BILL NUMBER: SB 1852 INTRODUCED
BILL TEXT
INTRODUCED BY Committee on Judiciary (Senators Dunn (Chair),
Ackerman, Escutia, and Kuehl)
APRIL 6, 2006
An act to amend Sections 690, 801, 809, 853, 2435.1, 2571, 3078,
4052, 4507, 6126.3, 6156, 6157, 7161, 7302, 7582.20, 7591.19, 7830.1,
9855.6, 11004.5, 12606.2, 14492, 17086, 17206.1, 17508, 17539.3,
18625, 18720, 18830, 19613.2, 21669.1, 22701, 22901, 22915, 23426.5,
and 25660 of the Business and Professions Code, to amend Sections
43.97, 51.4, 54.6, 56.21, 799.2.5, 846.1, 1363.04, 1363.07, 1761,
1786.10, 1788.2, 1789.37, 1812.85, 1812.106, 1812.306, 1812.501,
1834.8, 2945.3, 2945.9, 2954.7, 3052.5, 3262, and 3415 of, and to
amend and renumber Section 1812.97 of, the Civil Code, to amend
Sections 77, 94, 338, 417.10, 460.7, 1021.8, 1141.21, 1245.320, 1345,
1346, 1370, 1371, 1375, 1379, 1775.14, 1800, and 1985.6 of the Code
of Civil Procedure, to amend Section 16101 of the Commercial Code, to
amend Sections 118, 7312, 8724, 12663, 17104, and 25100.1 of the
Corporations Code, to amend Sections 1753, 1762, 7002.5, 8275,
8363.5, 8484.75, 8498, 8669, 8825, 12117, 17625, 19980, 22121, 24618,
32255, 32255.1, 33551, 35105, 41500, 42238.4, 44210, 44929.23,
44944, 45127, 45168.5, 47610, 47610.5, 47660, 49030, 49434, 49561,
49565.2, 49565.4, 52052, 52055.57, 52055.605, 52055.625, 52124,
52165, 52295.35, 52740, 56441, 58407, 58520, 60200, 66070, 66406,
66609, 69539, 69640, 76234, 81383, 81450, 81645, 88167.5, 89241,
89503, 89750.5, 92300, 92611.7, 94985, 94990, 99156, and 100603 of
the Education Code, to amend Sections 7154, 7854, 9086, 9096, 10225,
and 15375 of the Elections Code, to amend Section 1560 of the
Evidence Code, to amend Sections 274, 3046, 3121, 4905, 7605, and
9201 of the Family Code, to amend Sections 687, 1800, 5303, 6503,
7263, 7273, 7274, 7509, 7600, 12100, 14402, 18062, 18415.3, 21050,
and 22304 of the Financial Code, to amend Sections 854, 1122, 2120,
2125, 2127, 2150.4, 2765, 4190, 5653, 8277, 8278, 8494, 8495, 8610.7,
8615, 8841, 9023, 13007, and 15512 of the Fish and Game Code, and to
amend Sections 3955, 4054, 5774.5, 13127.92, 14978.2, 19314, 30801,
36805, 39901, 42684, 52295, 52891.1, 62069, 73053, 73202, 75022,
77373, 77375, 77554, and 77941 of the Food and Agriculture Code, to
amend Sections 800, 850.6, 905.3, 920, 925, 926.19, 965.1, 997.1,
998.2, 1151, 3515.7, 3539.5, 3543.1, 3549.1, 3572, 5906, 6254,
6254.26, 6577, 7072, 7509, 7520, 7901, 7907, 8902, 8652, 8894.1,
11007.6, 11014, 11030.1, 11030.2, 11031, 11125.7, 11125.8, 11270,
11275, 12467, 12807.5, 12838.1, 13300, 13332.09, 13905, 13972, 13973,
13974, 13974.1, 14084, 14670.4, 14682, 15202, 15492, 15815, 15952,
16302.1, 16304.6, 16366.3, 16383, 16431, 16585, 17051.5, 17201,
17520, 17553, 17556, 18708, 19583.5, 19583.51, 19792.5, 19815.4,
19816, 19816.4, 19816.6, 19879.1, 19999.2, 20035.6, 20094, 20163,
20462, 20805, 20808, 21095, 21223, 21265, 21752, 22100, 26749, 29965,
31461.1, 31469, 31470.25, 31485.12, 31585.1, 31691, 31691.1, 45002,
54957.1, 54999.5, 65050, 65852.9, 65971, 65973, 65974, 65979, 66000,
66017, 67401, 68058, 68059.15, 68503, 68506, 68511.3, 68543, 68543.5,
68543.8, 68565, 70622, 75560.4, 77202, 87102.6, 89513, 92201, 92251,
92268, and 92309 of, and to repeal Section 87104 of, the Government
Code, to amend Sections 72.4, 303, 444, 504, 508, 773.2, 1176, and
6037.4 of the Harbors and Navigation Code, to amend Sections 1250.3,
1267.19, 1276.8, 1312, 1357.09, 1399.811, 1418.8, 1451, 1531.1, 1558,
1568.09, 1568.092, 1569.58, 1596.816, 1596.847, 1596.8865,
1596.8897, 1765.145, 4730.8, 11162.1, 11502, 11571.1, 12701, 13052,
17021.6, 18080.5, 19161, 19165, 19982, 25159.12, 25200.6, 25205.1,
25208.2, 25208.8, 25208.17, 25215.4, 25283.1, 25370, 33080.7,
33320.4, 33333.6, 33334.2, 33334.22, 33446, 33476, 33492.78,
33492.86, 35816, 38012, 39941, 40440.2, 40717.6, 42840, 43200.1,
43812, 43867, 44037, 44090, 44366, 50660.5, 50896, 50896.1, 50896.2,
51504, 52020, 53533, 101630, 105195, 105215, 105280, 107040, 107065,
107080, 108310, 109350, 109360, 111080, 112025, 112030, 113844,
113955, 114400, 115040, 115061, 115255, 116050, 116660, 117100,
120425, 120830, 120875, 121110, 121270, 121275, 121520, 122070,
127575, 129890, and 150204 of, and to repeal Section 113843 of, the
Health and Safety Code, to amend Sections 134, 481.5, 676.2, 750.4,
1063.145, 1140.5, 1734.5, 1735, 1763.2, 1781.7, 1802.5, 1842, 1874.2,
1903, 10123.141, 10133.56, 10136, 10203.4, 10203.5, 10203.8, 10209,
10350.2, 11580.1, 11872, 12640.02, 12698.50, 12698.54, and 15039 of
the Insurance Code, to amend Sections 98, 142.4, 226.4, 243, 270.6,
1182.6, 1289, 1301, 1302, 2686, 2855, 3364, 4753.5, 5277, 5307.1,
5907, 6315.3, 7384, and 7994 of the Labor Code, to amend Section 340
of the Military and Veterans Code, to amend Sections 171d, 186.2,
273.7, 290, 290.6, 652, 987.9, 1037.1, 1191.2, 1203.066, 1524, 1557,
2786, 2800, 3003, 4017.1, 4900, 4901, 4902, 4904, 4905, 4906, 5001,
5009, 5071, 5076.1, 6024, 11163, 11172, 12021, 12280, 13603, 13810,
13826.7, 13835.2, and 14030 of, and to repeal Section 13300.1 of, the
Penal Code, to amend Sections 6108, 10240.5, 10329, 12183, 20105,
20118.4, 20133, 20407, 20448, 20450, 20451, 20452, 20456, 20487,
20522, 20563, 20582, 20688.2, 20853, 20894, 21020.8, 21040, 21071,
21471, and 21601 of, and to repeal the heading of Article 3
(commencing with Section 9201) of Chapter 9 of Part 1 of Division 2
of, the Public Contract Code, to amend Sections 2776, 4116, 4144,
4516.6, 4602.6, 5006.48, 5080.06, 5080.36, 5096.514, 5141.1, 5366,
5671, 6314, 6925.2, 8710, 9084, 21080.24, 21151.1, 21167.1, 25135,
25302.5, 26032, 26569.5, 29305, 29735, 30118.5, 30166, 30170,
30171.2, 30222.5, 30315.1, 30608, 30610.4, 30610.6, 30716, 31163,
31258, 32103, 33201, 33207.5, 42463, 42888, 42891, 43500, 44820,
49161, and 71081 of the Public Resources Code, to amend Sections
95.2, 531.7, 862, 2188.5, 2700, 4676, 4703.3, 6067, 6201.2, 6376.1,
6902.3, 9270, 11317, 11923, 13153, 17052.6, 19191, 20621, 23060,
23202, 23305b, 32364, 32475, 41120, 41176, 45304, 45451, 45872,
46442, 50124, and 50145 of the Revenue and Taxation Code, to amend
Sections 156.3, 188.6, 2117, 6491.5, and 30162 of the Streets and
Highways Code, to amend Sections 1222, 1256.5, 1262, 1855, 3254.5,
4701, 9608, 10200, 13002, and 13021 of the Unemployment Insurance
Code, to amend Sections 1671, 2423, 11713.1, 12509, 12811, 14602.6,
15242, 17155, 23109, 24011.3, 27360, 29008, 35106, 40512, and 42001
of the Vehicle Code, to amend Sections 359, 5003, 8617.5, 10631,
12625, 12879.2, 12899.6, 12899.7, 12929.12, 13385.1, 13465, 13611,
13999.8, 20527.11, 23178, and 41027 of the Water Code, to amend
Sections 241.1, 319, 1752.81, 1773, 1800, 1800.5, 2017, 3150, 3151,
4127, 4242, 4461, 4839, 5723.5, 7328, 7515, 10053, 11212, 11450.019,
11495.25, 14092.35, 14125.9, 14148.9, 14166.18, 14171.5, 14171.6,
14504, 15634, 15655.5, 16500.1, 16583, 16800.7, 17800, 18325.5, and
18906.5 of the Welfare and Institutions Code, and to amend Section 1
of Chapter 260 of the Statutes of 2004, Section 31.5 of the Orange
County Water District Act (Chapter 924 of the Statutes of 1933),
Section 12 of the Lake County Flood Control and Water Conservation
District Act (Chapter 1544 of the Statutes of 1951), Section 87 of
the San Diego Unified Port District Act (Chapter 67 of the Statutes
of 1962, First Extraordinary Session), Section 26.9 of the Santa
Clara Valley Water District Act (Chapter 1405 of the Statutes of
1951), Section 8 of the San Mateo County Flood Control District Act
(Chapter 2108 of the Statutes of 1959), Section 26.7 of the Santa
Clara Valley Water District Act (Chapter 1405 of the Statutes of
1951), Section 45 of the Monterey County Water Resources Agency Act
(Chapter 1159 of the Statutes of 1990), Section 510 of the Pajaro
Valley Water Management Agency Act (Chapter 257 of the Statutes of
1984), Section 408 of Chapter 688 of, and Section 408 of Chapter 689
of, the Statutes of 1984, Section 602 of Chapter 1023 of the Statutes
of 1982, Section 87 of the San Diego Unified Port District Act
(Chapter 67 of the Statutes of 1962, First Extraordinary Session),
Section 5.5 of the Santa Barbara County Floor Control and Water
Conservation District Act (Chapter 1057 of the Statutes of 1955), and
Sections 13 and 16 of the Humboldt Bay Harbor, Recreation, and
Conservation District Act (Chapter 1283 of the Statutes of 1970),
relating to the maintenance of the codes.
LEGISLATIVE COUNSEL'S DIGEST
SB 1852, as introduced, 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.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 690 of the Business and Professions Code is
amended to read:
690. (a) Except as provided in Section 4601 of the Labor Code and
Section 2627 of the Unemployment Insurance Code, neither the
administrators, agents, or employees of any program supported, in
whole or in part, by funds of the State of California, nor any state
agency, county, or city of the State of California, nor any officer,
employee, agent, or governing board of a state agency, county, or
city in the performance of its, his, or her duty, duties, function
, or functions, shall prohibit any person, who is entitled
to vision care that may be rendered by either an optometrist or a
physician and surgeon within the scope of his or her license, from
selecting a duly licensed member of either profession to render the
service, provided the member has not been removed or suspended from
participation in the program for cause.
(b) Whenever any person has engaged, or is about to engage, in any
acts or practices that constitute, or will constitute, a violation
of this section, the superior court in and for the county wherein the
acts or practices take place, or are about to take place, may issue
an injunction, or other appropriate order, restraining the conduct on
application of the Attorney General, the district attorney of the
county, or any person aggrieved.
For purposes of this subdivision, "person aggrieved" means the
person who seeks the particular medical or optometric services
mentioned herein in this section , or
the holder of any certificate who is discriminated against in
violation of this section.
(c) Nothing contained in this section shall prohibit any agency
operating a program of services, including, but not limited to, a
program established pursuant to Article 5 (commencing with Section
123800) of Chapter 3 of Part 2 of Division 106 of the Health and
Safety Code or Chapter 10.5 (commencing with Section 6971),
Chapter 11 (commencing with Section 7001), or Chapter 11.5
(commencing with Section 7041) of Division 6 of the Education Code
, from preparing lists of healing arts licensees and
requiring patients to select a licensee on the list as a condition to
payment by the program for the services, except that if the lists
are established and a particular service may be performed by either a
physician and surgeon or an optometrist the list shall contain a
sufficient number of licensees so as to assure the patients an
adequate choice.
SEC. 2. Section 801 of the Business and Professions Code is
amended to read:
801. (a) Every insurer providing professional liability insurance
to a person who holds a license, certificate, or similar authority
from or under any agency mentioned in subdivision (a) of Section 800
(except , except as provided in
subdivisions (b), (c), (d), and (e)) (e),
shall send a complete report to that agency as to any
settlement or arbitration award over three thousand dollars ($3,000)
of a claim or action for damages for death or personal injury caused
by that person's negligence, error, or omission in practice, or by
his or her rendering of unauthorized professional services. The
report shall be sent within 30 days after the written settlement
agreement has been reduced to writing and signed by all parties
thereto or within 30 days after service of the arbitration award on
the parties.
(b) Every insurer providing professional liability insurance to a
physician and surgeon licensed pursuant to Chapter 5 (commencing with
Section 2000) or the Osteopathic Initiative Act shall send a
complete report to the Medical Board of California or the Osteopathic
Medical Board of California, as appropriate, as to any settlement
over thirty thousand dollars ($30,000) ; or ,
arbitration award of any amount ; ,
or civil judgment of any amount, whether or not vacated by a
settlement after entry of the judgment, that was not reversed on
appeal ; , of a claim or action for
damages for death or personal injury caused by that person's
negligence, error, or omission in practice, or by his or her
rendering of unauthorized professional services. A settlement over
thirty thousand dollars ($30,000) shall also be reported if the
settlement is based on the licensee's negligence, error, or omission
in practice, or by the licensee's rendering of unauthorized
professional services, and a party to the settlement is a
corporation, medical group, partnership, or other corporate entity in
which the licensee has an ownership interest or that employs or
contracts with the licensee. The report shall be sent within 30 days
after the written settlement agreement has been reduced to writing
and signed by all parties thereto, within 30 days after service of
the arbitration award on the parties, or within 30 days after the
date of entry of the civil judgment.
(c) Every insurer providing professional liability insurance to a
person licensed pursuant to Chapter 13 (commencing with Section 4980)
or Chapter 14 (commencing with Section 4990) shall send a complete
report to the Board of Behavioral Science Examiners as to any
settlement or arbitration award over ten thousand dollars ($10,000)
of a claim or action for damages for death or personal injury caused
by that person's negligence, error, or omission in practice, or by
his or her rendering of unauthorized professional services. The
report shall be sent within 30 days after the written settlement
agreement has been reduced to writing and signed by all parties
thereto or within 30 days after service of the arbitration award on
the parties.
(d) Every insurer providing professional liability insurance to a
dentist licensed pursuant to Chapter 4 (commencing with Section 1600)
shall send a complete report to the Dental Board of California as to
any settlement or arbitration award over ten thousand dollars
($10,000) of a claim or action for damages for death or personal
injury caused by that person's negligence, error, or omission in
practice, or rendering of unauthorized professional services. The
report shall be sent within 30 days after the written settlement
agreement has been reduced to writing and signed by all parties
thereto or within 30 days after service of the arbitration award on
the parties.
(e) Every insurer providing liability insurance to a veterinarian
licensed pursuant to Chapter 60 11
(commencing with Section 4825) 4800)
shall send a complete report to the Veterinary Medical Board of any
settlement or arbitration award over ten thousand dollars ($10,000)
of a claim or action for damages for death or injury caused by that
person's negligence, error, or omission in practice, or rendering of
unauthorized professional service. The report shall be sent within 30
days after the written settlement agreement has been reduced to
writing and signed by all parties thereto or within 30 days after
service of the arbitration award on the parties.
(f) The insurer shall notify the claimant, or if the claimant is
represented by counsel, the insurer shall notify the claimant's
attorney, that the report required by subdivision (a), (b), (c), or
(d) has been sent to the agency. If the attorney has not received
this notice within 45 days after the settlement was reduced to
writing and signed by all of the parties, the arbitration award was
served on the parties, or the date of entry of the civil judgment,
the attorney shall make the report to the agency.
(g) Notwithstanding any other provision of law, no insurer shall
enter into a settlement without the written consent of the insured,
except that this prohibition shall not void any settlement entered
into without that written consent. The requirement of written consent
shall only be waived by both the insured and the insurer. This
section shall only apply to a settlement on a policy of insurance
executed or renewed on or after January 1, 1971.
SEC. 3. Section 809 of the Business and Professions Code is
amended to read:
809. (a) The Legislature hereby finds and declares the following:
(1) In 1986, Congress enacted the Health Care Quality Improvement
Act of 1986 (Chapter 117 (commencing with Section 11101) Title 42,
United States Code), to encourage physicians to engage in effective
professional peer review, but giving each state the
opporunity opportunity to "opt-out" of some of
the provisions of the federal act.
(2) Because of deficiencies in the federal act and the possible
adverse interpretations by the courts of the federal act, it is
preferable for California to "opt-out" of the federal act and design
its own peer review system.
(3) Peer review, fairly conducted, is essential to preserving the
highest standards of medical practice.
(4) Peer review which that is not
conducted fairly results in harm both to patients and healing arts
practitioners by limiting access to care.
(5) Peer review, fairly conducted, will aid the appropriate state
licensing boards in their responsibility to regulate and discipline
errant healing arts practitioners.
(6) To protect the health and welfare of the people of California,
it is the policy of the State of California to exclude, through the
peer review mechanism as provided for by California law, those
healing arts practitioners who provide substandard care or who engage
in professional misconduct, regardless of the effect of that
exclusion on competition.
(7) It is the intent of the Legislature that peer review of
professional health care services be done efficiently, on an ongoing
basis, and with an emphasis on early detection of
potential quality problems and resolutions through informal
educational interventions.
(8) Sections 809 to 809.8, inclusive, shall not affect the
respective responsibilities of the organized medical staff or the
governing body of an acute care hospital with respect to peer review
in the acute care hospital setting. It is the intent of the
Legislature that written provisions implementing Sections 809 to
809.8, inclusive, in the acute care hospital setting shall be
included in medical staff bylaws which that
shall be adopted by a vote of the members of the organized
medical staff and which shall be subject to
governing body approval, which approval shall not be withheld
unreasonably.
(9) (A) The Legislature thus finds and declares that the laws of
this state pertaining to the peer review of healing arts
practitioners shall apply in lieu of Chapter 117 (commencing with
Section 11101) of Title 42 of the United States Code, because the
laws of this state provide a more careful articulation of the
protections for both those undertaking peer review activity and those
subject to review, and better integrates
integrate public and private systems of peer review. Therefore,
California exercises its right to opt out of specified provisions of
the Health Care Quality Improvement Act relating to professional
review actions, pursuant to subparagraph (B) of paragraph
(2) of subdivision (c) of Section 11111 of Chapter 117
Section 11111(c)(2)(B) of Title 42 of the United States Code.
This election shall not affect the availability of any immunity under
California law.
(B) The Legislature further declares that it is not the intent or
purposes of Sections 809 to 809.8, inclusive, to opt out of any
mandatory national data bank established pursuant to Subchapter II
(commencing with Section 11131) of Chapter 117 of Title 42 of the
United States Code.
(b) For the purpose of this section and Sections 809.1 to 809.8,
inclusive, "healing arts practitioner" or "licentiate" means a
physician and surgeon, podiatrist, clinical psychologist, or dentist;
and "peer review body" means a peer review body as specified in
paragraph (1) of subdivision (a) of Section 805, and includes any
designee of the peer review body.
SEC. 4. 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 Ginocologia Ginecologia y
Obstetricia, A.C., the Consejo Mexicano de Certificacion
Certificacin en Medicina Familiar, A.C., the
Consejo Mexicano de Medicina Interna, A.C., or the Consejo Mexicano
de Certificacion Certificacion en
Pediatria 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 the National Autonomous
University of Mexico (UNAM) 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 of the
Business and Professions Code . 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
English-as-a-second-language (ESL) 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 board for verification.
Transcripts of satisfactory completion of the ESL classes shall be
submitted to the Medical Board of California 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 free standing health
care organization that has authority to provide medical quality
certification, including, but not limited to, health plans,
hospitals, and the Integrated Physician Association, shall
be 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
Medical Board of California 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)
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)
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 infection control approved 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, or the National
Autonomous University of Mexico School of Faculty Dentistry (Facultad
de Odontologia) 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 dental 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 Dental Board of
California
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
either the National Autonomous University of Mexico
UNAM or a foreign dental school approved by the
board Dental Board of California , 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. 5. Section 2435.1 of the Business and Professions Code is
amended to read:
2435.1. (a) In addition to the fees charged for the initial
issuance or biennial renewal of a physician and surgeon's certificate
pursuant to Section 2435, and at the time those fees are charged,
the board shall charge each applicant or renewing licensee an
additional twenty-five dollar ($25) fee for the purposes of this
section.
(b) Payment of this twenty-five dollar ($25) fee shall be
voluntary, and shall be paid at the time of
application for initial licensure or biennial renewal, the
twenty-five dollar ($25) fee shall be and due
and payable along with the fee for the initial certificate or
biennial renewal.
(c) The board shall transfer all funds collected pursuant to this
section, on a monthly basis, to the Office of Statewide Health
Planning and Development to augment the local assistance line item of
the annual Budget Act in support of the Song-Brown Family Physician
Training Act (Chapter 1 (commencing with Section 69270) of
Part 42 of the Education (Article 1 (commencing with
Section 128200) of Chapter 4 of Part 3 of Division 107 of the Health
and Safety Code).
SEC. 6. Section 2571 of the Business and Professions Code is
amended to read:
2571. (a) An occupational therapist licensed pursuant to this
chapter and certified by the board in the use of physical agent
modalities may apply topical medications prescribed by the patient's
physician and surgeon, certified nurse-midwife pursuant to Section
2746.51, nurse practitioner pursuant to Section 2936.1
2836.1 , or physician assistant pursuant to
Section 3502.1, if the licensee complies with regulations adopted by
the board pursuant to this section.
(b) The board shall adopt regulations implementing this section
, after meeting and conferring with the Medical Board of
California, the California State Board of Pharmacy, and the Physical
Therapy Board of California , specifying those topical
medications applicable to the practice of occupational therapy
, and protocols for their use.
(c) Nothing in this section shall be construed to authorize an
occupational therapist to prescribe medications.
SEC. 7. Section 3078 of the Business and Professions Code is
amended to read:
3078. (a) It is unlawful to practice
optometry under a false or assumed name, or to use a false or assumed
name in connection with the practice of optometry, or to make use of
any false or assumed name in connection with the name of a person
licensed pursuant to this chapter. However, the board may issue
written permits authorizing an individual optometrist or an
optometric group or optometric corporation to use a name specified in
the permit in connection with its practice if, and only if, the
board finds to its satisfaction that all of
the following :
(a)
(1) The place or establishment, or the portion thereof,
in which the applicant or applicants practice, is owned or leased by
the applicant or applicants, and the practice conducted at that
place or establishment, or portion thereof, is wholly owned and
entirely controlled by the applicant or applicants ;
provided, however, that where . However, if the
applicant or applicants are practicing optometry in a community
clinic, as defined in subdivision (a) of Section 1204 of the Health
and Safety Code, this subdivision shall not apply.
(b)
(2) The name under which the applicant or applicants
propose to operate is in the judgment of the board not deceptive or
inimical to enabling a rational choice for the consumer public and
contains at least one of the following designations: "optometry" or
"optometric"; provided, however, that where
"optometric." However, if the applicant or applicants are
practicing optometry in a community clinic, as defined in subdivision
(a) of Section 1204 of the Health and Safety Code, this subdivision
shall not apply. In no case shall the name under which the applicant
or applicants propose to operate contain the name or names of any of
the optometrists practicing in the community clinic.
(c)
(3) The names of all optometrists practicing at the
location designated in the application are displayed in a conspicuous
place for the public to see, not only at the location, but also in
any advertising permitted by law.
(d)
(4) No charges which that
could result in revocation or suspension of an optometrist's license
to practice optometry are pending against any optometrist practicing
at the location.
(b) Permits issued under this section by the
board shall expire and become invalid unless renewed at the times
and in the manner provided in Article 7 (commencing with Section
3145) for the renewal of licenses issued under this chapter. The
board may charge an annual fee, not to exceed ten dollars ($10) for
the issuance or renewal of each permit.
Any
(c) A permit issued under this
section may be revoked or suspended at any time that the board finds
that any one of the requirements for original issuance of a permit,
other than under paragraph (4) of subdivision (d)
(a) , is no longer being fulfilled by the
individual optometrist, optometric corporation, or optometric group
to whom the permit was issued. Proceedings for revocation or
suspension shall be governed by the Administrative Procedure Act.
In the event
(d) If the board revokes or
suspends the licenses license to
practice optometry of an individual optometrist or any member of a
corporation or group to whom a permit has been issued under this
section, the revocation or suspension shall also constitute
revocation or suspension, as the case may be, of the permit.
SEC. 8. Section 4052 of the Business and Professions Code is
amended to read:
4052. (a) Notwithstanding any other provision of law, a
pharmacist may 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 . The
administration of immunizations under the supervision of a prescriber
may also be performed outside of a licensed health care
facility) 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 . The
administration of immunizations under the supervision of a prescriber
may also be performed outside of a licensed health care
facility) facility .
(iv) Initiating or adjusting the drug regimen of a patient
pursuant to a specific written order or authorization made by the
individual patient's treating prescriber, 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
treating 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 treating 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 treating 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 Pharmacist 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 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 This section do
does not preclude the use of existing
publications developed by nationally recognized medical
organizations.
(c) A pharmacist who is authorized to issue an order to initiate
or adjust a controlled substance therapy pursuant to this section
shall personally register with the federal Drug Enforcement
Administration.
