) Children who are emotionally disturbed, as evidenced by a
history that may include, but is not limited to, all of the specific
behavior management problems:
(A) Lying.
(B) Stealing.
(C) Verbal or physical aggression.
(D) Unacceptable sexual behavior.
(E) Attempts at self-mutilation or suicide.
(F) Defiant and oppositional behavior.
(2) Children who, as a result of their emotional disturbance, have
been either:
(A) Placed in a group home with a rate classification level of 12
or higher pursuant to Section 11462.
(B) Assessed by the child's county interagency review team as at
imminent risk of psychiatric hospitalization or placement in a group
home with a rate classification level of 12 or higher pursuant to
Section 11462.
(3) Children who have successfully completed the group home
program, except children on probation or otherwise in the custody of
the juvenile court for any violent felony, as defined in subdivision
(c) of Section 667.5 of the Penal Code.
(4) Any child who is voluntarily placed in a group home with a
rate classification level of 12 or higher pursuant to Section 7572.5
of the Government Code.
SEC. 395. Section 1 of Chapter 68 of the Statutes of 2003 is
amended to read:
Sec. 1. For purposes of this chapter, the following terms have the
following meanings:
(a) "BCDC" means the San Francisco Bay Conservation and
Development Commission established pursuant to Section 66620 of the
Government Code.
(b) "Bay jurisdiction" means the jurisdiction, powers, and duties
of BCDC pursuant to Title 7.2 (commencing with Section 66600) of the
Government Code within the area defined in subdivision (a) of Section
66610 of the Government Code.
(c) "Bay Plan" means the San Francisco Bay Plan as adopted and
administered by BCDC pursuant to Title 7.2 (commencing with Section
66600) of the Government Code, including all amendments thereto.
(d) "Boundary of the Port of San Francisco" means that line
defining the boundary of "Parcel A" in the description of the lands
transferred in trust to the City and County of San Francisco pursuant
to Chapter 1333 of the Statutes of 1968, recorded on May 14, 1976,
in Book C169, pages 573 to 664, inclusive, in the City and County of
San Francisco Assessor-Recorder's Office.
(e) "Brannan Street Wharf" means a major San Francisco waterfront
park in the area of Piers 34 and 36, as identified in the Special
Area Plan.
(f) "Burton Act" means Chapter 1333 of the Statutes of 1968, as
amended.
(g) "Burton Act trust" means the statutory trust imposed by the
Burton Act (Chapter 1333 of the Statutes of 1968, as amended),
pursuant to which the state conveyed to the City and County of San
Francisco, in trust, by transfer agreement, and subject to certain
terms, conditions, and reservations, the state's interest in certain
tide and submerged lands.
(h) "City" means the City and County of San Francisco.
(i) "McAteer-Petris Act" means Title 7.2 (commencing with Section
66600) of the Government Code.
(j) "Public trust" or "trust" means the public trust for commerce,
navigation, and fisheries.
(k) "Port" means the City and County of San Francisco acting by
and through the San Francisco Port Commission.
(l) "San Francisco Bay" means those areas defined in Section 66610
of the Government Code.
(m) "San Francisco waterfront" means those portions of the area
transferred to the Port pursuant to the Burton Act that also lie
within the area defined in subdivisions (a) and (b) of Section 66610
of the Government Code.
(n) "Seawall Lot 330" means that parcel of property located in San
Francisco identified on that certain map entitled SUR 790, and shown
on Page 318 of the City and County of San Francisco 100 Scale
Ownership Maps, which is on file with the city's Bureau of Street Use
and Mapping.
(o) "Shoreline band jurisdiction" means the jurisdiction, powers,
and duties of BCDC pursuant to Title 7.2 (commencing with Section
66600) of the Government Code to regulate uses within the area
defined in subdivision (b) of Section 66610 of the Government Code to
ensure, in part, maximum feasible public access, as prescribed in
Section 66632.4 of the Government Code.
(p) "Special Area Plan" means the San Francisco Waterfront Special
Area Plan, dated July 20, 2000, adopted by BCDC, as amended from
time to time.
(q) "Street" means those lands located within the South
Beach/China Basin Planning area of the San Francisco waterfront at
Seawall Lot 330, and also lying within Parcel A of those lands
transferred to the City and County of San Francisco pursuant to the
Burton Act, as recorded May 14, 1969, in Book C 169 at Pages 573 to
664, inclusive, in the San Francisco Assessor-Recorder's Office, as
more particularly described as that portion of Main Street, located
between Bryant Street and the Embarcadero, vacated per Ordinance
14-93 on January 11, 1993, on file with the San Francisco Bureau of
Street Use and Mapping, in Book 10, Page 94. All streets and street
lines described in the preceding sentence are in accordance with that
certain map entitled SUR 790, and shown on Page 318 of the City and
County of San Francisco 100 Scale Ownership Maps, on file with the
City's Bureau of Street Use and Mapping.
(r) "Waterfront Land Use Plan" means the Waterfront Land Use Plan,
including the Waterfront Design and Access Element, adopted by the
Port pursuant to Resolution No. 97-50, as amended from time to time.
SEC. 396. Section 13 of Chapter 673 of the Statutes of 2003 is
amended to read:
Sec. 13. (a) The provisions of this act are severable. If any
provision of this act or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application, except
as provided in subdivision (b) or (c).
(b) In the event that the provisions of Section 2160.1 of the
Labor Code are held invalid and this action is affirmed on final
appeal, an employer may qualify for a full credit for those amounts
spent for providing or reimbursing health care benefits, allowable by
state law as a deductible business expense if the amount spent
equals or exceeds the lower of the cost for the Healthy Families
Program or 150 percent of the cost for Medi-Cal 1931(b) coverage. In
no instance shall the amount of the credit exceed the amount of the
fee that would otherwise have been paid. The Employment Development
Department shall specify the manner and means of submitting proof to
obtain the credit.
(c) In the event that Chapter 8.7 (commencing with Section 2120)
of Division 2 of the Labor Code is held invalid, Article 3.11
(commencing with Section 1357.20) of Chapter 2.2 of Division 2 of the
Health and Safety Code and Chapter 8.1 (commencing with Section
11760) of Part 2 of Division 2 of the Insurance Code shall become
inoperative.
SEC. 397. Any section of any act enacted by the Legislature during
the 2004 calendar year that takes effect on or before January 1,
2005, 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 2004 calendar year and takes
effect on or before January 1, 2005, amends, amends and renumbers,
adds, repeals and adds, or repeals any section contained in that
article, chapter, part, title, or division.