(d) Nothing in this section shall affect the requirements of
existing law relating to maintaining the confidentiality of medical
records.
(e) Nothing in this section shall affect the requirements of
existing law relating to the licensing of a health care facility.
SEC. 9. Section 4507 of the Business and Professions Code is
amended to read:
4507. This chapter shall not apply to the following:
(a) Physicians and surgeons licensed pursuant to Chapter 5
(commencing with Section 2000) of Division 2.
(b) Psychologists licensed pursuant to Chapter 6.6 (commencing
with Section 2900) of Division 2.
(c) Registered nurses licensed pursuant to Chapter 6 (commencing
with Section 2700) of Division 2.
(d) Vocational nurses licensed pursuant to Chapter 6.5 (commencing
with Section 2840) of Division 2.
(e) Social workers or clinical social workers licensed pursuant to
Chapter 17 (commencing with Section 9000) of Division 3.
(f) Marriage and family therapists licensed pursuant to Chapter 13
(commencing with Section 4980) of Division 2.
(g) Teachers credentialed pursuant to Chapter 1.5
(commencing with Section 13101) of Division 10 Article
1 (commencing with Section 44200) of Chapter 2 of Part 25 of
the Education Code.
(h) Occupational therapists as specified in Chapter 5.6
(commencing with Section 2570) of Division 2.
(i) Art therapists, dance therapists, music therapists, and
recreation therapists, as defined in Division 5 (commencing with
Section 70001) of Title 22 of the California Administrative
Code of Regulations , who are personnel of
health facilities licensed pursuant to Chapter 2 (commencing with
Section 1250) of Division 2 of the Health and Safety Code.
(j) Any other categories of persons the board determines are
entitled to exemption from this chapter because they have complied
with other licensing provisions of this code or because they are
deemed by statute or by regulations contained in the California
Administrative Code of Regulations to
be adequately trained in their respective occupations. The exemptions
shall apply only to a given specialized area of training within the
specific discipline for which the exemption is granted.
SEC. 10. Section 6126.3 of the Business and Professions Code is
amended to read:
6126.3. (a) In addition to any criminal penalties pursuant to
Section 6126 or to any contempt proceedings pursuant to Section 6127,
the courts of the state shall have the jurisdiction provided in this
section when a person advertises or holds himself or herself out as
practicing or entitled to practice law, or otherwise practices law,
without being an active member of the State Bar or otherwise
authorized pursuant to statute or court rule to practice law in this
state at the time of doing so.
(b) The State Bar, or the superior court on its own motion, may
make application to the superior court for the county where the
person described in subdivision (a) maintains or more recently has
maintained his or her principal office for the practice of law or
where he or she resides, for assumption by the court of jurisdiction
over the practice to the extent provided in this section. In any
proceeding under this section, the State Bar shall be permitted to
intervene and to assume primary responsibility for conducting the
action.
(c) An application made pursuant to subdivision (b) shall be
verified, and shall state facts showing all of the following:
(1) Probable cause to believe that the facts set forth in
subdivision (a) of Section 6126 have occurred.
(2) The interest of the applicant.
(3) Probable cause to believe that the interests of a client or of
an interested person or entity will be prejudiced if the proceeding
is not maintained.
(d) The application shall be set for hearing, and an order to show
cause shall be issued directing the person to show cause why the
court should not assume jurisdiction over the practice as provided in
this section. A copy of the application and order to show cause
shall be served upon the person by personal delivery or, as an
alternate method of service, by certified or registered mail, return
receipt requested, addressed to the person either at the address at
which he or she maintains, or more recently has maintained, his or
her principal office or at the address where he or she resides.
Service is complete at the time of mailing, but any prescribed period
of notice and any right or duty to do any act or make any response
within that prescribed period or on a date certain after notice is
served by mail shall be extended five days if the place of address is
within the State of California, 10 days if the place of address is
outside the State of California but within the United States, and 20
days if the place of address is outside the United States. If the
State Bar is not the applicant, copies shall also be served upon the
Office of the Chief Trial Counsel of the State Bar
in similar manner at the time of
service on the person who is the subject of the application. The
court may prescribe additional or alternative methods of service of
the application and order to show cause, and may prescribe methods of
notifying and serving notices and process upon other persons and
entities in cases not specifically provided herein.
(e) If the court finds that the facts set forth in subdivision (a)
of Section 6126 have occurred and that the interests of a client or
an interested person or entity will be prejudiced if the proceeding
provided herein is not maintained, the court may make an order
assuming jurisdiction over the person's practice pursuant to this
section. If the person to whom the order to show cause is directed
does not appear, the court may make its order upon the verified
application or upon such proof as it may require. Thereupon, the
court shall appoint one or more active members of the State Bar to
act under its direction to mail a notice of cessation of practice,
pursuant to subdivision (g), and may order those appointed attorneys
to do one or more of the following:
(1) Examine the files and records of the practice and obtain
information as to any pending matters that may require attention.
(2) Notify persons and entities who appear to be clients of the
person of the occurrence of the event or events stated in subdivision
(a) of Section 6126, and inform them that it may be in their best
interest to obtain other legal counsel.
(3) Apply for an extension of time pending employment of legal
counsel by the client.
(4) With the consent of the client, file notices, motions, and
pleadings on behalf of the client where jurisdictional time limits
are involved and other legal counsel has not yet been obtained.
(5) Give notice to the depositor and appropriate persons and
entities who may be affected, other than clients, of the occurrence
of the event or events.
(6) Arrange for the surrender or delivery of clients' papers or
property.
(7) Arrange for the appointment of a receiver, where applicable,
to take possession and control of any and all bank accounts relating
to the affected person's practice.
(8) Do any other acts that the court may direct to carry out the
purposes of this section.
The court shall have jurisdiction over the files and records and
over the practice of the affected person for the limited purposes of
this section, and may make all orders necessary or appropriate to
exercise this jurisdiction. The court shall provide a copy of any
order issued pursuant to this section to the Office of the Chief
Trial Counsel of the State Bar.
(f) Anyone examining the files and records of the practice of the
person described in subdivision (a) shall observe any lawyer-client
privilege under Sections 950 and 952 of the Evidence Code and shall
make disclosure only to the extent necessary to carry out the
purposes of this section. That disclosure shall be a disclosure that
is reasonably necessary for the accomplishment of the purpose for
which the person described in subdivision (a) was consulted. The
appointment of a member of the State Bar pursuant to this section
shall not affect the lawyer-client privilege, which privilege shall
apply to communications by or to the appointed members to the same
extent as it would have applied to communications by or to the person
described in subdivision (a).
(g) The notice of cessation of law practice shall contain any
information that may be required by the court, including, but not
limited to, the finding by the court that the facts set forth in
subdivision (a) of Section 6126 have occurred and that the court has
assumed jurisdiction of the practice. The notice shall be mailed to
all clients, to opposing counsel, to courts and agencies in which the
person has pending matters with an identification of the matter, to
the Office of the Chief Trial Counsel of the State Bar, and to any
other person or entity having reason to be informed of the court's
assumption of the practice.
(h) Nothing in this section shall authorize the court or an
attorney appointed by it pursuant to this section to approve or
disapprove of the employment of legal counsel, to fix terms of legal
employment, or to supervise or in any way undertake the conduct of
the practice, except to the limited extent provided by paragraphs (3)
and (4) of subdivision (e).
(i) Unless court approval is first obtained, neither the attorney
appointed pursuant to this section, nor his or her corporation, nor
any partner or associates associate of
the attorney shall accept employment as an attorney by any client of
the affected person on any matter pending at the time of the
appointment. Action taken pursuant to paragraphs (3) and (4) of
subdivision (e) shall not be deemed employment for purposes of this
subdivision.
(j) Upon a finding by the court that it is more likely than not
that the application will be granted and that delay in making the
orders described in subdivision (e) will result in substantial injury
to clients or to others, the court, without notice or upon notice as
it shall prescribe, may make interim orders containing any
provisions that the court deems appropriate under the circumstances.
Such an interim order shall be served in the manner provided in
subdivision (d) and, if the application and order to show cause have
not yet been served, the application and order to show cause shall be
served at the time of serving the interim order.
(k) No person or entity shall incur any liability by reason of the
institution or maintenance of a proceeding brought under this
section. No person or entity shall incur any liability for an act
done or omitted to be done pursuant to order of the court under this
section. No person or entity shall be liable for failure to apply for
court jurisdiction under this section. Nothing in this section shall
affect any obligation otherwise existing between the affected person
and any other person or entity.
(l) An order pursuant to this section is not appealable and shall
not be stayed by petition for a writ, except as ordered by the
superior court or by the appellate court.
(m) A member of the State Bar appointed pursuant to this section
shall serve without compensation. However, the member may be paid
reasonable compensation by the State Bar in cases where the State Bar
has determined that the member has devoted extraordinary time and
services that were necessary to the performance of the member's
duties under this article. All payments of compensation for time and
services shall be at the discretion of the State Bar. Any member
shall be entitled to reimbursement from the State Bar for necessary
expenses incurred in the performance of the member's duties under
this article. Upon court approval of expenses or compensation for
time and services, the State Bar shall be entitled to reimbursement
therefor from the person described in subdivision (a) or his or her
estate.
SEC. 11. Section 6156 of the Business and Professions Code is
amended to read:
6156. (a) Any individual, partnership, association, corporation,
or other entity, including, but not limited to, any person or entity
having an ownership interest in a lawyer referral service,
which that engages, has engaged, or proposes to
engage in violations of Section 6155, shall be liable for a civil
penalty as defined in Sections 17206, 17206.1, and 17536,
respectively, which shall be assessed and recovered in a civil action
brought:
(1) In the manner specified in subdivision (a) of Section 17206 or
Section 17536.
(2) By the State Bar of California.
(b) If the action is brought pursuant to subdivision (a), the
court shall determine the reasonable expenses, if any, incurred by
the State Bar in its investigation and prosecution of the action. In
these cases, before any penalty collected is paid out pursuant to
subdivision (b) of Section 17206 or Section 17536, the
amount of the reasonable expenses incurred by the State Bar shall be
paid to the State Bar and shall be deposited and used as provided in
subdivision (c).
(c) If the action is brought pursuant to paragraph (2) of
subdivision (a), the civil penalty shall be paid to the State Bar and
shall be deposited into a special fund to be used first for the
investigation and prosection prosecution
of other such cases by the State Bar, with any excess to be
used for the investigation and prosecution of attorney discipline
cases.
SEC. 12. Section 6157 of the Business and Professions Code is
amended to read:
6157. As used in this article, the following definitions apply:
(a) "Member" means a member in good standing of the State Bar and
includes any agent of the member and any law firm or law corporation
doing business in the State of California.
(b) "Lawyer" means a member of the State Bar or a person who is
admitted in good standing and eligible to practice before the bar of
any United States court or the highest court of the District of
Columbia or any state, territory, or insular possession of the United
States, or is licensed to practice law in, or is admitted in good
standing and eligible to practice before the bar of the highest court
of, a foreign country or any political subdivision thereof, and
includes any agent of the lawyer or ,
law firm , or law corporation doing business in the
this state.
(c) "Advertise" or "advertisement" means any communication,
disseminated by television or radio, by any print medium ,
including, but not limited to, newspapers and billboards, or by
means of a mailing directed generally to members of the public and
not to a specific person, that solicits employment of legal services
provided by a member, and is directed to the general public and is
paid for by, or on the behalf of, an attorney.
(d) "Electronic medium" means television, radio, or computer
networks.
SEC. 13. Section 7161 of the Business and Professions Code is
amended to read:
7161. It is a misdemeanor for any person to engage in any of the
following acts, the commission of which shall be cause for
disciplinary action against any licensee or applicant:
(a) Using false, misleading, or deceptive advertising as an
inducement to enter into any contract for a work of improvement,
including, but not limited to, any home improvement contract, whereby
any member of the public may be misled or injured.
(b) Making any substantial misrepresentation in the procurement of
a contract for a home improvement or other work of improvement or
making any false promise of a character likely to
influence, persuade , or , induce any
person to enter into such a the
contract.
(c) Any fraud in the execution of, or in the material alteration
of , any contract, trust deed, mortgage, promissory note,
or other document incident to a home improvement transaction or other
transaction involving a work of improvement.
(d) Preparing or accepting any trust deed, mortgage, promissory
note, or other evidence of indebtedness upon the obligations of a
home improvement transaction or other transaction for a work of
improvement with knowledge that it specifies a greater monetary
obligation than the consideration for the improvement work, which
consideration may be a time sale price.
(e) Directly or indirectly publishing any advertisement relating
to home improvements or other works of improvement which
that contains an assertion, representation
, or statement of fact which that
is false, deceptive, or misleading, or by any means advertising
or purporting to offer to the general public any such
this improvement work with the intent not to
accept contracts for the particular work or at the price
which that is advertised or offered to the
public, except that any advertisement which
that is subject to and complies with the existing rules,
regulations , or guides of the Federal Trade Commission
shall not be deemed false, deceptive , or misleading.
(f) Any person who violates subdivision (b), (c), (d), or (e) as
part of a plan or scheme to defraud an owner of a residential or
nonresidential structure, including a mobilehome or manufactured
home, in connection with the offer or performance of repairs to the
structure for damage caused by a natural disaster, shall be ordered
by the court to make full restitution to the victim based on the
person's ability to pay, as defined in subdivision (e) of Section
1203.1b of the Penal Code. In addition to full restitution ,
and imprisonment as authorized by this section, the court
may impose a fine of not less than five hundred dollars ($500) nor
more than twenty-five thousand dollars ($25,000), based upon the
defendant's ability to pay. This subdivision applies to natural
disasters for which a state of emergency is proclaimed by the
Governor pursuant to Section 8625 of the Government Code or for which
an emergency or major disaster is declared by the President of the
United States.
SEC. 14. Section 7302 of the Business and Professions Code is
amended to read:
7302. The following definitions shall apply for purposes of this
chapter:
(a) "Department" means the Department of Consumer Affairs.
(b) "Director" means the Director of Consumer Affairs.
(c) "Board" or "bureau" means the State Board of Barbering and
Cosmetology.
(d) "Executive officer officer
" means the executive officer of the State Board of Barbering
and Cosmetology.
SEC. 15. Section 7582.20 of the Business and Professions Code is
amended to read:
7582.20. (a) Every advertisement by a licensee soliciting or
advertising business shall contain his or her name, address ,
and license number as they appear in the records of the bureau.
For the purpose of this section, "advertisement" includes any
business card, stationary stationery ,
brochure, flyer, circular, newsletter, fax form, printed or published
paid advertisement in any media form, or telephone book listing.
Every advertisement by a licensee soliciting or advertising the
licensee's business shall contain his or her business name, business
address or business telephone number, and license number, as they
appear in the records of the bureau.
(b) The director may assess a fine of two hundred fifty dollars
($250) per violation of subdivision (a).
SEC. 16. Section 7591.19 of the Business and Professions Code is
amended to read:
7591.19. (a) (1) An alarm company operator,
qualified manager, or alarm agent may request a review by the Alarm
Company Operator Disciplinary Review Committee to contest the
assessment of an administrative fine or to appeal a denial,
revocation, or suspenison suspension
unless the denial or suspension is ordered by the director in
accordance with Chapter 5 (commencing with Section 11500) of Part 1
of Division 3 of Title 2 of the Government Code or in accordance with
Section 7591.8 of this code .
(2) A request for a review shall be by
written notice to the bureau within 30 days of the issuance of the
citation and assessment, denial , or suspension.
(3) Following a review by the disciplinary
review committee, the appellant shall be notified within 30 days, in
writing, by regular mail, of the committee's decision.
(4) If the appellant disagrees with the
decision made by the Alarm Company Operator Disciplinary Review
Committee, he or she may request a hearing as outlined in subdivision
(b). A request for a hearing following a decision by the
disciplinary review committee shall be by written notice to the
bureau within 30 days of the committee's decision.
(5) If the appellant does not request a
hearing within 30 days, the review committee's decision shall become
final.
(b) (1) An alarm company operator, qualified
manager, or alarm agent may request a hearing in accordance with
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code if he or she contests an assessment of
an administrative fine, or to appeal a denial, suspension, or
revocation. A hearing may also be requested if the appellant
disagrees with the decision made by the Alarm Company Operator
Disciplinary Review Committee.
(2) A request for a hearing shall be by
written notice to the bureau within 30 days of the issuance of the
decision by the review committee. A hearing pursuant to this
subdivision shall be available only after a review by the
disciplinary review committee.
SEC. 17. Section 7830.1 of the Business and Professions Code is
amended to read:
7830.1. After one year following the effective date of this
section, it shall be unlawful for anyone other than a geophysicist
registered under this chapter to stamp or seal any plans,
specifications, plats, reports, or other documents with the seal or
stamp of a registered geophysicist, professional geophysicist, or
registered certified specialty geophysicist, or to use in any manner
the title "registered geophysicist,
geophysicist, " "professional geophysicist," or the
title of any registered certified specialty geophysicist unless
registered, or registered and certified, under this chapter.
SEC. 18. Section 9855.6 of the Business and Professions Code is
amended to read:
9855.6. Where a service contract holder
contractholder cancels a service contract in accordance with
the provisions of Section 1794.41 of the Civil
Code and the refund due is not paid to the service contract
holder contractholder or credited to his or her
account within 30 days after the service contractor receives written
notice of cancellation, the amount of the required refund or credit
shall bear interest, payable to the service contractholder, at the
rate of 10 percent per annum for each additional 30 days or fraction
thereof.
SEC. 19. Section 11004.5 of the Business and Professions Code is
amended to read:
11004.5. In addition to any provisions of Section 11000
of this code , the reference therein
in this code to "subdivided lands" and
"subdivision" shall include all of the following:
(a) Any planned development, as defined in Section 11003
of this code , containing five or more lots.
(b) Any community apartment project, as defined by Section 11004
of this code , containing five or more apartments.
(c) Any condominium project containing five or more condominiums
, as defined in Section 783 of the Civil Code.
(d) Any stock cooperative as defined in Section 11003.2, including
any legal or beneficial interests therein, having or intended to
have five or more shareholders.
(e) Any limited-equity housing cooperative, as defined in Section
11003.4.
(f) In addition, the following interests shall be subject to
the provisions of this chapter and the regulations
of the commissioner adopted pursuant thereto:
(1) Any accompanying memberships or other rights or privileges
created in, or in connection with, any of the forms of development
referred to in subdivision (a), (b), (c), (d), or (e)
, or (f) above by any deeds, conveyances, leases,
subleases, assignments, declarations of restrictions, articles of
incorporation, bylaws , or contracts applicable thereto.
(2) Any interests or memberships in any owners' association as
described defined in Section
11003.1 1351 of the Civil Code, created in
connection with any of the forms of the development referred to in
subdivision (a), (b), (c), (d), or (e) , or (f)
above .
(g) Notwithstanding this section, time-share plans, exchange
programs, incidental benefits, and short term
short- term product subject to Chapter 2
(commencing with Section 11210) of Part 2 of Division 4 of
the Business and Professions Code are not "subdivisions" or
"subdivided lands" subject to this chapter.
SEC. 20. Section 12606.2 of the Business and Professions Code is
amended to read:
12606.2. (a) This section applies to food containers subject to
Section 403 (d) of the Federal Food, Drug , and Cosmetic
Act (21 U.S.C. Sec. 343 (d)), and Section 100.100 of Title 21 of the
Code of Federal Regulations. Section 12606 does not apply to food
containers subject to this section.
(b) No food containers shall be made, formed, or filled as to be
misleading.
(c) A container that does not allow the consumer to fully view its
contents shall be considered to be filled as to be misleading if it
contains nonfunctional slack fill. Slack fill is the difference
between the actual capacity of a container and the volume of product
contained therein. Nonfunctional slack fill is the empty space in a
package that is filled to less than its capacity for reasons other
than the following:
(1) Protection of the contents of the package.
(2) The requirements of the machines used for enclosing the
contents in the package.
(3) Unavoidable product settling during shipping and handling.
(4) The need for the package to perform a specific function, such
as where packaging plays a role in the preparation or consumption of
a food, if that function is inherent to the nature of the food and is
clearly communicated to consumers.
(5) The fact that the product consists of a food packaged in a
reusable container where the container is part of the presentation of
the food and has value that is both significant in proportion to the
value of the product and independent of its function to hold the
food, such as a gift product consisting of a food or foods combined
with a container that is intended for further use after the food is
consumed or durable commemorative or promotional packages.
(6) Inability to increase the level of fill or to further reduce
the size of the package, such as where some minimum package size is
necessary to accommodate required food labeling exclusive of any
vignettes or other nonmandatory designs or label information,
discourage pilfering, facilitate handling, or accommodate
tamper-resistent tamper-resistant devices.
(d) This section shall be interpreted
consistent with the comments by the United States Food and Drug
Administration on the regulations contained in Section 100.100 of
Title 21 of the Code of Federal Regulations, interpreting Section 403
(d) of the Federal Food, Drug , and Cosmetic Act (21
U.S.C. Sec. 343(d)), as those comments are reported on pages 64123 to
64137, inclusive, of Volume 58 of the Federal Register.
(d)
(e) If the requirements of this section do not impose
the same requirements as are imposed by Section 403(d) of the Federal
Food, Drug , and Cosmetic Act (21 U.S.C. Sec.
343(d) 343(d)) , or any regulation promulgated
pursuant thereto, then this section is not operative to the extent
that it is not identical to the federal requirements, and for this
purpose those federal requirements are incorporated into this section
and shall apply as if they were set forth in this section.
(e)
(f) Any sealer may seize any container that is in
violation of this section and the contents of the container. By order
of the municipal or superior court of the city or
county within which a violation of this section occurs, the
containers seized shall be condemned and destroyed or released upon
any conditions that the court may impose to ensure against their use
in violation of this chapter. The contents of any condemned container
shall be returned to the owner thereof if the owner furnishes proper
facilities for the return.
SEC. 21. Section 14492 of the Business and Professions Code is
amended to read:
14492. As used in this article , the following terms
have the meanings set forth in this section unless the context
otherwise requires:
(a) "Organization" includes any lodge, order, beneficial
association, fraternal or beneficial society or association,
historical, military , or veterans organization, labor
union, or any other similar society, organization , or
association or degree, branch, subordinate lodge , or
auxiliary thereof.
(b) "Name and Ownership." Name is that name which
that has first been adopted and used by an
organization within or beyond the limits of this State
state , which name has been registered in the
Office of the Secretary of State, and the name of any organization
which that has complied with
the provisions of Division 3, Part 4, Title 10, Chapter 2, of the
Civil Code of the State of California Chapter 5
(commencing with Section 17900) of Part 3 of Division 7 ,
unless such the name conflicts with a
name duly registered in the Office of the Secretary of State prior to
the compliance with such those
provisions of the Civil Code , and any
organization which that has so first
adopted and used such the name is its
original owner.
SEC. 22. Section 17086 of the Business and Professions Code is
amended to read:
17086. No information obtained under any provision of
this article, or under Part 4, Title 6, Chapter 2
Title 4 (commencing with Section 2016.010) of Part 4
of the Code of Civil Procedure, may be used against any
such party, or any such
witness, as a basis for a misdemeanor or felony prosecution in any
court of this State state .
SEC. 23. Section 17206.1 of the Business and Professions Code is
amended to read:
17206.1. (a) (1) In addition to any
liability for a civil penalty pursuant to Section 17206, any person
who violates this chapter, and the act or acts of unfair competition
are perpetrated against one or more senior citizens or disabled
persons, may be liable for a civil penalty not to exceed two thousand
five hundred dollars ($2,500) for each violation, which may be
assessed and recovered in a civil action as prescribed in Section
17206.
(2) Subject to subdivision (d), any civil
penalty shall be paid as prescribed by subdivisions (b) and (c) of
Section 17206.
(b) As used in this section, the following terms have the
following meanings:
(1) "Senior citizen" means a person who is 65 years of age or
older.
(2) "Disabled person" means any person who has a physical or
mental impairment which that
substantially limits one or more major life activities.
(A) As used in this subdivision, "physical or mental impairment"
means any of the following:
(i) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss substantially affecting one or more
of the following body systems: neurological;
muscoloskeletal musculoskeletal ; special sense
organs; respiratory, including speech organs; cardiovascular;
reproductive; digestive; genitourinary;
hemic and lymphatic; skin; or endocrine.
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term "physical
"Physical or mental impairment" includes, but is not
limited to, such diseases and conditions as orthopedic, visual,
speech , and hearing impairment, cerebral palsy, epilepsy,
muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, and emotional illness.
(B) "Major life activities" means functions such as caring for one'
s self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(c) In determining whether to impose a civil penalty pursuant to
subdivision (a) and the amount thereof, the court shall consider, in
addition to any other appropriate factors, the extent to which one or
more of the following factors are present:
(1) Whether the defendant knew or should have known that his or
her conduct was directed to one or more senior citizens or disabled
persons.
(2) Whether the defendant's conduct caused one or more senior
citizens or disabled persons to suffer: loss or encumbrance of a
primary residence, principal employment, or source of income;
substantial loss of property set aside for retirement, or for
personal or family care and maintenance; or substantial loss of
payments received under a pension or retirement plan or a government
benefits program, or assets essential to the health or welfare of the
senior citizen or disabled person.
(3) Whether one or more senior citizens or disabled persons are
substantially more vulnerable than other members of the public to the
defendant's conduct because of age, poor health or infirmity,
impaired understanding, restricted mobility, or disability, and
actually suffered substantial physical, emotional, or economic damage
resulting from the defendant's conduct.
(d) Any court of competent jurisdiction hearing an action pursuant
to this section may make orders and judgments as may be necessary to
restore to any senior citizen or disabled person any money or
property, real or personal, which may have been acquired by means of
a violation of this chapter. Restitution ordered pursuant to this
subdivision shall be given priority over recovery of any civil
penalty designated by the court as imposed pursuant to subdivision
(a), but shall not be given priority over any civil penalty imposed
pursuant to subdivision (a) of Section 17206. If the court determines
that full restitution cannot be made to those senior citizens or
disabled persons, either at the time of judgment or by a future date
determined by the court, then restitution under this subdivision
shall be made on a pro rata basis depending on the amount of loss.
SEC. 24. Section 17508 of the Business and Professions Code is
amended to read:
17508. (a) It shall be unlawful for any person doing business in
California and advertising to consumers in California to make any
false or misleading advertising claim, including claims that (1)
purport to be based on factual, objective, or clinical evidence,
that (2) compare the product's effectiveness or
safety to that of other brands or products, or that
(3) purport to be based on any fact.
(b) Upon written request of the Director of Consumer Affairs, the
Attorney General, any city attorney, or any district attorney ,
any person doing business in California and in whose behalf
advertising claims are made to consumers in California, including
claims that (1) purport to be based on factual, objective, or
clinical evidence, that (2) compare the product's
effectiveness or safety to that of other brands or products, or
that (3) purport to be based on any fact, shall
provide to the department or official making the request evidence of
the facts on which such the advertising
claims are based. Any such The request
shall be made within one year of the last day on which such
the advertising claims were made.
Any city attorney or district attorney who makes a request
pursuant to this subdivision shall give prior notice of such
the request to the Attorney General.
(c) The Director of Consumer Affairs, Attorney General, any city
attorney, or any district attorney may, upon failure of an advertiser
to respond by adequately substantiating the claim within a
reasonable time, or if such the
Director of Consumer Affairs, Attorney General, city attorney, or
district attorney shall have reason to believe that any such
the advertising claim is false or misleading,
do either or both of the following: (1) seek
(1) Seek an immediate termination
or modification of the claim by the person in accordance with
Section 17535 , (2) disseminate .
(2) Disseminate information,
taking due care to protect legitimate trade secrets, concerning the
veracity of such the claims ,
or why such the claims are
misleading , to the consumers of this state.
(d) The relief provided for in subdivision (c) is in addition to
any other relief which that may be
sought for a violation of this chapter. Section 17534 shall not apply
to violations of this section.
(e) Nothing in this section shall be construed to hold any
newspaper publisher or radio or television broadcaster liable for
publishing or broadcasting any advertising claims referred to in
subdivision (a), unless such the
publisher or broadcaster is the person making such
the claims.
(f) The plaintiff shall have the burden of proof in establishing
any violation of this section.
(g) If an advertisement is in violation of subdivision (a) and
Section 17500, the court shall not impose a separate civil penalty
pursuant to Section 17536 for the violation of subdivision (a) and
the violation of Section 17500 but shall impose a civil penalty for
the violation of either subdivision (a) or Section 17500.
SEC. 25. Section 17539.3 of the Business and Professions Code is
amended to read:
17539.3. (a) Sections 17539.1 and 17539.2 do not apply to a game
conducted to promote the sale of an employer's product or service by
his or her employees, when those employees are the sole eligible
participants.
(b) As used in Sections 17539.1 and 17539.2 , "person"
includes a firm, corporation, or association, but does not
include any charitable trust, corporation , or other
organization exempted from taxation under Section 23701d of the
Revenue and Taxation Code or Section 501(c) of the Internal Revenue
Code of 1954 .
(c) Nothing in Sections 17539 to 17539.2, inclusive, shall be
construed to permit any contest or any series of contests or any act
or omission in connection therewith which
that is prohibited by any other provision of law.
(d) Nothing in Section 17539.1 or 17539.2 shall be construed to
hold any newspaper publisher or radio or television broadcaster
liable for publishing or broadcasting any advertisement relating to a
contest, unless that publisher or broadcaster is the person
conducting or holding that contest.
(e) As used in Sections 17539 to 17539.2, inclusive, the
term contest "contest " includes any
game, contest, puzzle, scheme , or plan which
that holds out or offers to prospective
participants the opportunity to receive or compete for gifts, prizes,
or gratuities as determined by skill or any combination of chance
and skill and that is, or in whole or in part may be, conditioned
upon the payment of consideration ; .
(f) Sections 17539 to 17539.2, inclusive, do not apply to
(1) the mailing or otherwise sending of an application for
admission, or a notification or token evidencing the right of
admission , to , or (2) the operation of
a contest, performance, sporting event , or
tournament of skill, speed, or power ,
or endurance between , or the operation of the contest,
performance, sporting event, or tournament by, participants
physically present at that contest, performance, sporting event, or
tournament.
SEC. 26. Section 18625 of the Business and Professions Code is
amended to read:
18625. "Contest" and "match" are synonymous, may be used
interchangeably, and include boxing, kickboxing,
and martial arts exhibitions, and mean a fight,
prizefight, boxing contest, pugilistic contest, kickboxing contest,
martial arts contest, or sparring match, between two or
more persons, where full or partial contact is used or intended
which that may result or is
intended , to result in physical harm to the
opponent. In any exhibition or sparring match, the opponents are not
required to use their best efforts.
SEC. 27. Section 18720 of the Business and Professions Code is
amended to read:
18720. (a) No boxing contest or match shall
be more than 12 rounds or of not more
than three minutes each in length, except that championship contests
may, if the written approval of the commission if
is first obtained, be 15 rounds of not more than three
minutes each in length. The commission may limit the number of rounds
in a contest within the maximum.
(b) There shall be one minute rest between
consecutive rounds.
SEC. 28. Section 18830 of the Business and Professions Code is
amended to read:
18830. As used in this article:
(a) "Person" includes a promoter, club, individual, corporation,
partnership, limited liability company, association , or
other organization.
(b) "Closed circuit telecast" includes any telecast or broadcast,
transmitted by any means, including subscription where an extra or
additional fee is charged or where an identifiable or
particular fee is charged for the viewing within this state of a
simultaneous telecast of any live, current, or spontaneous match or
wrestling exhibition.
SEC. 29. Section 19613.2 of the Business and Professions Code is
amended to read:
19613.2. (a) Any horsemen's , owners', or trainers'
organization or organization representing horsemen, owners, or
trainers shall be incorporated under the laws of the State of
California in order to receive a distribution or deduction under this
chapter. Each corporation shall represent a majority of the
horsemen, owners, or trainers in the state with respect to the breed
of horses the corporation represents. The board shall initially
determine the organization that represents California horsemen with
respect to each breed. Any distribution or deduction received by any
of those organizations shall be used only for the benefit of
California horsemen.
(b) No portion of the amount distributed pursuant to Section 19613
to an owners', trainers', or horsemen's organization shall be used
for the purpose of making contributions to candidates for public
office, or to urge or oppose any measure on the ballot. The
organizations representing owners, trainers, and horsemen may expend
no more than the amount reasonably necessary to represent its members
before the Legislature and the board with respect to issues that
directly affect services rendered to owners, trainers, and horsemen.
The board shall annually review the budgets of the organizations
representing owners, trainers, and horsemen and shall determine the
appropriate amount to be expended for providing the representation
authorized by this subdivision.
(c) If an owners', trainers', or horsemen's organization is
conducting itself contrary to statute, regulation, or order of the
board, the board may take disciplinary action against the
organization, including ordering an association to withhold any
distribution authorized pursuant to Section 19613.
(d) Upon recognition by the board of a successor horsemen's ,
owners', or trainers' organization or organization
representing horsemen, owners, or trainers, the board shall apportion
those assets which that were generated
pursuant to Section 19613 for the benefit of the horsemen and the
successor organization.
SEC. 30. Section 21669.1 of the Business and Professions Code is
amended to read:
21669.1. (a) In addition to
the requirements specified in subdivision (a) of Section 21669, all
swap meets conducted on the premises or property of a state or local
governmental entity which that has or
expects to have an average daily attendance of 10,000 or more persons
shall provide all of the following:
(1)
(a) A statement of ownership, including the identity of
individuals holding a financial interest of 5 percent or more.
(2)
(b) A sworn statement that no individuals who have a
financial interest of 5 percent or more in the swap meet have been
convicted of any crime involving dishonesty or moral turpitude.
(3)
(c) A financial statement showing the operator's
financial capability to operate a major swap meet and to meet any
financial obligations to the lessor and subcontractors.
(4)
(d) A statement that the operator is not knowingly
delinquent in any payments owed to a state or local governmental
entity and that he or she is not knowingly in violation of any state
or local law or ordinance related to public health or safety
standards.
(5)
(e) Evidence that the operator has a minimum of five
years of experience in the management and operation of a swap meet
for profit with an average daily attendance of 5,000 or more.
(6)
(f) A plan for operations, including security, crowd
control, sanitation, and emergency medical response.
SEC. 31. Section 22701 of the Business and Professions Code is
amended to read:
22701. The Legislature finds and declares:
(a) Many physicians and scientists now warn that the risks
associated with suntanning are greater when tanning with artificial
ultraviolet light.
(b) These risks include, but are not limited to, sunburn,
premature aging, skin cancer, retinal damage, formation of cataracts,
suppression of the immune system, and damage to the vascular system.
(c) Certain medications, cosmetics, and foods are
"photosensitizing," which means that in some people they react
unfavorably with ultraviolet light to produce skin rashes or burns.
(d) Sunlamps and other artificial sources of ultraviolet light are
known to intensify these effects.
(e) The creation of state law to protect and promote the public
health , safety, and welfare is needed concerning tanning
with artificial ultraviolet light.
SEC. 32. Section 22901 of the Business and Professions Code is
amended to read:
22901. The following definitions apply for purposes of this
chapter:
(a) "Act" means the Fair Practices of Equipment Manufacturers,
Distributors, Wholesalers, and Dealers Act.
(b) "Bulk sales law" means the Uniform Commercial Code-Bulk Sales
as contained in Division 6 (commencing with Section 6101) of the
Commercial Code.
(c) "Claim" means a dealer's claim for reimbursement from a
supplier for labor and materials expended by the dealer to meet the
requirements of the supplier's warranty agreement with a consumer of
the supplier's products if the dealer has complied with the supplier'
s then-existing written policies and procedures for warranties and
warranty claims.
(d) "Current parts price" means, with respect to current parts,
the price for repair parts listed in the supplier's price list or
catalog in effect at the time the dealer contract is canceled or
discontinued or, for purposes of Section 22905, the price list or
catalog in effect at the time the repair parts were ordered. "Current
parts price" also means, with respect to superseded repair parts,
the price listed in the supplier's price list or catalog in effect at
the time the dealer contract is canceled or discontinued for the
part that performs the same function and purpose as the superseded
part, but is simply listed under a different part number.
(e) "Current net parts cost" means the current parts price less
any trade or cash discounts typically given to the dealer with
respect to that dealer's normal, ordinary course of orders of repair
parts. "Current net parts cost" also means, with respect to a
warranty, the current parts price of the supplier for the equipment
repaired less any trade or cash discounts typically given to the
dealer with respect to that dealer's normal, ordinary course of
orders of repair parts.
(f) "Dealer" means any person primarily engaged in the retail sale
of equipment as defined in subdivision (i)
(j) . For the purposes of this act, "dealer" does not include a
"franchisee" as defined in Section 331.1 of the Vehicle Code or a
"new motor vehicle dealer" as defined in Section 426 of the Vehicle
Code.
(g) "Dealer contract" means either an oral or written contract,
agreement, or arrangement for a definite or indefinite period between
a dealer and a supplier that provides for the rights and obligations
of the parties with respect to the purchase or sale of equipment or
repair parts.
(h) "Dealership" means the retail sale business engaged in by a
dealer under a dealer contract.
(i) "Demonstrator" means equipment in a dealer's inventory that
has not been sold, but has had its usage demonstrated to potential
customers, either without charge or pursuant to a short-term rental
agreement, with the intent of encouraging the potential customer to
purchase the equipment.
(j) (1) "Equipment" means all-terrain vehicles and other
machinery, equipment, implements, or attachments used for, or in
connection with, any of the following purposes:
(A) Lawn, garden, golf course, landscaping, or grounds
maintenance.
(B) Planting, cultivating, irrigating, harvesting, and producing
agricultural or forestry products.
(C) Raising, feeding, or tending to, or harvesting
products from, livestock and any other activity in connection with
those activities.
(D) Industrial, construction, maintenance, mining, or utility
activities or applications, including, but not limited to, material
handling equipment.
(2) Self-propelled vehicles designed primarily for the
transportation of persons or property on a street or highway are
specifically excluded from the definition of equipment.
(k) "Family member" means a spouse, parent, sibling, child,
son-in-law, daughter-in-law, and lineal descendent
descendant , including those by adoption.
(l) "Good cause" means failure by a dealer to comply with the
requirements imposed on the dealer by the dealer contract, if those
requirements are not different from those requirements imposed on
other similarly situated dealers in this state.
(m) "Index" means the United States Department of Labor, Bureau of
Labor Statistics purchase price index for construction machinery
series identification number pcu333120333120, or any successor index
measuring substantially similar information.
(n) "Inventory" means equipment, repair parts, data-processing
hardware or software, and specialized service or repair parts.
(o) "Major shareholder" means a shareholder with 51
percent 51-percent or greater interest in a
dealership.
(p) "Manufacturer Created Incentive Program"
created incentive program" means a program in which the
dealer's inventory has not been sold but has been used for
specialized purposes, including, but not limited to, harvest rental
programs, dealer purchase rentals, and short-term rentals. The
warranty that is transferred to the consumer upon sale, which shall
be disclosed prior to sale, is the manufacturer provided
manufacturer- provided base warranty,
less hours and time used while in a manufacturer created incentive
program.
(q) "Net equipment cost" means the price the dealer actually paid
to the supplier for equipment, plus (1) freight, at truckload rates
in effect as of the effective date of the termination of a dealer
contract, if freight was paid by the dealer from the supplier's
location to the dealer's location and (2) reimbursement for labor
incurred in preparing the equipment for retail sale or rental, which
labor will be reimbursed at the dealer's standard labor rate charged
by the dealer to its customers for nonwarranty repair work; provided,
however, if a supplier has established a reasonable setup time, that
labor will be reimbursed at an amount equal to the reasonable setup
time in effect as of the date of delivery multiplied by the dealer's
standard labor rate.
(r) "Person" means an individual, corporation, partnership,
limited liability company, trust, or any and all other forms of
business entities, including any other entity in which a person has a
majority interest or of which a person has control, as well as the
individual officers, directors, and other persons in active control
of the activities of each entity.
(s) "Repair parts" means all parts and products related to the
service or repair of equipment, including superseded parts.
(t) "Single-line dealer" means a dealer that has (1) purchased
construction, industrial, forestry , and mining equipment
from a single supplier constituting 75 percent of the dealer's new
equipment, calculated on the basis of net cost; and (2) a total
annual average sales volume in excess of forty million dollars
($40,000,000) for the three calendar years immediately preceding the
applicable determination date; provided, however, the sales threshold
shall be increased each year by an amount equal to the current sales
threshold multiplied by the percentage increase in the index from
January 1 of the immediately preceding year to January 1 of the
current year.
(u) "Single-line supplier" means the supplier that is selling the
single-line dealer construction, industrial, forestry ,
and mining equipment constituting 75 percent of the dealer's new
equipment.
(v) "Supplier" means any person engaged in the business of
manufacturing, assembly , or wholesale distribution of
equipment or repair parts. "Supplier" also includes any successor in
interest to a supplier, including a purchaser of assets or stock, or
a surviving corporation resulting from a merger, liquidation, or
reorganization of a supplier.
(w) "Terminate" means to terminate, cancel, fail to renew, or
materially change the competitive circumstances of a dealer contract.
SEC. 33. Section 22915 of the Business and Professions Code is
amended to read:
22915. (a) The lien created
pursuant to this act shall be treated according to the following:
(1)
(a) Have priority in accordance with the time the
notice of claim of lien is filed with the Secretary of State.
(2)
(b ) Have the same priority as a security
interest perfected by the filing of a financing statement as of the
date of notice of claim of lien was filed with the Secretary of
State.
(3)
(c) Not have priority over labor claims for wages and
salaries for personal services which that
are provided by any employee to any lien debtor in connection
with the equipment supplied, the proceeds of which are subject to the
lien.
SEC. 34. Section 23426.5 of the Business and Professions Code is
amended to read:
23426.5. (a) For purposes of this article,
"club" also means any tennis club which that
maintains not less than four regulation tennis courts, together
with the necessary facilities and clubhouse, and which
has members paying regular monthly dues and which
, has been in existence for not less than 45
years , and is not associated with a real estate
common interest development as defined in
Section 11003.1 1351 of this
code the Civil Code , a community apartment
project as defined in Section 11004 of this code, a project
consisting of condominiums as defined in Section 783 of the Civil
Code , or a mobilehome park as defined in Section 18214 of
the Health and Safety Code.
(b) It shall be unlawful for any club
licensed pursuant to this section to make any discrimination,
distinction, or restriction against any person on account of
such the person's color, race, religion,
ancestry, national origin, sex, or age.
SEC. 35. Section 25660 of the Business and Professions Code is
amended to read:
25660. (a) Bona fide evidence of majority and identity of the
person is a document issued by a federal, state, county, or municipal
government, or subdivision or agency thereof, including, but not
limited to, a motor vehicle operator's license or an identification
card issued to a member of the Armed Forces, that contains the name,
date of birth, description, and picture of the person.
(b) In the event an identification card issued to a member of the
Armed Forces is provided as proof of majority and lacks a physical
description, proof of majority may be further substantiated if a
motor vehicle operator's license or other valid bona fide
identification issued by any government jurisdiction is also
provided.
(c) Proof that the defendant-licensee, or his or her
employee or agent, demanded, was shown , and acted in
reliance upon such bona fide evidence in any
transaction, employment, use , or permission forbidden by
Section 25658, 25663 , or 25665 shall be a defense to any
criminal prosecution therefor or to any proceedings for the
suspension or revocation of any license based thereon.
SEC. 36. Section 43.97 of the Civil Code is amended to read:
43.97. (a) There shall be
no monetary liability on the part of, and no cause of action for
damages, other than economic or pecuniary damages, shall arise
against , a hospital for any action taken upon the
recommendation of its medical staff, or against any other person or
organization for any action taken, or restriction imposed, which is
required to be reported pursuant to Section 805 of the Business and
Professions Code, provided if that
the action or restriction is reported in
accordance with Section 805 of the Business and Professions Code.
This section shall not apply to an action knowingly and intentionally
taken for the purpose of injuring a person affected by the action
, or infringing upon a person's rights.
SEC. 37. Section 51.4 of the Civil Code is amended to read:
51.4. (a) The Legislature finds and declares that the
requirements for senior housing under Sections 51.2 and 51.3 are more
stringent than the requirements for that housing under the federal
Fair Housing Amendments Act of 1988 (Public Law
(P.L. 100-430) in recognition of the acute shortage of
housing for families with children in California. The Legislature
further finds and declares that the special design requirements for
senior housing under Sections 51.2 and 51.3 may pose a hardship to
some housing developments which that
were constructed before the
decision in Marina Point , Ltd. v. Wolfson (1982)
, 30 Cal. 3d 72 Cal.3d 721
. The Legislature further finds and declares that the
requirement for specially designed accommodations in senior housing
under Sections 51.2 and 51.3 provides important benefits to senior
citizens and also ensures that housing exempt from the prohibition of
age discrimination is carefully tailored to meet the compelling
societal interest in providing senior housing.
(b) Any person who resided in, occupied, or used, prior to January
1, 1990, a dwelling in a senior citizen housing development
which that relied on the exemption to the
special design requirement provided by this section prior to January
1, 2001, shall not be deprived of the right to continue that
residency, occupancy, or use as the result of the changes made to
this section by the enactment of Senate Bill 1382 or Senate
Bill 2011 at the 1999 -2000 Regular Session of the Legislature
Chapter 1004 of the Statutes of 2000 .
(c) This section shall not apply to the County of Riverside.
SEC. 38. Section 54.6 of the Civil Code is amended to read:
54.6. As used in this part, "visually impaired" includes
blindness and means having central visual acuity not to exceed 20/200
in the better eye, with corrected lenses, as measured by the Snellen
test, or visual acuity greater than 20/200, but with a limitation in
the field of vision such that the widest diameter of the visual
field subtendsan subtends an angle
is not greater than 20 degrees.
SEC. 39. Section 56.21 of the Civil Code is amended to read:
56.21. An authorization for an employer to disclose medical
information shall be valid if it complies with all of the
following :
(a) Is handwritten by the person who signs it or is a
in a typeface no smaller than 14-point type.
(b) Is clearly separate from any other language present on the
same page and is executed by a signature which
that serves no purpose other than to execute the
authorization.
(c) Is signed and dated by one of the following:
(1) The patient, except that a patient who is a minor may only
sign an authorization for the disclosure of medical information
obtained by a provider of health care in the course of furnishing
services to which the minor could lawfully have consented under Part
1 (commencing with Section 25) or Part 2.7 (commencing with Section
60) of Division 1.
(2) The legal representative of the patient, if the patient is a
minor or incompetent. However, authorization may not be given under
this subdivision for the disclosure of medical information
which that pertains to a competent minor and
which that was created by a provider of
health care in the course of furnishing services to which a minor
patient could lawfully have consented under Part 1 (commencing with
Section 25) or Part 2.7 (commencing with Section 60) of Division 1.
(3) The beneficiary or personal representative of a deceased
patient.
(d) States the limitations, if any, on the types of medical
information to be disclosed.
(e) States the name or functions of the employer or person
authorized to disclose the medical information.
(f) States the names or functions of the persons or entities
authorized to receive the medical information.
(g) States the limitations, if any, on the use of the medical
information by the persons or entities authorized to receive the
medical information.
(h) States a specific date after which the employer is no longer
authorized to disclose the medical information.
(i) Advises the person who signed the authorization of the right
to receive a copy of the authorization.
SEC. 40. Section 799.2.5 of the Civil Code is amended to read:
799.2.5. (a) Except as provided in
subdivision (b), the ownership or management shall have no right of
entry to a mobilehome without the prior written consent of the
resident. The consent may be revoked in writing by the resident at
any time. The ownership or management shall have a right of entry
upon the land upon which a mobilehome is situated for maintenance of
utilities, trees, and driveways, for maintenance of the premises in
accordance with the rules and regulations of the subdivision,
cooperative, or condominium for mobilehomes, or resident-owned
mobilehome park when the homeowner or resident fails to so maintain
the premises, and protection of the subdivision, cooperative, or
condominium for mobilehomes, or resident-owned mobilehome park at any
reasonable time, but not in a manner or at a time that would
interfere with the resident's quiet enjoyment.
(b) The ownership or management may enter a mobilehome without the
prior written consent of the resident in case of an emergency or
when the resident has abandoned the mobilehome.
SEC. 41. Section 846.1 of the Civil Code is amended to read:
846.1. (a) Except as provided in subdivision (c), an owner of any
estate or interest in real property, whether possessory or
nonpossessory, who gives permission to the public for entry on or use
of the real property pursuant to an agreement with a public or
nonprofit agency for purposes of recreational trail use, and is a
defendant in a civil action brought by, or on behalf of, a person who
is allegedly injured or allegedly suffers damages on the real
property, may present a claim to the State Board of Control
California Victim Compensation and Government Claims
Board for reasonable attorney's fees incurred in this civil
action if any of the following occurs:
(1) The court has dismissed the civil action upon a demurrer or
motion for summary judgment made by the owner or upon its own motion
for lack of prosecution.
(2) The action was dismissed by the plaintiff without any payment
from the owner.
(3) The owner prevails in the civil action.
(b) Except as provided in subdivision (c), a public entity, as
defined in Section 831.5 of the Government Code, that gives
permission to the public for entry on or use of real property for a
recreational purpose, as defined in Section 846, and is a defendant
in a civil action brought by, or on behalf of, a person who is
allegedly injured or allegedly suffers damages on the real property,
may present a claim to the State Board of Control
California Victim Compensation and Government Claims Board
for reasonable attorney's fees incurred in this civil action if any
of the following occurs:
(1) The court has dismissed the civil action upon a demurrer or
motion for summary judgment made by this public entity or upon its
own motion for lack of prosecution.
(2) The action was dismissed by the plaintiff without any payment
from the public entity.
(3) The public entity prevails in the civil action.
(c) An owner of any estate or interest in real property, whether
possessory or nonpossessory, or a public entity, as defined in
Section 831.5 of the Government Code, that gives permission to the
public for entry on, or use of, the real property for a recreational
purpose, as defined in Section 846, pursuant to an agreement with a
public or nonprofit agency, and is a defendant in a civil action
brought by, or on behalf of, a person who seeks to restrict, prevent,
or delay public use of that property, may present a claim to the
State Board of Control California Victim
Compensation and Government Claims Board for reasonable
attorney's fees incurred in the civil action if any of the following
occurs:
(1) The court has dismissed the civil action upon a demurrer or
motion for summary judgment made by the owner or public entity or
upon its own motion for lack of prosecution.
(2) The action was dismissed by the plaintiff without any payment
from the owner or public entity.
(3) The owner or public entity prevails in the civil action.
(d) The State Board of Control California
Victim Compensation and Government Claims Board shall allow the
claim if the requirements of this section are met. The claim shall
be paid from an appropriation to be made for that purpose. Reasonable
attorneys' attorney' s
fees, for purposes of this section, may not exceed an hourly rate
greater than the rate charged by the Attorney General at the time the
award is made, and may not exceed an aggregate amount of twenty-five
thousand dollars ($25,000). This subdivision shall not apply if a
public entity has provided for the defense of this civil action
pursuant to Section 995 of the Government Code. This subdivision
shall also not apply if an owner or public entity has been provided a
legal defense by the state pursuant to any contract or other legal
obligation.
(e) The total of claims allowed by the board pursuant to this
section shall not exceed two hundred thousand dollars ($200,000) per
fiscal year.
SEC. 42. Section 1363.04 of the Civil Code is amended to read:
1363.04. (a) Association funds shall not be used for campaign
purposes in connection with any association board election. Funds of
the association shall not be used for campaign purposes in connection
with any other association election except to the extent necessary
to comply with duties of the association imposed by law.
(b) For the purposes of this section , "campaign
purposes" include includes , but
are is not limited to, the following:
(1) Expressly advocating the election or defeat or
of any candidate that is on the association
election ballot.
(2) Including the photograph or prominently featuring the name of
any candidate on a communication from the association or its board,
excepting the ballot and ballot materials, within 30 days of an
election , provided that this . This is
not a campaign purpose if the communication is one for which
subdivision (a) of Section 1363.03 requires that equal access be
provided to another candidate or advocate.
SEC. 43. Section 1363.07 of the Civil Code is amended to read:
1363.07. (a) After an association acquires fee title to ,
or any easement right over , a common area, unless
the association's governing documents specify a different percentage,
the affirmative vote of members owning at least sixty seven
67 percent of the separate interests in the
common interest development shall be required before the board of
directors may grant exclusive use of any portion of that common area
to any member, except for any of the following:
(1) A reconveyance of all or any portion of that common area to
the subdivider to enable the continuation of development that is in
substantial conformance with a detailed plan of phased development
submitted to the Real Estate Commissioner of the
Department of Real Estate with the application for a public
report ; .
(2) Any grant of exclusive use that is in substantial conformance
with a detailed plan of phased development submitted to the Real
Estate Commissioner of the Department of Real Estate
with the application for a public report or in accordance
with the governing documents approved by the Real Estate
Commissioner of the Department of Real Estate .
(3) Any grant of exclusive use that is for any of the following
reasons:
(A) To eliminate or correct engineering errors in documents
recorded with the county recorder or on file with a public agency or
utility company.
(B) To eliminate or correct encroachments due to errors in
construction of any improvements.
(C) To permit changes in the plan of development submitted to the
Real Estate Commissioner of the Department of
Real Estate in circumstances where the changes are the
result of topography, obstruction, hardship, aesthetic
considerations, or environmental conditions.
(D) To fulfill the requirement of a public agency.
(E) To transfer the burden of management and maintenance of any
common area that is generally inaccessible and is
not of general use to the membership at large of the association.
(F) Any grant in connection with an expressly zoned industrial or
commercial development, or any grant within a subdivision of the type
defined in Section 1373.
(b) Any measure placed before the members requesting that the
board of directors grant exclusive use of any portion of the common
area shall specify whether the association will receive any monetary
consideration for the grant and whether the association or the
transferee will be responsible for providing any insurance coverage
for exclusive use of the common area.
SEC. 44. Section 1761 of the Civil Code is amended to read:
1761. As used in this title:
(a) "Goods" means tangible chattels bought or leased for use
primarily for personal, family, or household purposes, including
certificates or coupons exchangeable for these goods, and including
goods which that , at the time of the
sale or subsequently, are to be so affixed to real property as to
become a part of real property, whether or not they are
severable therefrom from the real property
.
(b) "Services" means work, labor, and services for other than a
commercial or business use, including services furnished in
connection with the sale or repair of goods.
(c) "Person" means an individual, partnership, corporation,
limited liability company, association, or other group, however
organized.
(d) "Consumer" means an individual who seeks or acquires, by
purchase or lease, any goods or services for personal, family, or
household purposes.
(e) "Transaction" means an agreement between a consumer and any
other person, whether or not the agreement is a contract enforceable
by action, and includes the making of, and the performance pursuant
to, that agreement.
(f) "Senior citizen" means a person who is 65 years of age or
older.
(g) "Disabled person" means any person who has a physical or
mental impairment which that
substantially limits one or more major life activities.
(1) As used in this subdivision, "physical or mental impairment"
means any of the following:
(A) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss substantially affecting one or more
of the following body systems: neurological;
muscoloskeletal musculoskeletal ; special sense
organs; respiratory, including speech organs; cardiovascular;
reproductive; digestive; genitourinary; hemic and lymphatic; skin; or
endocrine.
(B) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term "physical
"Physical or mental impairment" includes, but is
not limited to, such diseases and conditions as orthopedic, visual,
speech , and hearing impairment, cerebral palsy, epilepsy,
muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, and emotional illness.
(2) "Major life activities" means functions such as caring for one'
s self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(h) "Home solicitation" means any transaction made at the consumer'
s primary residence, except those transactions initiated by the
consumer. A consumer response to an advertisement is not a home
solicitation.
SEC. 45. Section 1786.10 of the Civil Code is amended to read:
1786.10. (a) Every investigative consumer reporting agency shall,
upon request and proper identification of any consumer, allow the
consumer to visually inspect all files maintained regarding the
consumer at the time of the request.
(b) (1) All items of information shall be
available for inspection, except that the sources of information,
other than public records and records from data bases
databases available for sale, acquired solely
for use in preparing an investigative consumer report and actually
used for no other purpose need not be disclosed. However, if an
action is brought under this title, those sources shall be available
to the consumer under appropriate discovery procedures in the court
in which the action is brought.
Nothing in this
(2) This title shall not
be interpreted to mean that investigative consumer reporting
agencies are required to divulge to consumers the sources of
investigative consumer reports , except in appropriate
discovery procedures as outlined herein in
this title .
(c) The investigative consumer reporting agency shall also
identify the recipients of any investigative consumer report on the
consumer that the investigative consumer reporting agency has
furnished for either of the following purposes :
(1) For employment or insurance purposes within the three-year
period preceding the request.
(2) For any other purpose within the three-year period preceding
the request.
(d) The identification of a recipient under subdivision (c) shall
include the name of the recipient or, if applicable, the trade name
(written in full) under which the recipient conducts business and,
upon request of the consumer, the address and telephone number of the
recipient.
(e) The investigative consumer reporting agency shall also
disclose the dates, original payees, and amounts of any checks or
charges upon which is based any adverse characterization of the
consumer, included in the file at the time of the disclosure.
SEC. 46. Section 1788.2 of the Civil Code is amended to read:
1788.2. (a) Definitions and rules of construction set forth in
this section are applicable for the purpose of this title.
(b) The term "debt "Debt collection"
means any act or practice in connection with the collection of
consumer debts.
(c) The term "debt "Debt collector"
means any person who, in the ordinary course of business, regularly,
on behalf of himself or herself or others, engages in debt
collection. The term includes any person who composes and sells, or
offers to compose and sell, forms, letters, and other collection
media used or intended to be used for debt collection, but does not
include an attorney or counselor at law.
(d) The term "debt" "Debt" means
money, property , or their equivalent , which
is due or owing or alleged to be due or owing from a natural person
to another person.
(e) The term "consumer "Consumer
credit transaction" means a transaction between a natural person and
another person in which property, services , or money is
acquired on credit by that natural person from such other
another person primarily for personal, family,
or household purposes.
(f) The terms "consumer "Consumer
debt" and "consumer credit" mean money, property ,
or their equivalent, due or owing or alleged to be due or owing
from a natural person by reason of a consumer credit transaction.
(g) The term "person" "Person" means
a natural person, partnership, corporation, limited liability
company, trust, estate, cooperative, association , or
other similar entity.
(h) The term "debtor" "Debtor"
means a natural person from whom a debt collector seeks to
collect a consumer debt which is due and owing or alleged to be due
and owing from such person.
(i) The term "creditor" "Creditor"
means a person who extends consumer credit to a debtor.
(j) The term "consumer (1)
"Consumer credit report" means any written, oral
, or other communication of any information by a consumer
reporting agency bearing on a consumer's creditworthiness, credit
standing, credit capacity, character, general reputation, personal
characteristics or mode of living , which is used or
expected to be used or collected in whole or in part for the purpose
of serving as a factor in establishing the consumer's eligibility for
(1) credit any of the following:
(A) Credit or insurance to be
used primarily for person personal ,
family, or household purposes , or (2) employment
.
(B) E mployment
purposes , or (3) other .
(C) Other purposes authorized
under any applicable federal or state law or regulation. The
term
(2) "Consumer credit report "
does not include (a) any of the
following:
(A) Any report containing
information solely as to transactions or experiences between the
consumer and the person making the report ; (b) any
.
(B) Any authorization or approval
of a specific extension of credit directly or indirectly by the
issuer of a credit card or similar device ; or (c) any
.
(C) Any report in which a person
who has been requested by a third party to make a specific extension
of credit directly or indirectly to a consumer conveys his or her
decision with respect to that request , if the
third party advises the consumer of the name and address of the
person to whom the request was made and such
that person makes the disclosures to the consumer required
under any applicable federal or state law or regulation.
(k) The term "consumer "Consumer
reporting agency" means any person which who
, for monetary fees , or dues, or
on a cooperative nonprofit basis, regularly engages, in whole or in
part, in the practice of assembling or evaluating consumer credit
information or other information on consumers for the purpose of
furnishing consumer credit reports to third parties, and
which who uses any means or facility for the
purpose of preparing or furnishing consumer credit reports.
SEC. 47. Section 1789.37 of the Civil Code is amended to read:
1789.37. (a) Every owner of a check casher's business shall
obtain a permit from the Department of Justice to conduct a check
casher's business.
(b) All applications for a permit to conduct a check casher's
business shall be filed with the department in writing, signed by the
applicant , if an individual , or by a member
or officer authorized to sign , if the applicant is a
corporation or other entity, and shall state the name of the
business, the type of business engaged in, and the business address.
Each applicant shall be fingerprinted.
(c) Each applicant for a permit to conduct a check casher's
business shall pay a fee not to exceed the cost of processing the
application, fingerprinting the applicant, and checking or obtaining
the criminal record of the applicant, at the time of filing the
application.
(d) Each applicant shall annually, beginning one year from the
date of issuance of a check casher's permit, file an application for
renewal of the permit with the department, along with payment of a
renewal fee not to exceed the cost of processing the application for
renewal and checking or obtaining the criminal record of the
applicant.
(e) The department shall deny an application for a permit to
conduct a check casher's business, or for renewal of a permit, if the
applicant has a felony conviction involving dishonesty, fraud, or
deceit, provided if the crime is
substantially related to the qualifications, functions, or duties of
a person engaged in the business of check cashing.
(f) The department shall adopt regulations to implement this
section and shall determine the amount of the application fees
required by this section. The department shall prescribe forms for
the applications and permit required by this section, which shall be
uniform throughout the state.
(g) In any action brought by a city attorney or district attorney
to enforce a violation of this section, any
an owner of a check casher's business who engages in the
business of check cashing without holding a current and valid permit
issued by the department pursuant to this section is subject to a
civil penalty, as follows:
(1) For the first offense, not more than one thousand dollars
($1,000).
(2) For the second offense, not more than five thousand dollars
($5,000).
(h) Any person who has twice been found in violation of
subdivision (g) and who, within 10 years of the date of the first
offense, engages in the business of check cashing without holding a
current and valid permit issued by the department pursuant to this
section is guilty of a misdemeanor punishable by imprisonment in a
county jail not exceeding six months, or by a fine not exceeding five
thousand dollars ($5,000), or by both that fine and
imprisonment .
(i) All civil penalties, forfeited bail, or fines received by any
court pursuant to this section shall, as soon as practicable after
the receipt thereof, be deposited with the county treasurer of the
county in which the court is situated. Fines and forfeitures
so deposited shall be disbursed pursuant to the Penal
Code. Civil penalties so deposited shall be paid
at least once a month as follows:
(1) Fifty percent to the Treasurer by warrant of the county
auditor drawn upon the requisition of the clerk or judge of the
court, to be deposited in the State Treasury on order of the
Controller.
(2) Fifty percent to the city treasurer of the city, if the
offense occurred in a city, otherwise to the treasurer of the county
in which the prosecution is conducted. Any money deposited in the
State Treasury under this section which that
is determined by the Controller to have been erroneously
deposited therein shall be refunded, subject to
approval of the State Board of Control
California Victim Compensation and Government Claims Board
prior to the payment of the refund, out of any money in the State
Treasury which that is available by law
for that purpose.
(j) This section shall become operative December 31, 2004.
SEC. 48. Section 1812.85 of the Civil Code is amended to read:
1812.85. (a) Every contract for health studio services shall
provide that performance of the agreed upon services will begin
within six months after the date the contract is entered into. The
consumer may cancel the contract and receive a pro rata refund if the
health studio fails to provide the specific facilities advertised or
offered in writing by the time indicated. If no time is indicated in
the contract, the consumer may cancel the contract within six months
after the execution of the contract and shall receive a pro rata
refund. If a health studio fails to meet a timeline set forth in this
section, the consumer may cancel the contract at any time after the
expiration of the timeline, provided that if, following the
expiration of the timeline, the health studio does provide the
advertised or agreed upon services, the consumer may cancel the
contract up to 10 days after those services are provided.
(b) (1) Every contract for
health studio services shall, in addition, contain on its face, and
in close proximity to the space reserved for the signature of the
buyer, a conspicuous statement in a size equal to at least 10-point
boldface type, as follows:
"You, the buyer, may cancel this agreement at any time prior to
midnight of the fifth business day of the health studio after the
date of this agreement, excluding Sundays and holidays. To cancel
this agreement, mail or deliver a signed and dated notice, or send a
telegram which states that you, the buyer, are canceling this
agreement, or words of similar effect. The notice shall be sent to
,
_________________________________________________
(Name of health studio operator)
at_______________________________________________
(Address of health studio operator)."
(2) The contract for health studio services shall contain on the
first page, in a type size no smaller than that generally used in the
body of the document, the following: (A) the name and address of the
health studio operator to which the notice of cancellation is to be
mailed, and (B) the date the buyer signed the contract.
(3) The contract shall provide a description of the services,
facilities, and hours of access to which the consumer is entitled.
Any services, facilities, and hours of access that are not described
in the contract shall be considered optional services, and these
optional services shall be considered as separate contracts for the
purposes of this title and Section 1812.83.
(4) Until the health studio operator has complied with this
section, the buyer may cancel the contract for health studio
services.
(5) All moneys paid pursuant to a contract for health studio
services shall be refunded within 10 days after receipt of the notice
of cancellation, except that payment shall be made for any health
studio services received prior to cancellation.
(c) If at any time during the term of the contract, including a
transfer of the contractual obligation, the health studio eliminates
or substantially reduces the scope of the facilities, such as
swimming pools or tennis courts, that were described in the contract,
in an advertisement relating to the specific location, or in a
written offer, and available to the consumer upon execution of the
contract, the consumer may cancel the contract and receive a pro rata
refund. The consumer may not cancel the contract pursuant to this
subdivision if the health studio, after giving reasonable notice to
its members, temporarily takes facilities out of operation for
reasonable repairs, modifications, substitutions, or improvements.
This subdivision shall not be interpreted to give the consumer the
right to cancel a contract because of changes to the type or quantity
of classes or equipment offered, provided the consumer is informed
in the contract that the health studio reserves the right to make
changes to the type or quantity of classes or equipment offered and
the changes to the type or quantity of classes or equipment offered
is reasonable under the circumstances.
(d) (1) If a contract for health studio services requires payment
of one thousand five hundred dollars ($1,500) to two thousand dollars
($2,000), inclusive, including initiation fees or initial membership
fees, by the person receiving the services or the use of the
facility, the person shall have the right to cancel the contract
within 20 days after the contract is executed.
(2) If a contract for health studio services requires payment of
two thousand one dollars ($2,001) to two thousand five hundred
dollars ($2,500), inclusive, including initiation fees or initial
membership fees, by the person receiving the services or the use of
the facility, the person shall have the right to cancel the contract
within 30 days after the contract is executed.
(3) If a contract for health studio services requires payment of
two thousand five hundred and one dollars
($2501) ($2,501) or more, including initiation
fees or initial membership fees, by the person receiving the services
or the use of the facility, the person shall have the right to
cancel the contract within 45 days after the contract is executed.
(4) The right of cancellation provided in this subdivision shall
be set out in the membership contract.
(5) The rights and remedies under this paragraph are cumulative to
any rights and remedies under other law.
(6) A health studio entering into a contract for health studio
services that does not require payment in excess of one thousand
dollars ($1000) ($1,000) , including
initiation or initial membership fees and exclusive of interest or
finance charges, by the person receiving the services or the use of
the facilities, is not required to comply with the provisions of this
subdivision that are added by the act adding this paragraph
Section 3 of Chapter 439 of the Statutes of 2005
.
(e) Upon cancellation, the consumer shall be liable only for that
portion of the total contract payment, including initiation fees and
other charges however denominated, that has been available for use by
the consumer, based upon a pro rata calculation over the term of the
contract. The remaining portion of the contract payment shall be
returned to the consumer by the health studio.
SEC. 49. Section 1812.97 of the Civil Code, as added by Section 6
of Chapter 439 of the Statutes of 2005, is amended and renumbered to
read:
1812.97. 1812.98. Nothing in this
title is intended to prohibit month-to-month contracts. This section
is declaratory of existing law.
SEC. 50. Section 1812.106 of the Civil Code is amended to read:
1812.106. Every discount buying organization, before obtaining
the signature of a potential buyer on any application or contract for
discount buying services, shall provide to the buyer, and shall
allow the buyer to retain, the following written disclosures:
(a) The exact nature of the services it provides, specifying the
general categories of goods which that
are available at the discount buying organization's place of business
or warehouse, those categories of goods, if any, which
that must be ordered or obtained through stores
to which the discount buying organization will refer the customer,
and those categories of goods, if any, which
that must be ordered or obtained through the mail.
(b) A list, current within the previous 60 days, of at least 100
items which that are sold by or through
the organization or available to those who contract with the
organization, identified by brand name, model, and total price
including a reasonable estimate of freight charges, if any are to be
imposed; a reasonable estimate of delivery charges, if any are to be
imposed; a reasonable estimate of setup charges, if any are to be
imposed; the discount buying organization's price markup ;
and a reasonable estimate of any other charges the discount buying
organization imposes. These items shall be reasonably representative
as to the type of goods available. In lieu of providing such
a this list, the discount buying organization
shall provide and allow the buyer to retain a list of at least 100
items which that were purchased by its
members through the discount buying organization during the preceding
60 days. Such This list shall identify
the items by brand name, model, and total selling price including
freight charges, if any , ; delivery
charges, if any , ; setup charges, if
any , ; the discount buying
organization's price markup , ; and any
other charges imposed by the discount buying organization, and shall
be representative as to the type of goods sold and the prices
charged for the listed goods sold during that period. If the maximum
number of items available through a discount buying organization is
less fewer than 100 in number, it may
comply with this section by furnishing a list of the total items
available, identified as described above with a statement that those
are the only goods presently available. Any list required by this
subdivision shall state the date on which it was prepared.
(c) A statement of the discount buying organization's policy with
respect to warranties or guarantees on goods ordered, and the policy
with respect to the return of ordered goods, cancellation of orders
by the buyer , and refunds for cancellation or return.
(d) A description of any charges, such as freight charges,
delivery charges, setup charges, seller's markup , and any
other charges which that are
incidental to the purchase of goods through the discount buying
organization and which are to be paid by the
buyer. A disclosure of these costs in specific monetary amounts shall
also be made on each order placed through the discount buying
organization.
(e) If any stockholder, director, officer, or general
or limited partner of the discount buying organization, as the case
may be:
(1) Has been convicted of a felony or misdemeanor or pleaded nolo
contendere to a felony or misdemeanor charge, if such
the felony or misdemeanor involved fraud,
embezzlement, fraudulent conversion, misappropriation of property, or
a violation of this title ; or .
(2) Has been held liable in a civil action by final judgment or
consented to the entry of a stipulated judgment if the civil action
alleged fraud, embezzlement, fraudulent conversion , or
misappropriation of property or , a
violation of this title or , the use of
untrue or misleading representations in an attempt to sell or
dispose of real or personal property , or the use of
unfair, unlawful , or deceptive business practices
; or .
(3) Is subject to any currently effective injunction or
restrictive order relating to business activity as the result of an
action brought by a public agency or department, including, but not
limited to, an action affecting any vocational license, a statement
so stating, and including the name of the court, the date of the
conviction, judgment, order , or injunction and, if
applicable, the name of the governmental agency that filed the action
resulting in the conviction, judgment, order, or injunction.
SEC. 51. Section 1812.306 of the Civil Code is amended to read:
1812.306. (a) A purchaser's remedy for errors in or omissions
from the membership camping contract of any of the disclosures or
requirements of Sections 1812.302 to 1812.304, inclusive, shall be
limited to a right of recission rescission
and refund. Reasonable attorney's fees shall be awarded to the
prevailing party in any action under this title. This limitation does
not apply to errors or omissions from the contract, or disclosures
or other requirements of this title, which are a part of a scheme to
willfully misstate or omit the information required, or other
requirements imposed by this title.
(b) Any failure (except , except a
willful or material failure) failure,
to comply with any provision of Sections 1812.302 to 1812.304,
inclusive, may be corrected within 30 days after receipt of written
notice to the membership camping operator from the purchaser, and, if
so corrected, there shall be no right of recission
rescission . The membership camping operator or
the holder shall not be subject to any penalty under this title.
However, there can be no correction which
that increases any monthly payment, the number of payments, or
the total amount due, unless concurred to, in writing, by the
purchaser. "Holder" includes the seller who acquires the contract, or
if the contract is purchased, a financing agency or other assignee
who purchases the contract.
SEC. 52. Section 1812.501 of the Civil Code is amended to read:
1812.501. (a) The term "employment (1)
"Employment agency" or "agency" means:
(1)
(A) Any person who, for a fee or other valuable
consideration to be paid, directly or indirectly by a jobseeker,
performs, offers to perform , or represents it can or will
perform any of the following services:
(A)
(i) Procures, offers, promises, or attempts to procure
employment or engagements for others or employees for employers.
(B)
(ii) Registers persons seeking to procure or retain
employment or engagement.
(C)
(iii) Gives information as to where and from whom this
help, employment, or engagement may be procured.
(D)
(iv) Provides employment or engagements.
The term "employment agency" or "agency" shall not mean or include
any employment counseling service or any job listing service.
(2)
(B) Any person who offers, as one of its main objects
or purposes, to procure employment for any person who will pay for
its services, or that collects dues, tuition, or membership or
registration fees of any sort, where if
the main object of the person paying the same
those fees is to secure employment.
(3)
(C) Any person who, for a fee or other valuable
consideration, procures, offers, promises, provides, or attempts to
procure babysitting or domestic employment for others or domestics or
babysitters for others.
(2) "Employment agency" or "agency" shall not include any
employment counseling service or any job listing service.
(b) (1) The term "employment "Employment
counseling service" means any person who offers,
advertises , or represents it can or will provide any of
the following services for a fee: career counseling, vocational
guidance, aptitude testing, executive consulting, personnel
consulting, career management, evaluation, or planning, or the
development of resumes resumes and
other promotional materials relating to the preparation for
employment. The term "employment "Employment
counseling service" shall not mean or
include persons who provide services strictly on an hourly basis with
no financial obligation required of the consumer beyond the hourly
fee for services rendered. An "employment counseling service" does
not include the functions of an "employment agency" as defined in
subdivision (a).
(2) The term "employment "Employment
counseling service" does not include:
(A) Businesses which that are
retained by, act solely on behalf of, and are compensated solely by
prior or current employers which that do
not require any "customer" to sign a contract and do not in any way
hold any "customer" liable for fees.
(B) (i) Any provider of vocational
rehabilitation in which the counseling services are paid for by
insurance benefits, where if the
counseling is provided as a result of marital dissolution or
separation proceedings to prepare one of the spouses for reentry into
the job market and where if the fees
are paid by some party other than the person receiving the counseling
services.
(ii) The exemption provided in this
subparagraph does not apply to any vocational rehabilitation
counselor who receives any payments directly from the individual
customer receiving the counseling.
(C) Any person who engages solely in the preparation of
resumes resums and cover letters, provided that
the resume resume writing service does
not advertise or hold itself out as offering other job seeking or
placement services and does not charge more than three hundred
dollars ($300) for any resume resume ,
cover letter, or combination of both to any single customer in any
individual transaction.
(D) Any public educational institution.
(E) Any private educational institution established solely for
educational purposes which that , as a
part of its curriculum, offers employment counseling to its student
body and which institution conforms to the
requirements of Article 4 3.5
(commencing with Section 94760) of Chapter 7 of Part 59 of the
Education Code.
(F) A psychologist or psychological corporation licensed pursuant
to Chapter 6.6 (commencing with Section 2900) of Division 2 of the
Business and Professions Code, providing psychological assessment,
career or occupational counseling, or consultation and related
professional services within their his, her,
or its scope of practice.
(G) Educational psychologists An
educational psychologist licensed pursuant to Article 5
(commencing with Section 4986) of Chapter 13 of Division 2 of the
Business and Professions Code, providing counseling services within
their his or her scope of practice.
(c) The term "job "Job listing
service" means any person who provides, offers, or represents it can
or will provide any of the following services, for a fee or other
valuable consideration to be paid, directly or indirectly, by the
jobseeker in advance of, or contemporaneously with, performance of
these services: matches jobseekers with employment opportunities,
providing or offering to provide jobseekers lists of employers or
lists of job openings or like publications, or preparing
resumes resumes or lists of jobseekers for
distribution to potential employers.
(d) A "nurses' registry" as defined in subdivision (b) of Section
1812.524 is an employment agency. However, unless otherwise provided
for in this title, a nurses' registry shall not be required to comply
with Chapter 2 (commencing with Section 1812.503) regulating
employment agencies but, instead, shall be required to comply with
Chapter 7 (commencing with Section 1812.524).
(e) "Jobseeker" means a person seeking employment.
(f) "Employer" means any individual, company, partnership,
association, corporation, agent, employee, or representative for whom
or for which an employment agency or job listing service attempts to
obtain an employee or to place a jobseeker.
(g) "Job order" means any written or oral instruction, direction,
or permission granted by an employer or its agent to an employment
agency or job listing service to refer jobseekers for a specified
job.
(h) "Domestic agency" means any agency that provides, or attempts
to provide, employment by placement of domestic help in private
homes.
(i) "Deposit" means any money or valuable consideration received
by an employment agency or job listing service from a jobseeker for
referring the jobseeker to a position of employment prior to the
jobseeker's acceptance of a position.
(j) "Fee" means:
(1) Any money or other valuable consideration paid, or promised to
be paid, for services rendered or to be rendered by any person
conducting an employment agency, employment counseling service, or
job listing service under this title.
(2) Any money received by any person in excess of that which has
been paid out by him or her for transportation, transfer of baggage,
or board and lodging for any applicant for employment.
(k) "Registration fee" means any charge made, or attempted to be
made, by an employment agency for registering or listing an applicant
for employment, for letter writing, or any charge of a like nature
made, or attempted to be made without having a bona fide order for
the placement of the applicant in a position.
(l) "Person" means any individual, corporation, partnership,
limited liability company, trust, association, or other organization.
(m) This section shall become operative on January 1, 1997.
SEC. 53. Section 1834.8 of the Civil Code is amended to read:
1834.8. (a) At any public auction or sale where equines are sold,
the management of the auction or sale shall post a sign (measuring a
minimum of 15 x 9 inches with lettering of a minimum of 11/4 x 1/2
(91 point)) or shall insert into its consignment agreement with the
seller in boldface type the notice stated in subdivision (b). If a
sign is posted , it shall be posted in a a
conspicuous place so that it will be clearly visible to a
majority of persons attending the sale. If the notice is inserted
into the consignment agreement, space shall be provided adjacent to
the notice for the seller to initial his or her acknowledgment of the
notice.
(b) The notice required by subdivision (a) shall read as follows:
"WARNING
Horses sold on these premises may be purchased for slaughter.
As a possible safeguard, seller can set minimum bid above
current slaughter prices."
(c) For the purposes of this section, the management of the
auction or sale shall post current slaughter prices or make them
available to sellers upon request.
SEC. 54. 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 bold 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 or 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",
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.
(h) After the 65-day period following the foreclosure sale, the
foreclosure consultant may enter into a contract to assist the owner
in arranging, or arrange for the owner, the release of funds
remaining after the foreclosure sale ("surplus funds") from the
beneficiary, mortgagee, trustee under a power of sale, or counsel for
the beneficiary, mortgagee, or trustee. However, prior to entering
into that contract, the foreclosure consultant shall do all of the
following:
(1) Prepare and deliver to the owner a notice in 14-point boldface
type and substantially in the form set forth below.
(2) Obtain a receipt executed by each owner and acknowledged
before a notary public, acknowledging a copy of the notice set forth
below.
"NOTICE TO OWNER
________________________ _________________
(Date of Contract) (Date signed by
________
Owner)
____________________________
(Date of Foreclosure Sale)
You may be entitled to receive all or a portion
of the surplus funds generated from the
foreclosure sale of your real property
located at: __________________________,
California on _________________________without
paying any fees or costs of any kind to a third
party. You should check directly with the
trustee or beneficiary who conducted the
foreclosure sale of your property to determine
the name, address, and telephone number of the
party to whom you can direct inquiries regarding
filing a claim for surplus funds without paying
a fee to a third party. No person or entity may
require you to enter into any agreement
requiring the payment of a fee to that person or
entity in order to receive the surplus funds
from the foreclosure sale to which you may be
entitled during the 65 days after the date of
the trustee's sale."
SEC. 55. Section 2945.9 of the Civil Code is amended to read:
2945.9. (a) A foreclosure consultant is
liable for all damages resulting from any statement made or act
committed by the foreclosure consultant's representative in any
manner connected with the foreclosure consultant's (1) performance,
offer to perform, or contract to perform any of the services
described in subdivision (a) of Section 2945.1, (2) receipt of any
consideration or property from or on behalf or
of an owner, or (3) performance of any act prohibited by
this article.
(b) "Representative" for the purposes of this section means a
person who in any manner solicits, induces, or causes (1) any owner
to contract with a foreclosure consultant, (2) any owner to pay any
consideration or transfer title to the residence in foreclosure to
the foreclosure consultant, or (3) any member of the owner's family
or household to induce or cause any owner to pay any consideration or
transfer title to the residence in foreclosure to the foreclosure
consultant.
SEC.
56. Section 2954.7 of the Civil Code is amended to read:
2954.7. Except when a statute, regulation, rule, or written
guideline promulgated by an institutional third party applicable to
notes or evidence of indebtedness secured by a deed of trust or
mortgage purchased in whole or in part by an institutional third
party specifically prohibits cancellation during the term of the
indebtedness, if a borrower so requests and the conditions
established by paragraphs (1) to (6) (5)
, inclusive, of subdivision (a) are met, a borrower may
terminate future payments for private mortgage insurance, or mortgage
guaranty insurance as defined in subdivision (a) of Section 12640.02
of the Insurance Code, issued as a condition to the extension of
credit in the form of a loan evidenced by a note or other evidence of
indebtedness which that is secured by
a deed of trust or mortgage on the subject real property.
(a) The following conditions shall be satisfied in order for a
borrower to be entitled to terminate payments for private mortgage
insurance or mortgage guaranty insurance:
(1) The request to terminate future payments for private mortgage
insurance or mortgage guaranty insurance shall be in writing.
(2) The origination date of the note or evidence of indebtedness
shall be at least two years prior to the date of the request.
(3) The note or evidence of indebtedness shall be for personal,
family, household, or purchase money purposes, secured by a deed of
trust or mortgage on owner-occupied, one to four unit
one- to four- unit ,
residential real property.
(4) The unpaid principal balance owed on the secured obligation
that is the subject of the private mortgage insurance or mortgage
guaranty insurance shall not be more than 75 percent, unless the
borrower and lender or servicer of the loan agree in writing upon a
higher loan to value loan- to-
value ratio, of either of the following:
(A) The sale price of the property at the origination date of the
note or evidence of indebtedness, provided that the current fair
market value of the property is equal to or greater than the original
appraised value used at the origination date.
(B) The current fair market value of the property as determined by
an appraisal, the cost of which shall be paid for by the borrower.
The appraisal shall be ordered and the appraiser shall be selected by
the lender or servicer of the loan.
(5) The borrower's monthly installments of principal, interest,
and escrow obligations on the encumbrance or encumbrances secured by
the real property shall be current at the time the request is made
and those installments shall not have been more than 30 days past due
over the 24-month period immediately preceding the request, provided
further, that no notice of default has been recorded against the
security real property pursuant to Section 2924, as a result of a
nonmonetary default by the borrower (trustor) during the 24-month
period immediately preceding the request.
(b) This section does not apply to any of the following:
(1) A note or evidence of indebtedness secured by a deed of trust
or mortgage, or mortgage insurance, executed under the authority of
Part 3 (commencing with Section 50900) or Part 4 (commencing with
Section 51600) of Division 31 of the Health and Safety Code.
(2) Any note or evidence of indebtedness secured by a deed of
trust or mortgage that is funded in whole or in part pursuant to
authority granted by statute, regulation, or rule that, as a
condition of that funding, prohibits or limits termination of
payments for private mortgage insurance or mortgage guaranty
insurance during the term of the indebtedness.
(3) Notes or evidence of indebtedness that require private
mortgage insurance and were executed prior to January 1, 1991.
(c) If the note secured by the deed of trust or mortgage will be
or has been sold in whole or in part to an institutional third party,
adherence to the institutional third party's standards for
termination of future payments for private mortgage insurance or
mortgage guaranty insurance shall be deemed in compliance with the
requirements of this section.
(d) For the purposes of this section, "institutional third party"
means the Federal National Mortgage Association, the Federal Home
Loan Mortgage Corporation, the Government National Mortgage
Association , and other substantially similar
institutions, whether public or private, provided the institutions
establish and adhere to rules applicable to the right of cancellation
of private mortgage insurance or mortgage guaranty insurance, which
are the same or substantially the same as those utilized by the
above-named institutions.
SEC. 57. Section 3052.5 of the Civil Code is amended to read:
3052.5. (a) The provisions of Sections 3052
and 3052b shall not apply to any service dealer registered with the
Bureau of Repair Services pursuant to Chapter 20 (commencing with
Section 9800) of Division 3 of the Business and Professions Code if
the dealer reasonably believes that the serviced product is of
nominal value. For purposes of this section, nominal value shall be
ascertained as follows: the product is not readily salable for more
than the legitimate charges against it, and either the original
retail value of the product was under two hundred dollars ($200) and
the product is over three years old, or the original retail value is
over two hundred dollars ($200) and the product is over six years
old.
Service dealers may use any available materials or information
, including, but not limited to, industry publications,
code dates, sales records, or receipts to assist in determining value
and age of the serviced product.
(b) A service dealer may select one of the following alternative
methods for the disposal of unclaimed serviced products determined to
have a value as specified in subdivision (a):
(1) The service dealer may provide the owner of such
the product with the following written notice to
be mailed following completion of work on the serviced product:
DATE BROUGHT
IN_______________________________________________
DATE
MAILED___________________________________________
DATE PRODUCT TO BE SOLD IF NOT
CLAIMED
_________________________________________________
NOTICE: YOUR PRODUCT HAS BEEN DETERMINED BY THIS SERVICE DEALER TO
BE ONE WHICH WAS EITHER ORIGINALLY SOLD FOR LESS THAN $200 AND IS
NOW OVER THREE YEARS OLD OR ONE WHICH WAS ORIGINALLY SOLD FOR MORE
THAN $200 AND WHICH IS NOW OVER SIX YEARS OLD AND THE CHARGES FOR
SERVICING YOUR PRODUCT WILL EXCEED ITS CURRENT VALUE. UNDER
CALIFORNIA CIVIL CODE SECTION 3052.5(a) IF YOU OR YOUR AGENT FAIL TO
CLAIM YOUR PRODUCT WITHIN 90 DAYS AFTER THE DEALER MAILS A COPY OF
THIS NOTICE TO YOU IT MAY BE SOLD OR OTHERWISE DISPOSED OF BY HIM
OR HER . The notice shall be sent by certified mail,
return receipt requested. A serviced product may be disposed of 90
days after the date of deliverance evidenced by the signature in the
returned receipt.
(2) The service dealer may publish public notice of the intended
sale in a newspaper of general circulation. Such
The notice shall contain a description of the serviced
product, the name of the serviced product owner, and the time by
which and place where the product may be redeemed. Such
The notice shall be published for a minimum of
five times. A serviced product may be disposed of 90 days after the
last date of publication.
(3) A service dealer may, upon receipt of any product to be
serviced by him or her , provide the owner of
such the product with the following notice,
written in at least 10-point bold boldface
type:
DATE BROUGHT
IN_______________________________________________
DATE
MAILED___________________________________________
DATE PRODUCT TO BE SOLD IF NOT
CLAIMED
_________________________________________________
NOTICE: YOUR PRODUCT HAS BEEN DETERMINED BY THIS SERVICE DEALER TO
BE ONE WHICH WAS EITHER ORIGINALLY SOLD FOR LESS THAN $200 AND IS
NOW OVER THREE YEARS OLD OR ONE WHICH WAS ORIGINALLY SOLD FOR MORE
THAN $200 AND WHICH IS NOW OVER SIX YEARS OLD AND THE CHARGES FOR
SERVICING YOUR PRODUCT WILL EXCEED ITS CURRENT VALUE. UNDER
CALIFORNIA CIVIL CODE SECTION 3052.5(a) IF YOU OR YOUR AGENT FAIL TO
CLAIM YOUR PRODUCT WITHIN 90 DAYS AFTER THE DEALER MAILS A COPY OF
THIS NOTICE TO YOU IT MAY BE SOLD OR OTHERWISE DISPOSED OF BY HIM
OR HER . PRINT YOUR NAME AND MAILING ADDRESS WHERE
NOTICE MAY BE SENT TO YOU IN THE SPACE PROVIDED BELOW AND SIGN WHERE
INDICATED TO SHOW THAT YOU HAVE READ THIS NOTICE.
___________________________________
(Print Name)
______________________________________
(Street Address)
____________________________________________
(City, State and ZIP Code)
IF YOU DO NOT AGREE WITH THE ABOVE DETERMINED VALUE OF YOUR ITEM, DO
NOT SIGN THIS DOCUMENT.
Signature: ___________________________________
(Owner or Agent)
Such This notice shall be signed,
addressed, and dated by the owner, with a copy to be retained by both
the owner and the service dealer. At the completion of service, the
service dealer shall by first-class mail, mail a completed copy of
such the notice to the owner of the
service serviced product at the address
given on the notice form. A serviced product may be disposed of 90
days after the date of mailing.
(c) For purposes of this section , an owner is the
person or agent who authorizes the original service or repair, or
delivers the product to the service dealer.
SEC. 58. Section 3262 of the Civil Code is amended to read:
3262. (a) Neither the owner nor original contractor by any term
of their a contract, or otherwise,
shall waive, affect, or impair the claims and liens of other persons
whether with or without notice except by their written consent, and
any term of the contract to that effect shall be null and void. Any
written consent given by any claimant pursuant to this subdivision
shall be null, void, and unenforceable unless and until the claimant
executes and delivers a waiver and release. That waiver and release
shall be binding and effective to release the owner, construction
lender, and surety on a payment bond from claims and liens only if
the waiver and release follows substantially one of the forms set
forth in this section and is signed by the claimant or his or her
authorized agent, and, in the case of a conditional release, there is
evidence of payment to the claimant. Evidence of payment may be by
the claimant's endorsement on a single or joint payee check
which that has been paid by the bank upon which
it was drawn or by written acknowledgment of payment given by the
claimant.
(b) (1) No oral or written statement
purporting to waive, release, impair , or otherwise
adversely affect a claim is enforceable or creates any estoppel or
impairment of a claim unless (1) it either:
(A) It is pursuant to a waiver
and release prescribed herein, or (2) the in
this section.
(B) The claimant had actually
received payment in full for the claim. Nothing
(2) Nothing in this section
precludes a stop notice claimant from reducing the amount of, or
releasing in its entirety, a stop notice that has been served upon an
owner. The reduction or release of a stop notice, which shall be in
writing, may be served in a form other than the forms of release set
forth in this section. Any reduction or release of a stop notice:
(1) shall
(A) Shall not preclude the
service of a subsequent stop notice that is timely and proper
; (2) shall .
(B) Shall release the owner from
any obligation to withhold money on account of the stop notice, to
the extent of the reduction or release ; (3) shall
.
(C) Shall be effective to release
the claimant's right to enforce the stop notice, to the extent of
the reduction or release ; and (4) shall .
(D) Shall not operate as a
release of any right that the claimant may have, other than the
claimant's right to enforce the stop notice, to the extent of the
reduction or release.
(c) This section does not affect the enforceability of either an
accord and satisfaction regarding a bona fide dispute or any
agreement made in settlement of an action pending in any court
provided the accord and satisfaction or agreement and settlement make
specific reference to the mechanic's lien, stop notice, or bond
claims.
(d) The waiver and release given by any claimant
hereunder pursuant to this section shall be
null, void, and unenforceable unless it follows substantially the
following forms in the following circumstances:
(1) If the claimant is required to execute a waiver and release in
exchange for, or in order to induce the payment of, a progress
payment and the claimant is not, in fact, paid in exchange for the
waiver and release or a single payee check or joint payee check is
given in exchange for the waiver and release, the waiver and release
shall follow substantially the following form:
CONDITIONAL WAIVER AND RELEASE UPON PROGRESS
PAYMENT
Upon receipt by the undersigned of a check
from
__________________________________in the sum of $
(Maker of Check) (Amount of Check)
payable to________________________________________
(Payee or Payees of Check)
and when the check has been properly endorsed and
has been paid by the bank upon which it is
drawn, this document shall become effective to
release any mechanic's lien, stop notice, or bond
right the undersigned has on the job of
_________located at____________________
(Owner) (Job Description)
to the following extent. This release covers a
progress payment for labor, services, equipment,
or material furnished to
__________________________________________through
(Your Customer) (Date)
only and does not cover any retentions retained
before or after the release date; extras
furnished before the release date for which
payment has not been received; extras or items
furnished after the release date. Rights based
upon work performed or items furnished under a
written change order which has been fully
executed by the parties prior to the release date
are covered by this release unless specifically
reserved by the claimant in this release. This
release of any mechanic's lien, stop notice, or
bond right shall not otherwise affect the
contract rights, including rights between parties
to the contract based upon a rescission,
abandonment, or breach of the contract, or the
right of the undersigned to recover
compensation for furnished labor, services,
equipment, or material covered by this release if
that furnished labor, services, equipment, or
material was not compensated by the progress
payment. Before any recipient of this document
relies on it, said party should verify evidence
of payment to the undersigned.
Dated:_______________________ ____________________
(Company Name)
By__________________
(Title)
(2) If the claimant is required to execute a waiver and release in
exchange for, or in order to induce payment of, a progress payment
and the claimant asserts in the waiver it has, in fact, been paid the
progress payment, the waiver and release shall follow substantially
the following form:
UNCONDITIONAL WAIVER AND RELEASE
UPON
PROGRESS PAYMENT
The undersigned has been paid and has received
a progress payment in the sum of $____ for
labor, services, equipment, or material
furnished
to
_______________________________________on the job
of_______________________________________________
(Your Customer) (Owner)
located at______________________________and
(Job Description)
does hereby release any mechanic's lien, stop
notice, or bond right that the undersigned has
on the above referenced job to the following
extent. This release covers a progress payment
for labor, services, equipment, or materials
furnished
to
________________________through____________
(Your Customer) (Date)
only and does not cover any retentions retained
before or after the release date; extras
furnished before the release date for which
payment has not been received; extras or items
furnished after the release date. Rights based
upon work performed or items furnished under a
written change order which has been fully
executed by the parties prior to the release
date are covered by this release unless
specifically reserved by the claimant in this
release. This release of any mechanic's lien,
stop notice, or bond right shall not otherwise
affect the contract rights, including rights
between parties to the contract based upon a
rescission, abandonment, or breach of the
contract, or the right of the undersigned to
recover compensation for furnished labor,
services, equipment, or material covered by this
release if that furnished labor, services,
equipment, or material was not compensated by
the progress payment.
Dated:______________ ____________________________
(Company Name)
By__________________________
(Title)
Each unconditional waiver in this provision
shall contain the following language, in at
least as large a type as the largest type
otherwise on the document:
"NOTICE: THIS DOCUMENT WAIVES RIGHTS
UNCONDITIONALLY AND STATES THAT YOU HAVE BEEN
PAID FOR GIVING UP THOSE RIGHTS. THIS DOCUMENT
IS ENFORCEABLE AGAINST YOU IF YOU SIGN IT, EVEN
IF YOU HAVE NOT BEEN PAID. IF YOU HAVE NOT BEEN
PAID, USE A CONDITIONAL RELEASE FORM."
(3) If the claimant is required to execute a waiver and release in
exchange for, or in order to induce the payment of, a final payment
and the claimant is not, in fact, paid in exchange for the waiver and
release or a single payee check or joint payee check is given in
exchange for the waiver and release, the waiver and release shall
follow substantially the following form:
CONDITIONAL WAIVER AND RELEASE UPON
FINAL
PAYMENT
Upon receipt by the undersigned of a check
from_______________________________________in the
the sum of $____ payable to _______ and
when
when the check has been properly endorsed and
has
has been paid by the bank upon which it is
drawn,
drawn, this document shall become effective to
release
release any mechanic's lien, stop notice, or
bond right
bond right the undersigned has on the job of
______________________________________located at
(Owner) (Job Description)
This release covers the final payment to the
undersigned for all labor, services, equipment,
or material furnished on the job, except for
disputed claims for additional work in the
amount of $____. Before any recipient of this
document relies on it, the party should verify
evidence of payment to the undersigned.
Dated:______________ ____________________________
(Company Name)
By__________________________
(Title)
(4) If the claimant is required to execute a waiver and release in
exchange for, or in order to induce payment of, a final payment and
the claimant asserts in the waiver it has, in fact, been paid the
final payment, the waiver and release shall follow substantially the
following form:
UNCONDITIONAL WAIVER AND RELEASE UPON
FINAL
PAYMENT
The undersigned has been paid in full for all
labor, services, equipment , or material furnished
to
____________________________________on the job of
(Your Customer) (Owner)
located at________________________________and does
(Job Description)
hereby waive and release any right to a
mechanic's lien, stop notice, or any right
against a labor and material bond on the job,
except for disputed claims for extra work
in the amount of $ ________.
Dated:________________________ ___________________
(Company Name)
By_________________
(Title)
Each unconditional waiver in this provision shall
contain the following language, in at least as
large a type as the largest type otherwise on the
document:
"NOTICE: THIS DOCUMENT WAIVES RIGHTS
UNCONDITIONALLY AND STATES THAT YOU HAVE BEEN
PAID FOR GIVING UP THOSE RIGHTS. THIS DOCUMENT IS
ENFORCEABLE AGAINST YOU IF YOU SIGN IT, EVEN IF
YOU HAVE NOT BEEN PAID. IF YOU HAVE NOT BEEN
PAID, USE A CONDITIONAL RELEASE FORM."
SEC. 59. Section 3415 of the Civil Code is amended to read:
3415. (a) An action may be maintained by any person interested in
any private document or instrument in writing, which has been lost
or destoyed destroyed , to prove or
establish the document or instrument or to compel the issuance,
execution , and acknowledgment of a duplicate of the
document or instrument.
(b) If the document or instrument is a negotiable instrument, the
court shall compel the owner of the negotiable instrument to give an
indemnity bond to the person reissuing, reexecuting , or
reacknowledging the same, against loss, damage, expense, or other
liability which that may be suffered by
the person by reason of the issuance of the duplicate instrument or
by the original instrument still remaining outstanding.
SEC. 60. Section 77 of the Code of Civil Procedure is amended to
read:
77. (a) In every county and city and county, there is an
appellate division of the superior court consisting of three judges
or, when the Chief Justice finds it necessary, four judges.
The Chief Justice shall assign judges to the appellate division
for specified terms pursuant to rules, not inconsistent with statute,
adopted by the Judicial Council to promote the independence and
quality of each appellate division. Each judge assigned to the
appellate division of a superior court shall be a judge of that
court, a judge of the superior court of another county, or a judge
retired from the superior court or a court of higher jurisdiction in
this state.
The Chief Justice shall designate one of the judges of each
appellate division as the presiding judge of the division.
(b) In each appellate division, no more than three judges shall
participate in a hearing or decision. The presiding judge of the
division shall designate the three judges who shall participate.
(c) In addition to their other duties, the judges designated as
members of the appellate division of the superior court shall serve
for the period specified in the order of designation. Whenever a
judge is designated to serve in the appellate division of the
superior court of a county other than the county in which that judge
was elected or appointed as a superior court judge, or if the judge
is retired, in a county other than the county in which the judge
resides, the judge shall receive expenses for travel, board, and
lodging. If the judge is out of the judge's county overnight or
longer, by reason of the designation, that judge shall be paid a per
diem allowance in lieu of expenses for board and lodging in the same
amounts as are payable for those purposes to justices of the Supreme
Court under the rules of the State Board of Control
California Victim Compensation and Government Claims
Board . In addition, a retired judge shall receive for the time
so served, amounts equal to that which the judge would have received
if the judge had been assigned to the superior court of the county.
(d) The concurrence of two judges of the appellate division of the
superior court shall be necessary to render the decision in every
case in, and to transact any other business except business that may
be done at chambers by the presiding judge of, the division. The
presiding judge shall convene the appellate division when necessary.
The presiding judge shall also supervise its business and transact
any business that may be done at chambers.
(e) The appellate division of the superior court has jurisdiction
on appeal in all cases in which an appeal may be taken to the
superior court or the appellate division of the superior court as
provided by law, except where the appeal is a retrial in the superior
court.
(f) The powers of each appellate division shall be the same as are
now or may hereafter be provided by law or rule of the Judicial
Council relating to appeals to the appellate division of the superior
courts.
(g) The Judicial Council shall promulgate rules, not inconsistent
with law, to promote the independence of, and govern the practice and
procedure and the disposition of the business of , the
appellate division.
(h) Notwithstanding the provisions of
subdivisions (b) and (d), appeals from convictions of traffic
infractions may be heard and decided by one judge of the appellate
division of the superior court.
SEC. 61. Section 94 of the Code of Civil Procedure is amended to
read:
94. Discovery is permitted only to the extent provided by this
section and Section 95. This discovery shall comply with the notice
and format requirements of the particular method of discovery, as
provided in Title 4 (commencing with Section 2016.010) of Part 4. As
to each adverse party, a party may use the following forms of
discovery:
(a) Any combination of 35 of the following:
(1) Interrogatories (with no subparts) under Chapter 13
(commencing with Section 2030.010) of Title 4 of Part 4.
(2) Demands to produce documents or things under Chapter 14
(commencing with Section 2031.010) of Title 4 of Part 4.
(3) Requests for admission (with no subparts) under Chapter 16
(commencing with Section 2033.010) of Title 4 of Part 4.
(b) One oral or written deposition under Chapter 9 (commencing
with Section 2025.010), Chapter 10 (commencing with Section
2026.010), or Chapter 11 (commencing with
Section 2028.010) of Title 4 of Part 4. For
purposes of this subdivision, a deposition of an organization shall
be treated as a single deposition even though more than one person
may be designated or required to testify pursuant to Section
2025.230.
(c) Any party may serve on any person a deposition subpoena duces
tecum requiring the person served to mail copies of documents, books
, or records to the party's counsel at a specified
address, along with an affidavit complying with Section 1561 of the
Evidence Code.
The party who issued the deposition subpoena shall mail a copy of
the response to any other party who tenders the reasonable cost of
copying it.
(d) Physical and mental examinations under Chapter 15 (commencing
with Section 2032.010) of Title 4 of Part 4.
(e) The identity of expert witnesses under Chapter 18 (commencing
with Section 2034.010) of Title 4 of Part 4.
SEC. 62. Section 338 of the Code of Civil Procedure is amended to
read:
338. Within three years:
(a) An action upon a liability created by statute, other than a
penalty or forfeiture.
(b) An action for trespass upon or injury to real property.
(c) An action for taking, detaining, or injuring any goods or
chattels, including actions for the specific recovery of personal
property. The cause of action in the case of theft, as defined in
Section 484 of the Penal Code, of any article of historical,
interpretive, scientific, or artistic significance is not deemed to
have accrued until the discovery of the whereabouts of the article by
the aggrieved party, his or her agent, or the law enforcement agency
which that originally investigated the
theft.
(d) An action for relief on the ground of fraud or mistake. The
cause of action in that case is not to be deemed
to have accrued until the discovery, by the aggrieved party, of the
facts constituting the fraud or mistake.
(e) An action upon a bond of a public official except any cause of
action based on fraud or embezzlement is not to be
deemed to have accrued until the discovery, by the
aggrieved party or his or her agent, of the facts constituting the
cause of action upon the bond.
(f) (1) An action against a notary public on his or her bond or in
his or her official capacity except that any cause of action based
on malfeasance or misfeasance is not deemed to have accrued until
discovery, by the aggrieved party or his or her agent, of the facts
constituting the cause of action.
(2) Notwithstanding paragraph (1), an action based on malfeasance
or misfeasance shall be commenced within one year from discovery, by
the aggrieved party or his or her agent, of the facts constituting
the cause of action or within three years from the performance of the
notarial act giving rise to the action, whichever is later.
(3) Notwithstanding paragraph (1), an action against a notary
public on his or her bond or in his or her official capacity shall be
commenced within six years.
(g) An action for slander of title to real property.
(h) An action commenced under Section 17536 of the Business and
Professions Code. The cause of action in that case shall not be
deemed to have accrued until the discovery by the aggrieved party,
the Attorney General, the district attorney, the county counsel, the
city prosecutor, or the city attorney of the facts constituting
grounds for commencing such an the
action.
(i) An action commenced under the Porter-Cologne Water Quality
Control Act (Division 7 (commencing with Section 13000) of the Water
Code). The cause of action in that case shall not be deemed to have
accrued until the discovery by the State Water Resources Control
Board or a regional water quality control board of the facts
constituting grounds for commencing actions under their jurisdiction.
(j) An action to recover for physical damage to private property
under Section 19 of Article I of the California Constitution.
(k) An action commenced under Division 26 (commencing with Section
39000) of the Health and Safety Code. These causes of action shall
not be deemed to have accrued until the discovery by the State Air
Resources Board or by a district, as defined in Section 39025 of the
Health and Safety Code, of the facts constituting grounds for
commencing the action under its jurisdiction.
(l) An action commenced under Section 1603.1, 1615, or 5650.1 of
the Fish and Game Code. These causes of action shall not be deemed to
have accrued until discovery by the agency bringing the action of
the facts constituting the grounds for commencing the action.
(m) An action challenging the validity of the levy upon a parcel
of a special tax levied by a local agency on a per parcel basis.
(n) An action commencing under Section 51.7 of the Civil Code.
SEC. 63. Section 417.10 of the Code of Civil Procedure is amended
to read:
417.10. Proof that a summons was served on a person within this
state shall be made:
(a) If served under Section 415.10, 415.20, or 415.30, by the
affidavit of the person making such the
service showing the time, place, and manner of service and facts
showing that such the service was made
in accordance with this chapter. Such The
affidavit shall recite or in other manner show the name of the
person to whom a copy of the summons and of the complaint were
delivered, and, if appropriate, his or her title or the
capacity in which he or she is served, and that the notice
required by Section 412.30 appeared on the copy of the summons
served, if in fact it did appear.
If service is made by mail pursuant to Section 415.30, proof of
service shall include the acknowledgement
acknowledgment of receipt of summons in the form provided by
that section or other written acknowledgment of receipt of summons
satisfactory to the court.
(b) If served by publication pursuant to Section 415.50, by the
affidavit of the publisher or printer, or his foreman
or her foreperson or principal clerk, showing
the time and place of publication, and an affidavit showing the time
and place a copy of the summons and of the complaint were mailed to
the party to be served, if in fact mailed.
(c) If served pursuant to another statute
law of this state, in the manner prescribed by such
statute that law or, if no manner is prescribed,
in the manner prescribed by this section for proof of a similar
manner of service.
(d) By the written admission of the party.
(e) If served by posting pursuant to Section 415.45, by the
affidavit of the person who posted the premises, showing the time and
place of posting, and an affidavit showing the time and place copies
of the summons and of the complaint were mailed to the party to be
served, if in fact mailed.
(f) All proof of personal service shall be made on a form adopted
by the Judicial Council.
SEC. 64. Section 460.7 of the Code of Civil Procedure is amended
to read:
460.7. (a) In any action by a candidate or former candidate for
elective public office against a holder of elective public office or
an opposing candidate for libel or slander which
that is alleged to have occurred during the course of an
election campaign , the court shall order that the time to
respond to the complaint is 20 days after the service of summons on
the defendant. The order shall direct the clerk to endorse the
summons to show that the time to respond has been shortened pursuant
to this section. A copy of the affidavit and order shall be served
with the summons.
(b) In any action decribed described
in subdivision (a), unless otherwise ordered by the court for good
cause shown, the time allowed the defendant to respond to the
complaint or amend the answer under Section 586 shall not exceed 10
days.
(c) The court shall give any action described in subdivision (a)
precedence over all other civil actions, except actions to which
special precedence is given by law, in the matter of the setting of
the case of hearing or trial, and in hearing the case, to the end
that all actions described in subdivision (a) shall be quickly heard
and determined. Except for good cause shown, the court shall not
grant a continuance in excess of 10 days without the consent of the
adverse party.
SEC. 65. 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 17537.3, 22445, 22446.5, 22958, 22962, or
22963 of the Business and Professions Code, Section 52, 52.1, 55.1,
or 3494 of the Civil Code, the Corporate Securities Law of 1968
(Division 1 (commencing with Section 25000) of Title 4 of the
Corporations Code or the California Commodity Law of 1990 (Division
4.5 (commencing with Section 29500) of Title 4 of the Corporations
Code), Section 1615, 2014, or 5650.1 of the Fish and Game Code,
Section 4458, 12598, 12606, 12607, 12598,
12989.3, 16147, 66640, 66641, or 66641.7 of the Government
Code, Section 13009, 13009.1, 19958.5, 25299, 39674, 41513, 42402,
42402.1, 42402.2, 42402.3, 42402.4, 43016, 43017, 43154, 104557, or
118950 of the Health and Safety Code, Section 308.1 or 308.3 of the
Penal Code, Section 2774.1, 4601.1, 4603, 4605, 30820, 30821.6,
30822, 42847, or 48023 of the Public Resources Code, Section 30101.7
of the Revenue and Taxation Code, or Section 275, 1052, 1845, 13261,
13262, 13264, 13265, 13268, 13304, 13331, 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 actions
action filed thereafter.
(c) The amendments made to this section by the act adding
this subdivision Chapter 227 of the Statutes of 2004
shall apply to any action pending on the effective date of
these amendments and to any actions action
filed thereafter.
SEC. 66. Section 1141.21 of the Code of Civil Procedure is amended
to read:
1141.21. (a) (1) If the judgment upon the
trial de novo is not more favorable in either the amount of damages
awarded or the type of relief granted for the party electing the
trial de novo than the arbitration award, the court shall order that
party to pay the following nonrefundable costs and fees, unless the
court finds in writing and upon motion that the imposition of
such these costs and fees would create
such a substantial economic hardship as not to be in the interest of
justice:
(i)
(A) To the court, the compensation actually paid to the
arbitrator, less any amount paid pursuant to paragraph (iv)
subparagraph (D) .
(ii)
(B) To the other party or parties, all costs specified
in Section 1033.5, and the party electing the trial de novo shall not
recover his or her costs.
(iii)
(C) To the other party or parties, the reasonable costs
of the services of expert witnesses, who are not regular employees
of any party, actually incurred or reasonably necessary in the
preparation or trial of the case.
(iv)
(D) To the other party or parties, the compensation
paid by the other party or parties to the arbitrator, pursuant to
subdivision (b) of Section 1141.28.
Such
(2) Those costs and fees, other
than the compensation of the arbitrator, shall include only those
incurred from the time of election of the trial de novo.
(b) If the party electing the trial de novo has proceeded in the
action in forma pauperis and has failed to obtain a more favorable
judgment, the costs and fees under paragraphs (ii) and (iii)
subparagraphs (B) and (C) of paragraph (1) of
subdivision (a) shall be imposed only as an offset against any
damages awarded in favor of that party.
(c) If the party electing the trial de novo has proceeded in the
action in forma pauperis and has failed to obtain a more favorable
judgment, the costs under subparagraph (A) of paragraph
(i) (1) of subdivision (a) shall be
imposed only to the extent that there remains a sufficient amount in
the judgment after the amount offset under subdivision (b) has been
deducted from the judgment.
SEC. 67. Section 1245.320 of the Code of Civil Procedure is
amended to read:
1245.320. As used in this article, "quasi-public entity" means:
(a) An educational institution of collegiate grade not conducted
for profit that seeks to take property by eminent domain under
Section 30051 94500 of the Education
Code.
(b) A nonprofit hospital that seeks to take property by eminent
domain under Section 1260 of the Health and Safety Code.
(c) A cemetery authority that seeks to take property by eminent
domain under Section 8501 of the Health and Safety Code.
(d) A limited-dividend housing corporation that seeks to take
property by eminent domain under Section 34874 of the Health and
Safety Code.
(e) A land-chest corporation that seeks to take property by
eminent domain under former Section 35167 of the Health
and Safety Code.
(f) A mutual water company that seeks to take property by eminent
domain under Section 2729 of the Public Utilities Code.
SEC. 68. Section 1345 of the Code of Civil Procedure is amended to
read:
1345. Whenever If any person has
erroneously delivered any unclaimed money
moneys or other unclaimed property to the State
state or any officer or employee thereof, and
such money the moneys or other property
is deposited in the Unclaimed Property Fund or is held by the
Controller or Treasurer in the name of any account in such
that fund pursuant to the provisions of
this title, such money the moneys
or other property delivered in error may be refunded or
returned to such that person on order
of the Controller, with the approval of the State Board of
Control California Victim Compensation and Government
Claims Board .
SEC. 69. Section 1346 of the Code of Civil Procedure is amended to
read:
1346. Whenever If any person has
erroneously delivered any unclaimed money
moneys or other unclaimed property to the state or any officer
or employee thereof, and such money the
moneys or other property is deposited in, or transferred to,
the General Fund, or is held by the Controller or Treasurer in the
name of such that fund, pursuant to
the provisions of this title, such money
the moneys or other property delivered in error,
if cash, shall on order of the Controller, be transferred from the
General Fund to the Unclaimed Property Fund, and, if other than cash,
the records of the Controller and Treasurer shall be adjusted to
show that it is held in the name of the proper account in the
Unclaimed Property Fund; and any such money
the moneys or other property may be refunded or returned to
such that person on order of the
Controller, with the approval of the State Board of Control
California Victim Compensation and Government Claims
Board .
SEC. 70. Section 1370 of the Code of Civil Procedure is amended to
read:
1370. The Controller, with the prior approval of the
State Board of Control California Victim Compensation
and Government Claims Board , may sell or lease personal
property at any time, and in any manner, and may execute
such those leases on behalf and in the name of
the State of California.
SEC. 71. Section 1371 of the Code of Civil Procedure is amended to
read:
1371. The Controller, with the prior approval of the
State Board of Control California Victim Compensation
and Government Claims Board , may sell, cash, redeem, exchange,
or otherwise dispose of any securities and all other classes of
personal property, and may sell, cash, redeem, exchange, compromise,
adjust, settle, or otherwise dispose of any accounts, debts,
contractual rights, or other choses in action whenever
if , in his or her opinion,
such that action on his or her part
is necessary or will tend to safeguard and conserve the interests of
all parties, including the State state
, having any vested or expectant interest in the property.
SEC. 72. Section 1375 of the Code of Civil Procedure is amended to
read:
1375. With the approval of the State Board of Control
California Victim Compensation and Government Claims
Board , any real property may be sold or leased by the
Controller at private sale without published notice.
SEC. 73. Section 1379 of the Code of Civil Procedure is amended to
read:
1379. With the prior approval of the State Board of
Control California Victim Compensation and Government
Claims Board , the Controller may destroy or otherwise dispose
of any personal property other than cash deposited in the State
Treasury under the provisions of this title, if
such that property is determined by him
or her to be valueless or of such little value that the
costs of conducting a sale would probably exceed the amount that
would be realized therefrom; from the sale,
and neither the Treasurer nor Controller shall be held to
respond in damages at the suit of any person claiming loss by reason
of such that destruction or
disposition.
SEC. 74. Section 1775.14 of the Code of Civil Procedure is amended
to read:
1775.14. (a) On or before January 1, 1998,
the Judicial Council shall submit a report to the Legislature
concerning court alternative dispute resolution programs. This report
shall include, but not be limited to, a review of programs operated
in Los Angeles County and other courts that have elected to apply
this title, and shall examine, among other things, the effect of this
title on the judicial arbitration programs of courts that have
participated in that program.
(b) The Judicial Council shall, by rule, require that each court
applying this title file with the Judicial Council such
data as that will enable the
Judicial Council to submit the report required by subdivision (a).
SEC. 75. Section 1800 of the Code of Civil Procedure is amended to
read:
1800. (a) In As used in this
section , the following terms have the following meanings
:
(1) The term "insolvent" "Insolvent"
means:
(A) With reference to a person other than a partnership, a
financial condition such that the sum of the person's debts is
greater than all of the person's property, at a fair valuation,
exclusive of both of the following:
(i) Property transferred, concealed, or removed with intent to
hinder, delay, or defraud the person's creditors.
(ii) Property that is exempt from property of the estate pursuant
to the election of the person made pursuant to Section 1801.
(B) With reference to a partnership, financial condition such that
the sum of the partnership's debts are greater than the aggregate
of, at a fair valuation, both of the following:
(i) All of the partnership's property, exclusive of property of
the kind specified in clause (i) of subparagraph (A).
(ii) The sum of the excess of the value of each general partner's
separate property, exclusive of property of the kind specified in
clause (ii) of subparagraph (A), over the partner's separate debts.
(2) The term "inventory" "Inventory"
means personal property leased or furnished, held for sale or lease,
or to be furnished under a contract for service, raw materials, work
in process, or materials used or consumed in a business, including
farm products such as crops or livestock, held for sale or lease.
(3) The term "insider" "Insider"
means:
(A) If the assignor is an individual, any of the following:
(i) A relative of the assignor or of a general partner of the
assignor.
(ii) A partnership in which the assignor is a general partner.
(iii) A general partner of the assignor.
(iv) A corporation of which the assignor is a director, officer,
or person in control.
(B) If the assignor is a corporation, any of the following:
(i) A director of the assignor.
(ii) An officer of the assignor.
(iii) A person in control of the assignor.
(iv) A partnership in which the assignor is a general partner.
(v) A general partner of the assignor.
(vi) A relative of a general partner, director, officer, or person
in control of the assignor.
(C) If the assignor is a partnership, any of the following:
(i) A general partner in the assignor.
(ii) A relative of a general partner in, general partner of, or
person in control of the assignor.
(iii) A partnership in which the assignor is a general partner.
(iv) A general partner of the assignor.
(v) A person in control of the assignor.
(D) An affiliate of the assignor or an insider of an affiliate as
if the affiliate were the assignor.
(E) A managing agent of the assignor.
As used in this paragraph, "relative" the
following terms have the following meanings:
"Relative" means an individual related by affinity or
consanguinity with within the third
degree as determined by the common law, or an individual in a step or
adoptive relationship within the third degree ; and an
.
An "affiliate" means a person that directly or
indirectly owns, controls , or holds , with
power to vote , 20 percent or more of the outstanding
voting securities of the assignor , or 20 percent or more
of whose outstanding voting securities are directly or indirectly
owned, controlled , or held with power to vote by the
assignor (excluding , excluding
securities held in a fiduciary or agency capacity without sole
discretionary power to vote, or held solely to secure a debt if the
holder has not in fact exercised the power to vote)
vote , or a person who operates the business of
the assignor under a lease or operating agreement or whose business
is operated by the assignor under a lease or operating agreement.
(4) The term "judicial "Judicial
lien" means a lien obtained by judgment, levy, sequestration, or
other legal or equitable process or proceeding.
(5) The term "new "New
value" means money or money's worth in goods, services, or new
credit, or release by a transferee of property previously transferred
to the transferee in a transaction that is neither void nor voidable
by the assignor or the assignee under any applicable law, but does
not include an obligation substituted for an existing obligation.
(6) The term "receivable" "Receivable"
means a right to payment, whether or not the right has been
earned by performance.
(7) The term "security "Security
agreement" means an agreement that creates or provides for a security
interest.
(8) The term "security "Security
interest" means a lien created by an agreement.
(9) The term "statutory "Statutory
lien" means a lien arising solely by force of a statute on specified
circumstances or conditions, or lien of distress for rent, whether or
not statutory, but does not include a security interest
or judicial lien, whether or not the interest or lien is provided by
or is dependent on a statute and whether or not the interest or lien
is made fully effective by statute.
(10) The term "transfer" "Transfer"
means every mode, direct or indirect, absolute or conditional,
voluntary or involuntary, or disposing of or parting with property or
with an interest in property, including retention of title as a
security interest.
(b) Except as provided in subdivision (c), the assignee of any
general assignment for the benefit of creditors (as
, as defined in Section 493.010)
493.010, may recover any transfer of property of
the assignor that is all of the following :
(1) To or for the benefit of a creditor ;
.
(2) For or on account of an antecedent debt owed by the assignor
before the transfer was made ; .
(3) Made while the assignor was insolvent ;
.
(4) Made on or within 90 days before the date of the making of the
assignment or made between 90 days and one year before the date of
making the assignment if the creditor, at the time of the transfer,
was an insider and had reasonable cause to believe the debtor was
insolvent at the time of the transfer ; and .
(5) That enables Enables
the creditor to receive more than another creditor of the same class.
(c) The assignee may not recover under this section a transfer
as follows :
(1) To the extent that the transfer was both of the following
:
(A) Intended by the assignor and the creditor to or for whose
benefit the transfer was made to be a contemporaneous exchange for
new value given to the assignor ; and .
(B) In fact a substantially contemporaneous exchange ;
.
(2) To the extent that the transfer was all of the following
:
(A) In payment of a debt incurred in the ordinary course of
business or financial affairs of the assignor and the transferee
; .
(B) Made in the ordinary course of business or financial affairs
of the assignor and the transferee ; and .
(C) Made according to ordinary business terms ;
.
(3) Of a security interest in property acquired by the assignor
that meets both of the following :
(A) To the extent the security interest secures new value that was
all of the following :
(i) Given at or after the signing of a security agreement that
contains a description of the property as collateral ;
.
(ii) Given by or on behalf of the secured party under the
agreement ; .
(iii) Given to enable the assignor to acquire the property
; and .
(iv) In fact used by the assignor to acquire the property
; and .
(B) That is perfected within 20 days after the security interest
attaches ; .
(4) To or for the benefit of a creditor, to the extent that, after
the transfer, the creditor gave new value to or for the benefit of
the assignor that meets both of the following :
(A) Not secured by an otherwise unavoidable security interest
; and .
(B) On account of which new value the assignor did not make an
otherwise unavoidable transfer to or for the benefit of the creditor
; .
(5) Of a perfected security interest in inventory or a receivable
or the proceeds of either, except to the extent that the aggregate of
all the transfers to the transferee caused a reduction, as of the
date of the making of the assignment
and to the prejudice of other creditors holding unsecured
claims, of any amount by which the debt secured by the security
interest exceeded the value of all security interest for the debt on
the later of the following :
(A) Ninety days before the date of the making of the assignment.
(B) The date on which new value was first given under the security
agreement creating the security interest ; or
.
(6) That is the fixing of a statutory lien.
(7) That is payment to a claimant, as defined in Section 3085 of
the Civil Code, in exchange for the claimant's waiver or release of
any potential or asserted claim of lien, stop notice, or right to
recover on a payment bond, or any combination thereof.
(8) To the extent that the transfer was a bona fide payment of a
debt to a spouse, former spouse, or child of the debtor, for alimony
to, maintenance for, or support of, the spouse or child, in
connection with a separation agreement, divorce decree, or other
order of a court of record, or a determination made in accordance
with state or territorial law by a governmental unit, or property
settlement agreement; but not to the extent that either of the
following occurs:
(A) The debt is assigned to another entity voluntarily, by
operation of law or otherwise, in which case , the
assignee may not recover that portion of the transfer that is
assigned to the state or any political subdivision of the state
pursuant to Part D of Title IV of the Social Security Act (42 U.S.C.
Sec. 601 , et. et seq.) and passed on
to the spouse, former spouse, or child of the debtor.
(B) The debt includes a liability designated as alimony,
maintenance, or support, unless the liability is actually in the
nature of alimony, maintenance, or support.
(d) An assignee of any general assignment for the benefit of
creditors (as , as defined in Section
493.010) 493.010 , may avoid a transfer
of property of the assignor transferred to secure reimbursement of a
surety that furnished a bond or other obligation to dissolve a
judicial lien that would have been avoidable by the assignee under
subdivision (b) of this section . The liability of
the surety under the bond or obligation shall be discharged to the
extent of the value of the property recovered by the assignee or the
amount paid to the assignee.
(e) (1) For the purposes of this section:
(A) A transfer of real property other than fixtures, but including
the interest of a seller or purchaser under a contract for the sale
of real property, is perfected when a bona fide purchaser of the
property from the debtor , against whom applicable law
permits the transfer to be perfected , cannot acquire an
interest that is superior to the interest of the transferee.
(B) A transfer of a fixture or property other than real property
is perfected when a creditor on a simple contract cannot acquire a
judicial lien that is superior to the interest of the transferee.
(2) For the purposes of this section, except as provided in
paragraph (3), a transfer is made at any of the following times:
(A) At the time the transfer takes effect between the transferor
and the transferee, if the transfer is perfected at, or within 10
days after, the time, except as provided in subparagraph (B) of
paragraph (3) of subdivision (c).
(B) At the time the transfer is perfected, if the transfer is
perfected after the 10 days.
(C) Immediately before the date of the making
of the assignment if the transfer is not perfected
at the later of:
(i) The making of the assignment.
(ii) Ten days after the transfer takes effect between the
transferor and the transferee.
(3) For the purposes of this section, a transfer is not made until
the assignor has acquired rights in the property transferred.
(f) For the purposes of this section, the assignor is presumed to
have been insolvent on and during the 90 days immediately preceding
the date of the making of the
assignment.
(g) An action by an assignee under this section must be commenced
within one year after the making of
the assignment.
SEC. 76. Section 1985.6 of the Code of Civil Procedure is amended
to read:
1985.6. (a) For purposes of this section, the following terms
have the following meanings:
(1) "Deposition officer" means a person who meets the
qualifications specified in Section 2020.420.
(2) "Employee" means any individual who is or has been employed by
a witness subject to a subpoena duces tecum. "Employee" also means
any individual who is or has been represented by a labor organization
that is a witness subject to a subpoena duces tecum.
(3) "Employment records" means the original or any copy of books,
documents, other writings, or electronic data pertaining to the
employment of any employee maintained by the current or former
employer of the employee, or by any labor organization that has
represented or currently represents the employee.
(4) "Labor organization" has the meaning set forth in Section 1117
of the Labor Code.
(5) "Subpoenaing party" means the person or persons causing a
subpoena duces tecum to be issued or served in connection with any
civil action or proceeding, but does not include the state or local
agencies described in Section 7465 of the Government Code, or any
entity provided for under Article VI of the California Constitution
in any proceeding maintained before an adjudicative body of that
entity pursuant to Chapter 4 (commencing with Section 6000) of
Division 3 of the Business and Professions Code.
(b) Prior to the date called for in the subpoena duces tecum of
the production of employment records, the subpoenaing party shall
serve or cause to be served on the employee whose records are being
sought a copy of: the subpoena duces tecum; the affidavit supporting
the issuance of the subpoena, if any; the notice described in
subdivision (e); and proof of service as provided in paragraph (1) of
subdivision (c). This service shall be made as follows:
(1) To the employee personally, or at his or her last known
address, or in accordance with Chapter 5 (commencing with Section
1010) of Title 14 of Part 2, or, if he or she is a party, to his or
her attorney of record. If the employee is a minor, service shall be
made on the minor's parent, guardian, conservator, or similar
fiduciary, or if one of them cannot be located with reasonable
diligence, then service shall be made on any person having the care
or control of the minor, or with whom the minor resides, and on the
minor if the minor is at least 12 years of age.
(2) Not less than 10 days prior to the date for production
specified in the subpoena duces tecum, plus the additional time
provided by Section 1013 if service is by mail.
(3) At least five days prior to service upon the custodian of the
employment records, plus the additional time provided by Section 1013
if service is by mail.
(c) Prior to the production of the records, the subpoenaing party
shall either:
(1) Serve or cause to be served upon the witness a proof of
personal service or of service by mail attesting to compliance with
subdivision (b).
(2) Furnish the witness a written authorization to release the
records signed by the employee or by his or her attorney of record.
The witness may presume that the attorney purporting to sign the
authorization on behalf of the employee acted with the consent of the
employee, and that any objection to the release of records is
waived.
(d) A subpoena duces tecum for the production of employment
records shall be served in sufficient time to allow the witness a
reasonable time, as provided in Section 2020.410, to locate and
produce the records or copies thereof.
(e) Every copy of the subpoena duces tecum and affidavit served on
an employee or his or her attorney in accordance with subdivision
(b) shall be accompanied by a notice, in a typeface designed to call
attention to the notice, indicating that (1) employment records about
the employee are being sought from the witness named on the
subpoena; (2) the employment records may be protected by a right of
privacy; (3) if the employee objects to the witness furnishing the
records to the party seeking the records, the employee shall file
papers with the court prior to the date specified for production on
the subpoena; and (4) if the subpoenaing party does not agree in
writing to cancel or limit the subpoena, an attorney should be
consulted about the employee's interest in protecting his or her
rights of privacy. If a notice of taking of deposition is also
served, that other notice may be set forth in a single document with
the notice required by this subdivision.
(f) (1) Any employee whose employment
records are sought by a subpoena duces tecum may, prior to the date
for production, bring a motion under Section 1987.1 to quash or
modify the subpoena duces tecum. Notice of the bringing of that
motion shall be given to the witness and the deposition officer at
least five days prior to production. The failure to provide notice to
the deposition officer does not invalidate the motion to quash or
modify the subpoena duces tecum but may be raised by the deposition
officer as an affirmative defense in any action for liability for
improper release of records.
(2) Any nonparty employee whose employment
records are sought by a subpoena duces tecum may, prior to the date
of production, serve on the subpoenaing party, the deposition
officer, and the witness a written objection that cites the specific
grounds on which production of the employment records should be
prohibited.
(3) No witness or deposition officer shall
be required to produce employment records after receipt of notice
that the motion has been brought by an employee, or after receipt of
a written objection from a nonparty employee, except upon order of
the court in which the action is pending or by agreement of the
parties, witnesses, and employees affected.
(4) The party requesting an employee's
employment records may bring a motion under subdivision (c) of
Section 1987 to enforce the subpoena within 20 days of service of the
written objection. The motion shall be accompanied by a declaration
showing a reasonable and good faith attempt at informal resolution of
the dispute between the party requesting the employment records and
the employee or the employee's attorney.
(g) Upon good cause shown and provided that the rights of
witnesses and employees are preserved, a subpoenaing party shall be
entitled to obtain an order shortening the time for service of a
subpoena duces tecum or waiving the requirements of subdivision (b)
where if due diligence by the
subpoenaing party has been shown.
(h) This section may not be construed to apply to any subpoena
duces tecum that does not request the records of any particular
employee or employees and that requires a custodian of records to
delete all information which that would
in any way identify any employee whose records are to be produced.
(i) This section does not apply to proceedings conducted under
Division 1 (commencing with Section 50), Division 4 (commencing with
Section 3200), Division 4.5 (commencing with Section 6100), or
Division 4.7 (commencing with Section 6200), of the Labor Code.
(j) Failure to comply with this section shall be sufficient basis
for the witness to refuse to produce the employment records sought by
subpoena duces tecum.
(k) If the subpoenaing party is the employee, and the employee is
the only subject of the subpoenaed records, notice to the employee,
and delivery of the other documents specified in subdivision (b) to
the employee, is are not required under
this section.
SEC. 77. Section 16101 of the Commercial Code is amended to read:
16101. The repeal and addition of Division 3 (commencing with
Section 3101) and the repeal and addition, the amendment, and the
addition of provisions of Division 4 (commencing with Section 4101),
and the amendment of related sections, adopted by the Legislature in
Chapter 914 of the Statutes of 1992, shall become effective on
January 1, 1993. The Legislature intends that the that
this action be construed as an amendment of
Division 3 (commencing with Section 3101) and Division 4 (commencing
with Section 4101), notwithstanding that the action took the form of
a repeal and addition of Division 3 (commencing with Section 3101),
and a repeal and addition to, and amendment of, or an addition to the
provisions of Division 4 (commencing with Section 4101).
SEC. 78. Section 118 of the Corporations Code is amended to read:
118. Any reference in this division to the time a notice is given
or sent means, unless otherwise expressly provided, (a) the
any of the following:
(a) The time a written notice by
mail is deposited in the United States mails, postage prepaid
; or (b) the .
(b) The time any other written
notice, including facsimile, telegram, or electronic mail message, is
personally delivered to the recipient or is delivered to a common
carrier for transmission, or actually transmitted by the person
giving the notice by electronic means, to the recipient ; or
(c) the .
(c) The time any oral notice is
communicated, in person or by telephone, including a voice messaging
system or other system or technology designed to record and
communicate messages, or wireless, to the recipient, including the
recipient's designated voice mailbox or address on such a
the system, or to a person at the office of the
recipient who the person giving the notice has reason to
belive believe will promptly communicate it to
the recipient.
SEC. 79. Section 7312 of the Corporations Code is amended to read:
7312. No person may hold more than one membership, and no
fractional memberships may be held, provided, however, that
except as follows :
(a) Two or more persons may have an indivisible interest in a
single membership when authorized by, and in a manner or under the
circumstances prescribed by, the articles or bylaws subject to
Section 7612.
(b) If the articles or bylaws provide for classes of membership
and if the articles or bylaws permit a person to be a member of more
than one class, a person may hold a membership in one or more
classes.
(c) Any branch, division, or office of any person, which is not
formed primarily to be a member, may hold a separate membership.
(d) In the case of membership in an owners
owners' association, (as defined in Section 11003.1
of the Business and Professions Code, and created in
connection with any of the forms of development referred to in
Section 11004.5 of the Business and Professions Code)
Code, the articles or bylaws may permit a person
who owns an interest, or who has a right of exclusive occupancy, in
more than one lot, parcel, area, apartment, or unit to hold a
separate membership in the owners' association for each lot, parcel,
area, apartment, or unit.
(e) In the case of membership in a mutual water company, as
defined in Section 14300 of the Corporations Code
, the articles or bylaws may permit a person entitled to membership
by reason of the ownership, lease, or right of occupancy of more than
one lot, parcel, or other service unit to hold a separate membership
in the mutual water company for each such lot,
parcel, or other service unit.
(f) In the case of membership in a mobilehome park acquisition
corporation, as described in Section 11010.8 of the Business and
Professions Code, a bona fide secured party who has, pursuant to a
security interest in a membership, taken title to the membership by
way of foreclosure, repossession , or voluntary
repossession, and who is actively attempting to resell the membership
to a prospective homeowner or resident of the mobilehome park, may
own more than one membership.
SEC. 80. Section 8724 of the Corporations Code is amended to read:
8724. Without the approval of 100 percent of the members, any
contrary provision in this part or the articles or bylaws
notwithstanding, so long as there is any lot, parcel, area, apartment
, or unit for which an owners
owners' association (as defined in Section 11003.1 of
the Business and Professions Code and , created
in connection with any of the forms of development referred to in
Section 11004.5 of the Business and Professions Code)
Code, is obligated to provide management,
maintenance, preservation , or control , the
following shall apply :
(a) The owners owners' association
or any person acting on its behalf shall not do either of the
following :
(1) Transfer all or substantially all of its assets ; or
.
(2) File a certificate of dissolution ; and
.
(b) No court shall enter an order declaring the owners
owners' association duly wound up and dissolved.
SEC. 81. Section 12663 of the Corporations Code is amended to
read:
12663. Without the approval of 100 percent of the members, any
contrary provision in this part or the articles or bylaws
notwithstanding, so long as there is any lot, parcel, area, apartment
or unit for which an owners owners'
association (as defined in Section 11003.1 of the Business
and Professions Code and , created in connection
with any of the forms of development referred to in Section 11004.5
of the Business and Professions Code) Code,
is obligated to provide management, maintenance, preservation
, or control , the following shall apply :
(a) The owners owners' association
or any person acting on its behalf shall not do either of the
following :
(1) Transfer all or substantially all of its assets ; or
.
(2) File a certificate of dissolution ; and
.
(b) No court shall enter an order declaring the owners
owners' association duly wound up and dissolved.
SEC. 82. Section 17104 of the Corporations Code is amended to
read:
17104. (a) Meetings of members may be held at any place, by
electronic video screen communication or by electronic transmission
by and to the limited liability company (paragraphs
pursuant to paragraphs (1) and (2) of
subdivision (o) of Section 17001) 17001
, either within or without this state, selected by the person or
persons calling the meeting or as may be stated in or fixed in
accordance with the articles of organization or a written operating
agreement. If no other place is stated or so fixed, all meetings
shall be held at the principal executive office of the limited
liability company. Unless prohibited by the articles of organization
of the limited liability company, if authorized by the operating
agreement, members not physically present in person or by proxy at a
meeting of members may, by electronic transmission by and to the
limited liability company (paragraphs
pursuant to paragraphs (1) and (2) of subdivision (o) of
Section 17001) 17001 or by electronic
video screen communication, participate in a meeting of members, be
deemed present in person or by proxy, and vote at a meeting of
members whether that meeting is to be held at a designated place or
in whole or in part by means of electronic transmission by and to the
limited liability company or by electronic video screen
communication, in accordance with subdivision (l).
(b) A meeting of the members may be called by any manager or by
any member or members representing more than 10 percent of the
interests of members for the purpose of addressing any matters on
which the members may vote.
(c) (1) Whenever members are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given
not less than 10 days nor more than 60 days before the date of the
meeting to each member entitled to vote at the meeting. The notice
shall state the place, date, and hour of the meeting, the means of
electronic transmission by and to the limited liability company or
electronic video screen communication, if any, and the general nature
of the business to be transacted. No other business may be
transacted at this meeting.
(2) Any report or any notice of a members' meeting shall be given
personally, by electronic transmission by the limited liability
company, or by mail or other means of written communication,
addressed to the member at the address of the member appearing on the
books of the limited liability company or given by the member to the
limited liability company for the purpose of notice, or, if no
address appears or is given, at the place where the principal
executive office of the limited liability company is located or by
publication at least once in a newspaper of general circulation in
the county in which the principal executive office is located. The
notice or report shall be deemed to have been given at the time when
delivered personally, or delivered by electronic
transmission by the limited liability company, or
deposited in the mail , or sent by other means of written
communication. An affidavit of mailing or delivered by electronic
transmission by the limited liability company of any notice or report
in accordance with the provisions of this
article, executed by a manager, shall be prima facie evidence of the
giving of the notice or report.
(3) If any notice or report addressed to the
member at the address of the member appearing on the books of the
limited liability company is returned to the limited liability
company by the United States Postal Service marked to indicate that
the United States Postal Service is unable to deliver the notice or
report to the member at the address, all future notices or reports
shall be deemed to have been duly given without further mailing if
they are available for the member at the principal executive office
of the limited liability company for a period of one year from the
date of the giving of the notice or report to all other members.
(4) Notice given by electronic transmission
by the limited liability company under this subdivision shall be
valid only if it complies with paragraph (1) of subdivision (o) of
Section 17001. Notwithstanding the foregoing
this condition , notice shall not be given by electronic
transmission by the limited liability company under this subdivision
after either of the following:
(A) The limited liability company is unable to deliver two
consecutive notices to the member by that means.
(B) The inability to so deliver the notices to the member becomes
known to the secretary, any assistant secretary, the transfer agent,
or any other person responsible for the giving of the
notice.
(3)
(5) Upon written request to a manager by any person
entitled to call a meeting of members, the manager shall immediately
cause notice to be given to the members entitled to vote that a
meeting will be held at a time requested by the person calling the
meeting, not less than 10 days nor more than 60 days after the
receipt of the request. If the notice is not given within 20 days
after receipt of the request, the person entitled to call the meeting
may give the notice or, upon the application of that person, the
superior court of the county in which the principal executive office
of the limited liability company is located, or if the principal
executive office is not in this state, the county in which the
limited liability company's address in this state is located, shall
summarily order the giving of the notice, after notice to the limited
liability company affording it an opportunity to be heard. The
procedure provided in subdivision (c) of Section 305 shall apply to
the application. The court may issue any order as may be appropriate,
including, without limitation, an order designating the time and
place of the meeting, the record date for determination of members
entitled to vote, and the form of notice.
(d) When a members' meeting is adjourned to another time or place,
unless the articles of organization or a written operating agreement
otherwise require and, except as provided in this subdivision,
notice need not be given of the adjourned meeting if the time and
place thereof or the means of electronic transmission by and to the
limited liability company or electronic video screen communication,
if any, are announced at the meeting at which the adjournment is
taken. At the adjourned meeting, the limited liability company may
transact any business that may have been transacted at the original
meeting. If the adjournment is for more than 45 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each member of
record entitled to vote at the meeting.
(e) The actions taken at any meeting of members, however called
and noticed, and wherever held, have the same validity as if taken at
a meeting duly held after regular call and notice, if a quorum is
present either in person or by proxy, and if, either before or after
the meeting, each of the members entitled to vote, not present in
person or by proxy, provides a waiver of notice or consents to the
holding of the meeting or approves the minutes of the meeting in
writing. All waivers, consents, and approvals shall be filed with the
limited liability company records or made a part of the minutes of
the meeting after conversion to the form in which those records or
minutes are kept. Attendance of a person at a meeting shall
constitute a waiver of notice of the meeting, except when the person
objects, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened.
Attendance at a meeting is not a waiver of any right to object to the
consideration of matters required by this title to be included in
the notice but not so included, if the objection is expressly made at
the meeting. Neither the business to be transacted nor the purpose
of any meeting of members need be specified in any written waiver of
notice, unless otherwise provided in the articles of organization or
operating agreement, except as provided in subdivision (g).
(f) Members may participate in a meeting of the limited liability
company through the use of conference telephones or electronic video
screen communication, as long as all members participating in the
meeting can hear one another, or by electronic transmission by and to
the limited liability company pursuant to paragraphs (1) and (2) of
subdivision (o) of Section 17001. Participation in a meeting pursuant
to this provision constitutes presence in person at that meeting.
(g) Any action approved at a
meeting, other than by unanimous approval of those entitled to vote,
shall be valid only if the general nature of the proposal so approved
was stated in the notice of meeting or in any written waiver of
notice.
(h) (1) A majority in interest of the members represented in
person or by proxy shall constitute a quorum at a meeting of members.
(2) The members present at a duly called or held meeting at which
a quorum is present may continue to transact business until
adjournment, notwithstanding the loss of a quorum, if any action
taken after loss of a quorum, other than adjournment, is approved by
the requisite percentage of interests of members specified in this
title or in the articles of organization or a written operating
agreement.
(3) In the absence of a quorum, any meeting of members may be
adjourned from time to time by the vote of a majority of the
interests represented either in person or by proxy, but no other
business may be transacted, except as provided in paragraph (2).
(i) (1) Any action that may be taken at any meeting of the members
may be taken without a meeting if a consent in writing, setting
forth the action so taken, is signed and delivered to the limited
liability company within 60 days of the record date for that action
by members having not less than the minimum number of votes that
would be necessary to authorize or take that action at a meeting at
which all members entitled to vote thereon were present and voted.
(2) Unless the consents of all members entitled to vote have been
solicited in writing, (A) notice of any member approval of an
amendment to the articles of organization or operating agreement, a
dissolution of the limited liability company as provided in Section
17350, or a merger of the limited liability company as provided in
Section 17551, without a meeting by less than unanimous written
consent shall be given at least 10 days before the consummation of
the action authorized by such the
approval, and (B) prompt notice shall be given of the taking of any
other action approved by members without a meeting by less than
unanimous written consent, to those members entitled to vote who have
not consented in writing.
(3) Any member giving a written consent, or the member's
proxyholder, may revoke the consent personally or by proxy by a
writing received by the limited liability company prior to the time
that written consents of members having the minimum number of votes
that would be required to authorize the proposed action have been
filed with the limited liability company, but may not do so
thereafter. This revocation is effective upon its receipt at the
office of the limited liability company required to be maintained
pursuant to Section 17057.
(j) The use of proxies in connection with this section will be
governed in the same manner as in the case of corporations formed
under the General Corporation Law.
(k) In order that the limited liability company may determine the
members of record entitled to notices of any meeting or to vote, or
entitled to receive any distribution or to exercise any rights in
respect of any other lawful action, a manager, or members
representing more than 10 percent of the interests of members, may
fix, in advance, a record date, that is not more than 60 days nor
less than 10 days prior to the date of the meeting and not more than
60 days prior to any other action. If no record date is fixed
the following shall apply :
(1) The record date for determining members entitled to notice of
or to vote at a meeting of members shall be at the close of business
on the business day next preceding the day on which notice is given
or, if notice is waived, at the close of business on the business day
next preceding the day on which the meeting is held.
(2) The record date for determining members entitled to give
consent to limited liability company action in writing without a
meeting shall be the day on which the first written consent is given.
(3) The record date for determining members for any other purpose
shall be at the close of business on the day on which the managers
adopt the resolution relating thereto, or the 60th day prior to the
date of the other action, whichever is later.
(4) The determination of members of record entitled to notice of
or to vote at a meeting of members shall apply to any adjournment of
the meeting unless a manager or the members who called the meeting
fix a new record date for the adjourned meeting, but the manager or
the members who called the meeting shall fix a new record date if the
meeting is adjourned for more than 45 days from the date set for the
original meeting.
(l) A meeting of the members may be conducted, in whole or in
part, by electronic transmission by and to the limited liability
company or by electronic video screen communication (1)
if the both of the following
requirements are met:
(1) The limited liability company
implements reasonable measures to provide members (in
, in person or by proxy)
proxy, a reasonable opportunity to participate in the meeting
and to vote on matters submitted to the members, including an
opportunity to read or hear the proceedings of the meeting
substantially concurrently with those proceedings , and (2)
if .
(2) When any member votes or
takes other action at the meeting by means of electronic transmission
to the limited liability company or electronic video screen
communication, a record of that vote or action is maintained by the
limited liability company.
SEC. 83. Section 25100.1 of the Corporations Code is amended to
read:
25100.1. The following securities are not subject to Sections
25110, 25120, and 25130:
(a) A security defined as a "covered security" pursuant to Section
18(b)(1) of the Securities Act of 1933 (15 U.S.C. Sec.
77r).
(b) A security issued by an investment company that is registered
or that has filed a registration statement under the Investment
Company Act of 1940 (15 U.S.C. Sec. 80a-1) and that is
defined as a "covered security" pursuant to Section 18(b)(2) of the
Securities Act of 1933, and all the following requirements are met:
(1) Prior to any offer or sale in this state , there is
filed with or paid to the commissioner each of the following:
(A) A notice consisting of all documents that are part of a
federal registration statement filed with the Securities and Exchange
Commission pursuant to the Securities Act of 1933 or, in lieu
thereof, a form prescribed by the commissioner, and that a consent to
service of process is either on file with the commissioner or is
attached to the notice.
(B) As necessary to compute fees, a report of the value of
securities covered under this subdivision that are offered or sold in
this state.
(C) The notice filing fee provided for in subdivision (a) of
Section 25608.1.
(2) If any offer or sale is to be made pursuant to Section 18(b)
(2) of the Securities Act of 1933 and this subdivision more
the than 12 months after the date the notice was
filed under this subdivision, the issuer shall file another notice
and pay the fee specified in subparagraph (C) of paragraph (1).
SEC. 84. Section 1753 of the Education Code is amended to read:
1753. The services described in Section
Sections 1750, 1751, and 1752 shall be performed by persons who
hold a valid health and development credential, or life diploma
based thereon, or a services credential with a specialization in
health issued by the State Board of Education
state board or Commission for Teacher Preparation and
Licensing; provided, however, that a psychologist may be employed to
perform psychological services or may perform psychological services
under contract if he or she is the holder of a valid
school psychologist credential issued by the State Board of
Education state board .
SEC. 85. Section 1762 of the Education Code is amended to read:
1762. The services described in Section
Sections 1760 and 1761 shall be performed by persons who hold a
valid credential issued by the State Board of Education
state board or Commission for Teacher
Preparation and Licensing authorizing performance of the services.
SEC. 86. Section 7002.5 of the Education Code is amended to read:
7002.5. (a) This article does not create a vested retirement
right in health and dental care benefits.
(b) The individual districts, the county office, a health plan, an
entity proving providing or arranging
a health plan, and the State Teachers' Retirement System do not have
any legal duty to contact retired teachers or surviving spouses of
certificated employees with regard to this article.
SEC. 87. Section 8275 of the Education Code is amended to read:
8275. (a) The Superintendent of Public Instruction
may reimburse approvable start-up
start up costs of child development agencies or
facilities in an amount not to exceed 15 percent of the expansion or
increase of each such agency's total contract
amount. Under no circumstances shall reimbursement for
start-up start up costs result in an
increase in the agency's total contract amount. Such
These funds shall be available for all of the
following:
(1) The employment and orientation of necessary staff.
(2) The setting up of the program and facility.
(3) The finalization of rental agreements and the making of
necessary deposits.
(4) The purchase of a reasonable inventory of materials and
supplies.
(5) The purchase of an initial premium for insurance.
(b) Agencies shall submit claims for start-up
start up costs with their first quarterly
reports.
(c) The Legislature recognizes that allowances for startup costs
are necessary for the establishment and stability of new child
development programs. Programs initially funded in the 1978-79 fiscal
year and 1979-80 fiscal year are included in the provisions
of this section.
SEC. 88. Section 8363.5 of the Education Code is amended to read:
8363.5. (a) A special child development
permit shall be issued to any person employed as a supervisor, head
teacher, or teacher by an agency conducting a child care and
development program under contract with a county who did not meet the
requirements for an emergency instructional permit authorizing
service in children's centers or a supervisor's permit with
postponement of requirements authorizing service in a children's
center in effect on October 15, 1974. A special child development
permit issued pursuant to this section shall be valid for 36 months
after its date of issuance. Within the 36-month period following the
date of issuance of such a the permit
, the following shall apply :
(a)
(1) A person employed as a head teacher or teacher who
has completed 30 semester hours of coursework taken in an approved
institution, including 12 semester hours of coursework in subject
fields related to early childhood education, shall be issued an
emergency instructional permit authorizing service in a children's
center and be subject to the term and renewal regulations in effect
on October 15, 1974.
(b)
(2) A person employed as a supervisor who has obtained
a bachelor's degree from an approved institution and completed at
least 12 semester hours of coursework in subject field
fields related to early childhood education
shall be issued a supervision permit with postponement of
requirements authorizing service in children's centers and be subject
to the term and renewal regulations in effect on October 15, 1974.
(b) It is the intention of the Legislature
that this section be liberally interpreted to insure
ensure that those experienced and qualified
persons employed in county contract day care centers prior to July 1,
1974, maintain their positions and be given ample opportunity to
upgrade their skills to meet revised educational standards.
SEC. 89. Section 8484.75 of the Education Code is amended to read:
8484.75. The requirements of the After School Education and
Safety Program described in Article 22.5 (commencing with Section
8482) , apply to the program established by this
article, with the following exceptions as applicable:
(a) Sections 8482.5, 8482.55, 8483.5, 8483.55, 8483.6, 8483.7,
8483.75, and 8484.5 , do not apply to this
article.
(b) Any provision of Article 22.5 (commencing with Section 8482)
that is in conflict with, or duplicative of, any provision of this
article.
(c) Any provision that is in conflict with applicable federal law
or regulations.
SEC. 90. Section 8498 of the Education Code is amended to read:
8498. (a) The State Allocation Board may use up to 5 percent of
any appropriation for the purposes of this article to provide loans
to private nonsectarian child care and development programs not under
contract with the State Department of Education
department for renovation and repair of existing program
facilities, in accordance with this section.
(b) The Superintendant of Public Instruction
Superintendent shall establish qualifications to determine
the eligibility of child care agencies for loans pursuant to this
section.
(c) The board, with any necessary assistance from the
Superintendent of Public Instruction , may do any
of the following:
(1) Establish procedures and policies in connection with the
administration of this section it deems necessary.
(2) Adopt rules and regulations for the administration of this
section requiring procedure, forms, and information it deems
necessary.
(d) A recipient of a loan pursuant to this section shall do all of
the following:
(1) Document that the renovated facility shall comply with all
laws and regulations applicable to child care facilities provided for
pursuant to Chapter 3.4 (commencing with Section 1596.70) and
Chapter 3.5 (commencing with Section 1596.90) of Division 2 of the
Health and Safety Code.
(2) Demonstrate to the satisfaction of the board that it will have
sufficient revenues to pay the principal and interest on the loan
and to maintain the operation of the child care facility.
(e) A recipient of a loan pursuant to this section shall assure
the board that the renovated facility shall be used for purposes of
the child care and development program for the following periods:
(1) For loans equal to or less than thirty thousand dollars
($30,000), not less than three years from the beginning of the loan
period.
(2) For loans exceeding thirty thousand dollars ($30,000), the
fixed period of time shall increase one year for each additional ten
thousand dollars ($10,000) or part thereof, to a maximum of fifty
thousand dollars ($50,000).
(f) The board shall set the period of the loan for each recipient,
up to a maximum of 10 years, based upon the amount of the loan, the
recipient's ability to repay the loan, and the length of time the
recipient has committed to use the renovated facility for purposes of
the child care and development program.
(g) Interest on the loan principal shall be charged at a rate
equal to the average of the interest rate applied to the last three
bond sales pursuant to Chapter 21.6 (commencing with Section 17695)
of Part 10.
(h) In the event that a recipient ceases to use the renovated
facility for purposes of the child care and development program prior
to the expiration of the period specified pursuant to subdivision
(e), the board shall collect the entire outstanding balance of the
loan, plus interest, notwithstanding the loan period originally set
pursuant to subdivision (f).
SEC. 91. Section 8669 of the Education Code, as amended by Section
1 of Chapter 676 of the Statutes of 2005, is amended to read:
8669. (a) It is the intent of the Legislature that at least 50
percent, but not more than 75 percent, of the actual costs of the
California State Summer School for Mathematics and Science for each
fiscal year would be financed by state funds beginning in the
1999-2000 fiscal year. The balance of the operating costs would be
financed with fees and private support.
(b) Except as provided in subdivision (c), the Regents of the
University of California shall set a tuition fee within a range that
corresponds to actual program costs, up to but not exceeding two
thousand two hundred dollars ($2,200) per session in the year 2006,
and may increase this fee by an amount up to 5 percent each year
thereafter. It is the intent of the Legislature that the University
of California award full or partial scholarships on the basis of need
and that pupils who are unable to pay all or part of the fee may
petition the University of California for a fee reduction or waiver
to ensure that a qualified applicant is not denied admission solely
because of an ability his or her inability
to pay part or all of the fee. Any public announcement
regarding the summer school program should include notification that
need-based scholarships are available, and information regarding the
procedure for applying for a scholarship award.
(c) For pupils who are not California residents, it is the intent
of the Legislature that the Regents of the University of California
set a tuition fee that is not less than the total actual costs to the
summer school of services per pupil.
(d) The foundation authorized to be established pursuant to
subdivision (f) of Section 8664 may raise funds from the private
sector that may be used by the summer school for general program
operating costs, scholarships, program augmentation, public
relations, recruitment activity, or special projects. Private support
may include, but not necessarily be limited to, direct grants to the
summer school from private corporations or foundations, individual
contributions, in-kind contributions, or fundraising benefits
conducted by any entity.
(e) 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. 92. Section 8669 of the Education Code, as added by Section 2
of Chapter 676 of the Statutes of 2005, is amended to read:
8669. (a) It is the intent of the Legislature that at least 50
percent, but not more than 75 percent, of the actual costs of the
California State Summer School for Mathematics and Science for each
fiscal year would be financed by state funds beginning in the
1999-2000 fiscal year. The balance of the operating costs would be
financed with fees and private support.
(b) Except as provided in subdivision (c), the Regents of the
University of California shall set a tuition fee within a range that
corresponds to actual program costs, up to but not exceeding one
thousand dollars ($1,000) per session in the year 2000, and may
increase this fee by an amount up to 5 percent each year thereafter.
It is the intent of the Legislature that the University of California
award full or partial scholarships on the basis of need and that
pupils who are unable to pay all or part of the fee may petition the
University of California for a fee reduction or waiver to ensure that
a qualified applicant is not denied admission solely because of
an ability his or her inability to pay
part or all of the fee. Any public announcement regarding the summer
school program should include notification that need-based
scholarships are available, and information regarding the procedure
for applying for a scholarship award.
(c) For pupils who are not California residents, it is the intent
of the Legislature that the Regents of the University of California
set a tuition fee that is not less than the total actual costs to the
summer school of services per pupil.
(d) The foundation authorized to be established pursuant to
subdivision (f) of Section 8664 may raise funds from the private
sector that may be used by the summer school for general program
operating costs, scholarships, program augmentation, public
relations, recruitment activity, or special projects. Private support
may include, but not necessarily be limited to, direct grants to the
summer school from private corporations or foundations, individual
contributions, in-kind contributions, or fundraising benefits
conducted by any entity.
(e) This section shall become operative on January 1, 2008.
SEC. 93. 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) of Part 6
.
SEC. 94. Section 12117 of the Education Code is amended to read:
12117. (a) The State Agency for Donated
Food Distribution may, without at the time furnishing vouchers or
itemized statements, draw from the Donated Food Revolving Fund for
use as a departmental revolving fund either of the following
:
(a)
(1) A sum of not to exceed thirty
thousand dollars ($30,000) , or .
(b)
(2) With the approval of the Department of Finance
, a sum in excess of thirty thousand dollars ($30,000).
(b) Any moneys so
withdrawn pursuant to subdivision (a) may only be used, in
accordance with law and the Board of Control
California Victim Compensation and Government Claims Board
rules, for payment of compensation earned, traveling expense,
traveling expense advances , or where immediate payment is
otherwise necessary. All disbursements from the revolving fund
must shall be substantiated by vouchers
filed with and audited by the Controller. From time to time,
disbursements, supported by vouchers, may be reported to the
Controller in connection with claims for reimbursement of the
departmental revolving fund. At any time upon the demand of the
Department of Finance or the Controller, such
the revolving fund must shall be
accounted for and substantiated by vouchers and itemized statements
submitted to and audited by the Controller.
SEC. 95. Section 17625 of the Education Code is amended to read:
17625. (a) Notwithstanding any other law,
any fee, charge, dedication, or other form of requirement levied by
the governing board of a school district under Section 17620 may
apply, as to any manufactured home or mobilehome, only pursuant to
compliance with all of the following conditions:
(1) The fee, charge, dedication, or other form of requirement is
applied to the initial location, installation, or occupancy of the
manufactured home or mobilehome within the school district.
(2) The manufactured home or mobilehome is to be located,
installed, or occupied on a space or site on which no other
manufactured home or mobilehome was previously located, installed, or
occupied.
(3) The manufactured home or mobilehome is to be located,
installed, or occupied on a space in a mobilehome park, or on any
site or in any development outside a mobilehome park, on which the
construction of the pad or foundation system commenced after
September 1, 1986.
(b) Compliance on the part of any manufactured home or mobilehome
with any fee, charge, dedication, or other form of requirement, as
described in subdivision (a), or certification by the appropriate
school district of that compliance, shall be required as a condition
of the following, as applicable:
(1) The close of escrow, where if the
manufactured home or mobilehome is to be located, installed, or
occupied on a mobilehome park space, or on any site or in any
development outside a mobilehome park, as described in subdivision
(a), and the sale or transfer of the manufactured home or mobilehome
is subject to escrow as provided in Section 18035 or 18035.2 of the
Health and Safety Code.
(2) The approval of the manufactured home or mobilehome for
occupancy pursuant to Section 18551 or 18613 of the Health and Safety
Code, in the event that paragraph (1) does not apply.
(c) No A fee or other
requirement levied under Section 17620 shall not be
applied to any of the following:
(1) Any manufactured home or mobilehome located, installed, or
occupied on a space in a mobilehome park on or before September 1,
1986, or on any date thereafter, if construction on that space,
pursuant to a building permit, commenced on or before September 1,
1986.
(2) Any manufactured home or mobilehome located, installed, or
occupied on any site outside of a mobilehome park on or before
September 1, 1986, or on any date thereafter if construction on that
site pursuant to a building permit commenced on or before September
1, 1986.
(3) The replacement of , or addition to , a
manufactured home or mobilehome located, installed, or occupied on a
space in a mobilehome park, subsequent to the original location,
installation, or occupancy of any manufactured home or mobilehome on
that space.
(4) The replacement of a manufactured home or mobilehome that was
destroyed or damaged by fire or any form of natural disaster.
(5) A manufactured home or mobilehome accessory structure, as
defined in Section 18008.5 or 18213 of the Health and Safety Code.
(6) The conversion of a rental mobilehome park to a subdivision,
cooperative, or condominium for mobilehomes, or its conversion to any
other form of resident ownership of the park, as described in
Section 50561 of the Health and Safety Code.
(d) Where If any fee or other
requirement levied under Section 17620 is required as to any
manufactured home or mobilehome that is subsequently replaced by a
permanent residential structure constructed on the same lot, the
amount of that fee or other requirement shall apply toward the
payment of any fee or other requirement under Section 17620 applied
to that permanent residential structure.
(e) Notwithstanding any other provision of law, any school
district that, on or after January 1, 1987, collected any fee,
charge, dedication, or other form of requirement from
any manufactured home,
mobilehome, mobilehome park, or other development, shall immediately
repay the fee, charge, dedication, or other form of requirement to
the person or persons who made the payment to the extent the fee,
charge, dedication, or other form of requirement collected would not
have been authorized under subdivision (a). This subdivision shall
not apply, however, to the extent that, pursuant to Section 16 of
Article I of the California Constitution, it would impair the
obligation of any contract entered into by any school district, on or
before the effective date of this section
January 1, 1997 .
(f) For purposes of this section, "manufactured home,"
"mobilehome," and "mobilehome park" have the meanings set forth in
Sections 18007, 18008, and 18214, respectively, of the Health and
Safety Code.
(g) (1) Whenever a manufactured home or a mobilehome owned by a
person 55 years of age or older who is also a member of a lower
income household as defined by Section 50079.5 of the Health and
Safety Code, and which has been moved from a mobilehome park space
located in one school district, where the mobilehome owner has
resided, to a space or lot located in a mobilehome park or a
subdivision, cooperative, or condominium for mobilehomes or
manufactured homes located in another school district, is subject to
any fee or other requirement under Section 17620, this section, and
Chapter 4.9 (commencing with Section 65995) of Division 1 of Title 7
of the Government Code, the district in which the manufactured home
or mobilehome has been newly located may waive the fee or other
requirement under Section 53080, this section, and Chapter 4.9
(commencing with Section 65995) of Division 1 of Title 7 of the
Government Code, or otherwise shall be required to grant the
homeowner the necessary approval for occupancy of the home, and
permission to pay the amount of the fee or other requirement
thereafter, in installments, over a period totaling no less than 36
months. A school district may require that the installments be paid
monthly, quarterly, or every six months during the 36-month period,
and that the fee be secured as a lien perfected against the
mobilehome or manufactured home pursuant to Section 18080.7 of the
Health and Safety Code.
(2) Costs of filing the lien and reasonable late charges or
interest may be added to the amount of the lien. This subdivision
does not apply where if a school
facilities fee, charge, or other requirement is imposed pursuant to
Section 65995.2 of the Government Code.
SEC. 96. Section 19980 of the Education Code is amended to read:
19980. The Legislature hereby finds and declares that, inasmuch
as the procee ds proceeds from the sale
of bonds authorized by this chapter are not "proceeds of taxes" as
that term is used in Article XIII B of the California Constitution,
the disbursement of these proceeds is not subject to the limitations
imposed by that article.
SEC. 97. Section 22121 of the Education Code is amended to read:
22121. (a) "Credited service" means service for which the
required contributions have been paid.
(b) "Credited service" for the limited purpose of determining
eligibilty eligibility for benefits
pursuant to Section 22134.5, 24203.5, or 24203.6 also includes up to
two-tenths of one year of service granted pursuant to Section 22717.
SEC. 98. Section 24618 of the Education Code is amended to read:
24618. Losses or gains resulting from overpayment or underpayment
of contributions or other amounts under this part within the limits
set by the State Board of Control California
Victim Compensation and Government Claims Board for automatic
writeoff, and losses or gains in greater amounts specifically
approved for writeoffs by the State Board of Control
California Victim Compensation and Government Claims
Board , shall be debited or credited, as the case may be, to
the appropriate reserve in the retirement fund.
SEC. 99. Section 32255 of the Education Code is amended to read:
32255. As use used in this chapter:
(a) "Animal" means any living organism of the kingdom animalia,
beings which that typically differ from
plants in capacity for spontaneous movement and rapid motor response
to stimulation , by a usually greater mobility
with some degree of voluntary locomotor ability ,
and by greater irritability commonly mediated through a
more or less centralized nervous system, beings which
that are characterized by a requirement for
complex organic nutrients including proteins or their constituents
which that are usually digested in an
internal cavity before assimilation into the body proper,
which and beings that are distinguished from
typical plants by lack of chlorophyll, by an inability to perform
photosynthesis, by cells that lack cellulose walls, and by the
frequent presence of discrete complex sense organs.
(b) "Alternative education project" includes, but is not limited
to, the use of video tapes, models, films, books, and computers,
which would provide an alternate avenue for obtaining the knowledge,
information, or experience required by the course of study in
question. "Alternative education project" also includes "alternative
test."
(c) "Pupil" means a person under 18 years of age who is
matriculated in a course of instruction in an educational institution
within the scope of Section 32255.5. For the purpose of asserting
the pupil's rights and receiving any notice or response pursuant to
this chapter, "pupil" also includes the parents of the matriculated
minor.
SEC. 100. Section 32255.1 of the Education Code is amended to
read:
32255.1. (a) Except as otherwise provided in Section 32255.6, any
pupil with a moral objection to dissecting or otherwise harming or
destroying animals, or any parts thereof, shall notify his or her
teacher regarding this objection, upon notification by the school of
his or her rights pursuant to Section 32255.4.
(b) If the pupil chooses to refrain from participation in an
education project involving the harmful or destructive use of
animals, and if the teacher believes that an adequate alternative
education project is possible, then the teacher
may work with the pupil to develop and agree upon an alternate
education project for the purpose of providing the pupil an alternate
avenue for obtaining the knowledge, information, or experience
required by the course of study in question.
(c) The alternative education project shall require a comparable
time and effort investment by the pupil. It shall not, as a means of
penalizing the pupil , be more arduous than the original
education project.
(d) The pupil shall not be discriminated against based upon his or
her decision to exercise his or her rights pursuant to this chapter.
(e) Pupils choosing an alternative educational project shall pass
all examinations of the respective course of study in order to
receive credit for that course of study. However, if tests require
the harmful or destructive use of animals, a pupil may,
similarily similarly , seek alternative tests
pursuant to this chapter.
(f) A pupil's objection to participating in an educational project
pursuant to this section shall be substantiated by a note from his
or her parent or guardian.
SEC. 101. Section 33551 of the Education Code is amended to read:
33551. The Members of the Legislature appointed to the commission
pursuant to Section 33551 33550 shall
have the powers and duties of a joint legislative committee on the
subject of educational management and evaluation and shall meet with,
and participate in, the work of the commission to the extent that
such this participation is not
incompatible with their positions as Members of the Legislature.
The Members of the Legislature appointed to the commission shall
serve at the pleasure of the appointing power.
SEC. 102. Section 35105 of the Education Code is amended to read:
35105. Subject to the procedures prescribed by Sections
5010 and 5007 Section 1302.2 of the Elections Code
with respect to newly formed unified school districts, the
majority of members of the first elected board of any newly formed
school district, the members of which majority received the highest
number of votes, shall serve until the first Friday in December of
the second succeeding odd-numbered year. The other members' terms
shall expire on the first Friday in December of the first succeeding
odd-numbered year. All of these members shall continue in office
until their successors are elected and qualified.
SEC. 103. Section 41500 of the Education Code is amended to read:
41500. (a) Notwithstanding any other provision of law, a school
district and county office of education may expend in a fiscal year
up to 15 percent of the amount apportioned for the block grants set
forth in Article 3 (commencing with Section 41510), Article 5
(commencing with Section 41530), Article 6 (commencing with Section
41540), or Article 7 (commencing with Section 41570) for any other
programs for which the school district or county office is eligible
for funding, including programs whose any
program the funding of which is not
included in any of the block grants established pursuant to this
chapter. The total amount of funding a school district or county
office of education may expend for a program to which funds are
transferred pursuant to this section may not exceed 120 percent of
the amount of state funding allocated to the school district or
county office for purposes of that program in a fiscal year. For
purposes of this subdivision, "total amount" means the amount of
state funding allocated to a school district or county office for
purposes of a particular program in a fiscal year plus the amount
transferred in that fiscal year to that program pursuant to this
section.
(b) A school district and county office of education shall not,
pursuant to this section, transfer funds from Article 2 (commencing
with Section 41505) and Article 4 (commending
(commencing with Section 41520).
(c) Before a school district or county office of education may
expend funds pursuant to this section, the governing board of the
school district or the county board of education, as applicable,
shall discuss the matter at a noticed public meeting.
(d) A school district shall track transfers made pursuant to this
section.
SEC. 104. Section 42238.4 of the Education Code is amended to
read:
42238.4. (a) For the 1995-96 fiscal year, the county
superintendent of schools shall compute an equalization adjustment
for each school district in the county, so that no district's base
revenue limit per unit of average daily attendance is less than the
prior fiscal year statewide average base revenue limit for the
appropriate size and type of district listed in subdivision (b) plus
the inflation adjustment specified in Section 42238.1 for the current
fiscal year for the appropriate type of district.
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 1994-95 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 calculated as 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), the
Superintendent of Public Instruction shall use a
school district's revenue limit average daily attendance for the
1994-95 fiscal year determined pursuant the
to Section 42238.5 and Article 4 (commencing with Section
42280).
(e) This section shall only be operative if the Director of
Finance certifies that a settlement agreement in California Teachers
Association v. Gould , (Sacramento County Superior
Court Case CV 373415) is effective. No funds shall be disbursed
under this section for this purpose before August 1, 1996 ,
and any apportionment or allocation of funds appropriated for
purposes of this section shall be accounted for in the 1995-96 fiscal
year.
(f) Appropriations for the 1995-96 fiscal year as a result of the
implementation of this section shall be deemed "General Fund revenues
appropriated for school districts," as defined in subdivision (c) of
Section 41202, for the 1995-96 fiscal year and "total allocations to
school districts and community college districts from General Fund
proceeds of taxes appropriated to Article XIII B," as defined in
subdivision (e) of Section 41202, for that fiscal year, for purposes
of Section 8 of Article XVI of the California Constitution.
SEC. 105. Section 44210 of the Education Code is amended to read:
44210. (a) There is hereby established in
the state government the Commission on Teacher Credentialing, to
consist of 15 voting members, 14 of whom shall be appointed by the
Governor with the advice and consent of the Senate, as specified in
subdivisions (b) to (g) paragraphs (2) to (7)
, inclusive. The commission shall consist of the following
members:
(a)
(1) The Superintendent of Public Instruction
or his or her designee.
(b)
(2) Six practicing teachers from public elementary and
secondary schools in California.
(c)
(3) One person who is employed on the basis of a
services credential other than an administrative services credential.
(d)
(4) One member of a school district governing board.
(e)
(5) Four representatives of the public. None of these
persons shall have been employed by an elementary or secondary school
district in a position requiring certification, or shall have served
as a school district governing board member in the five-year period
immediately prior to his or her appointment to the commission.
(f)
(6) One school administrator in a public elementary or
secondary school in California.
(g)
(7) One faculty member from a college or university
that grants baccalaureate degrees.
(b) With the exception of the four
representatives of the public and the Superintendent of
Public Instruction , the appointment of a member shall
terminate if he or she is no longer a practicing teacher in a public
elementary or secondary school, or a person who is
employed on the basis of a valid services credential, or
a school administrator, or a faculty
member of a college or university that grants baccalaureate degrees,
or a school district governing board member, as may be the case, in
California.
(c) Not more than one member of the
commission is to be appointed from the same school district or
college or university campus.
(d) The term of each member appointed to the
commission on or prior to June 30, 1989, shall expire on July 1,
1989. It is the intent of the Legislature that as of July 1, 1989,
the Governor first appoint to the commission, as feasible, members of
the Commission on Teacher Credentialing whose terms, notwithstanding
this section, would not have expired, to facilitate the transition
to a commission with a reduced membership. Commencing July 1, 1989,
four members shall be appointed to the commission for terms of two
years, five members for terms of three years, and five members
of for terms of four years.
(h)
(e) Each appointment pursuant to this section shall
expire on November 20 of the year of expiration of the applicable
term. All appointments made pursuant to this section shall
be are subject to Section 44213.
SEC. 106. Section 44929.23 of the Education Code is amended to
read:
44929.23. (a) The governing board of a school district of any
type or class having an average daily attendance of less than 250
pupils may classify as a permanent employee of the district any
employee , who, after having been employed by the
school district for three complete consecutive school years in a
position or positions requiring certification qualifications, is
reelected for the next succeeding school year to a position requiring
certification qualifications. If that classification is not made,
the employee shall not attain permanent status and may be reelected
from year to year thereafter without becoming a permanent employee
until a change in classification is made.
(b) Notwithstanding subdivision (a), Section 44929.21 shall apply
to certificated employees employed by a school district, if the
governing board of the school district elects to dismiss
probationary employees pursuant to Section 44948.2. If that election
is made by , the governing board
of the school district thereafter shall classify
as a permanent employee of the district any probationary employee
, who, after being employed for two complete
consecutive school years in a position or positions requiring
certification qualifications, is reelected for the next succeeding
school year to a position requiring certification qualifications as
required by Section 44929.21. Any probationary employee who has been
employed by the district for two or more consecutive years on the
date of that election in a position or positions requiring
certification qualifications shall be classified as a permanent
employee of the district.
(c) If the classification is not made pursuant to subdivision (a)
or (b) , the employee shall not attain permanent status
and may be reelected from year to year thereafter without becoming a
permanent employee until the classification is made.
SEC. 107. Section 44944 of the Education Code is amended to read:
44944. (a) (1) In a dismissal or suspension
proceeding initiated pursuant to Section 44934, if a hearing is
requested by the employee, the hearing shall be commenced within 60
days from the date of the employee's demand for a hearing. The
hearing shall be initiated, conducted, and a decision made in
accordance with Chapter 5 (commencing with Section 11500) of Part 1
of Division 3 of Title 2 of the Government Code. However, the hearing
date shall be established after consultation with the employee and
the governing board, or their representatives, and the Commission on
Professional Competence shall have all of the power
granted to an agency in that chapter, except that the right of
discovery of the parties shall not be limited to those matters set
forth in Section 11507.6 of the Government Code but shall include the
rights and duties of any party in a civil action brought in a
superior court under Title 4 (commencing with Section 2016.010) of
Part 4 of the Code of Civil Procedure. Notwithstanding any provision
to the contrary, and except for the taking of oral depositions, no
discovery shall occur later than 30 calendar days after the employee
is served with a copy of the accusation pursuant to Section 11505 of
the Government Code. In all cases, discovery shall be completed prior
to seven calendar days before the date upon which the hearing
commences. If any continuance is granted pursuant to Section 11524 of
the Government Code, the time limitation for commencement of the
hearing as provided in this subdivision shall be extended for a
period of time equal to the continuance. However, the extension shall
not include that period of time attributable to an unlawful refusal
by either party to allow the discovery provided for in this section.
(2) If the right of discovery granted under
the preceding paragraph (1) is denied
by either the employee or the governing board, all of the
remedies in Chapter 7 (commencing with Section 2023.010) of Title 4
of Part 4 of the Code of Civil Procedure shall be available to the
party seeking discovery and the court of proper jurisdiction, to
entertain his or her motion, shall be the superior court of the
county in which the hearing will be held.
(3) The time periods in this section and of
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code and of Title 4 (commencing with
Section 2016.010) of Part 4 of the Code of Civil Procedure shall not
be applied so as to deny discovery in a hearing conducted pursuant to
this section.
(4) The superior court of the county in
which the hearing will be held may, upon motion of the party seeking
discovery, suspend the hearing so as to comply with the requirement
of the preceding paragraph.
(5) No witness shall be permitted to testify
at the hearing except upon oath or affirmation. No testimony shall
be given or evidence introduced relating to matters which
that occurred more than four years prior to the
date of the filing of the notice. Evidence of records regularly kept
by the governing board concerning the employee may be introduced, but
no decision relating to the dismissal or suspension of any employee
shall be made based on charges or evidence of any nature relating to
matters occurring more than four years prior to the filing of the
notice.
(b) (1) The hearing provided for in this
section shall be conducted by a Commission on Professional
Competence. One member of the commission shall be selected by the
employee, one member shall be selected by the governing board, and
one member shall be an administrative law judge of the Office of
Administrative Hearings who shall be chairperson and a voting member
of the commission and shall be responsible for assuring that the
legal rights of the parties are protected at the hearing. If either
the governing board or the employee for any reason fails to select a
commission member at least seven calendar days prior to the date of
the hearing, the failure shall constitute a waiver of the right to
selection, and the county board of education or its specific designee
shall immediately make the selection. When
If the county board of education is also the governing board of
the school district or has by statute been granted the powers of a
governing board, the selection shall be made by the Superintendent
of Public Instruction , who shall be reimbursed by
the school district for all costs incident to the selection.
(2) The member selected by the governing
board and the member selected by the employee shall not be related to
the employee and shall not be employees of the district initiating
the dismissal or suspension and shall hold a currently valid
credential and have at least five years' experience within the past
10 years in the discipline of the employee.
(c) (1) The decision of the Commission on
Professional Competence shall be made by a majority vote, and the
commission shall prepare a written decision containing findings of
fact, determinations of issues, and a disposition which
that shall be, solely , one of the
following :
(1)
(A) That the employee should be dismissed.
(2)
(B) That the employee should be suspended for a
specific period of time without pay.
(3)
(C) That the employee should not be dismissed or
suspended.
(2) The decision of the Commission on
Professional Competence that the employee should not be dismissed or
suspended shall not be based on nonsubstantive procedural errors
committed by the school district or governing board unless the errors
are prejudicial errors.
(3) The commission shall not have the power
to dispose of the charge of dismissal by imposing probation or other
alternative sanctions. The imposition of suspension pursuant to
paragraph (2) subparagraph (B) of paragraph
(1) shall be available only in a suspension proceeding
authorized pursuant to subdivision (b) of Section 44932 or Section
44933.
(4) The decision of the Commission on
Professional Competence shall be deemed to be the final decision of
the governing board.
(5) The board may adopt from time to time
rules and procedures not inconsistent with provisions of
this section as may be necessary to effectuate this
section.
(6) The governing board and the employee
shall have the right to be represented by counsel.
(d) (1) If the member selected by the governing board or the
member selected by the employee is employed by any school district in
this state , the member shall, during any service on a
Commission on Professional Competence, continue to receive salary,
fringe benefits, accumulated sick leave, and other leaves and
benefits from the district in which the member is employed, but shall
receive no additional compensation or honorariums for service on the
commission.
(2) If service on a Commission on Professional Competence occurs
during summer recess or vacation periods, the member shall receive
compensation proportionate to that received during the current or
immediately preceding contract period from the member's employing
district, whichever amount is greater.
(e) (1) If the Commission on Professional
Competence determines that the employee should be dismissed or
suspended, the governing board and the employee shall share equally
the expenses of the hearing,
including the cost of the administrative law judge. The
state shall pay any costs incurred under paragraph (2) of subdivision
(d), the reasonable expenses, as determined by the administrative
law judge, of the member selected by the governing board and the
member selected by the employee, including, but not limited to,
payments or obligations incurred for travel, meals, and lodging, and
the cost of the substitute or substitutes, if any, for the member
selected by the governing board and the member selected by the
employee. The Controller shall pay all claims submitted pursuant to
this paragraph from the General Fund, and may prescribe reasonable
rules, regulations, and forms for the submission of the claims. The
employee and the governing board shall pay their own
attorney attorney's fees.
(2) If the Commission on Professional
Competence determines that the employee should not be dismissed or
suspended, the governing board shall pay the expenses of the hearing,
including the cost of the administrative law judge, any costs
incurred under paragraph (2) of subdivision (d), the reasonable
expenses, as determined by the administrative law judge, of the
member selected by the governing board and the member selected by the
employee, including, but not limited to, payments or obligations
incurred for travel, meals, and lodging, the cost of the substitute
or substitutes, if any, for the member selected by the governing
board and the member selected by the employee, and reasonable
attorney attorney's fees incurred by
the employee.
(3) As used in this section, "reasonable
expenses" shall not be deemed "compensation" within the meaning of
subdivision (d).
(4) If either the governing board or the
employee petitions a court of competent jurisdiction for review of
the decision of the commission, the payment of expenses to members of
the commission required by this subdivision shall not be stayed.
(5) (A) If the
decision of the commission is finally reversed or vacated by a court
of competent jurisdiction, then either the state,
having paid the commission members' expenses, shall be entitled to
reimbursement from the governing board for those expenses, or the
governing board, having paid the expenses, shall be entitled to
reimbursement from the state.
(B) Additionally, either the employee,
having paid a portion of the expenses of the hearing, including the
cost of the administrative law judge, shall be entitled to
reimbursement from the governing board for the expenses, or the
governing board, having paid its portion and the employee's portion
of the expenses of the hearing, including the cost of the
administrative law judge, shall be entitled to reimbursement from the
employee for that portion of the expenses.
(f) The hearing provided for in this section shall be conducted in
a place selected by agreement among the members of the commission.
In the absence of agreement, the place shall be selected by the
administrative law judge.
SEC. 108. Section 45127 of the Education Code is amended to read:
45127. (a) The workweek of a classified
employee, as defined in Section 45103 or Section
45256, shall be 40 hours. The workday shall be eight hours. These
provisions do not restrict the extension of a regular workday or
workweek on an overtime basis when such if it
is necessary to carry on the business of the district.
Nothing in this This section
shall be deemed to does not bar the district
from establishing a workday of less than eight hours or a workweek of
less than 40 hours for all or any of its classified positions.
(b) Notwithstanding the provisions
of this section and Section 45128, a governing board may,
with the approval of the personnel commission, where applicable,
exempt specific classes of positions from compensation for overtime
in excess of eight hours in one day, provided that hours worked in
excess of 40 in a calendar week shall be compensated on an overtime
basis. Such This exemption
shall be applied applies only to those classes
which that the governing board and
personnel commission, where applicable, specifically find to be
a subject to fluctuations in daily working hours
not susceptible to administrative control, such as security patrol
and recreation classes, but shall not include food service and
transportation classes.
(c) This section shall apply
applies to districts that have adopted the merit
system in the same manner and effect as if it were a part of Article
6 (commencing with Section 45240) of this chapter
.
SEC. 109. Section 45168.5 of the Education Code is amended to
read:
45168.5. (a) (1) Notwithstanding any other law, the governing
board of a school district that collects or deducts dues, agency
fees, fair share fees, or any other fee or amount of money from the
salary of a classified employee for the purpose of transmitting the
money to an employee organization shall transmit the money to the
employee organization within 15 days of issuing the paycheck
containing the deduction to the employee.
(2) Notwithstanding paragraph (1), if the governing board of a
school district with a pupil population exceeding 400,000, collects
or deducts dues, agency fees, fair share fees, or any other fee or
amount of money from the salary of a classified employee for the
purpose of transmitting the money to an employee organization, the
governing board shall transmit the money to the employee organization
within 15 working days of issuing the paycheck containing the
deduction to the employee.
(b) (1) This section does not limit the right of an employee
organization or affected employee to sue for a failure of the
employer to transmit dues or fees pursuant to this section.
(2) In an action brought for a violation of subdivision (a), the
court may award reasonable attorney attorney'
s fees and costs to the prevailing party if any party to the
action requests attorney attorney's
fees and costs.
(c) This section applies to districts that have adopted the merit
system in the same manner and effect as if it were a part of Article
6 (commencing with Section 45240).
(d) A school district or county office of education may not
request, and the State Board of Education
state board may not grant, a waiver of compliance with this
section , .
SEC. 110. Section 47610 of the Education Code is amended to read:
47610. A charter school shall comply with this part and all of
the provisions set forth in its charter, but is otherwise exempt from
the laws governing school districts, except all of the following:
(a) As specified in Section 47611.
(b) As specified in Section 41365.
(c) All laws establishing minimum age for public school
attendance.
(d) The California Building Standards Code (Part 2
(commencing with Section 101) of Title 24 of the California Code of
Regulations), as adopted and enforced by the local building
enforcement agency with jurisdiction over the area in which the
charter school is located.
(e) Charter school facilities shall comply with subdivision (d) by
January 1, 2007.
SEC. 111. Section 47610.5 of the Education Code is amended to
read:
47610.5. A charter school facility is exempt from the
requirements of subdivision (d) of Section 47610 if either of the
following conditions apply:
(a) The charter school facility complies with Article 3
(commencing with Section 17280) and Article 6 (commencing with
Section 17365) of Chapter 3 of Part 10.5.
(b) The charter school facility is exclusively owned or controlled
by an entity that is not subject to the California Building
Standards Code, including, but not limited to, the federal
government.
SEC. 112. Section 47660 of the Education Code is amended to read:
47660. (a) For purposes of computing eligibility for, and
entitlements to, general purpose funding and operational funding for
categorical programs, the enrollment and average daily attendance
reported by a sponsoring local educational agency shall exclude the
enrollment and attendance of pupils in its charter schools funded
pursuant to this chapter.
(b) (1) Notwithstanding subdivision (a), and
commencing with the 2005-06 fiscal year, for purposes of computing
eligibility for, and entitlements to, revenue limit funding, the
average daily attendance of a unified school district, other than a
unified school district that has converted all of its schools to
charter status pursuant to Section 47606, shall include all
attendance of pupils who reside in the unified school district and
who would otherwise have been eligible to attend a noncharter school
of the school district, if the school district was a basic aid school
district in the prior fiscal year, or if the pupils reside in the
unified school district and attended a charter school of a school
district that converted to charter status on or after to July 1,
2005. Only the attendance of the pupils described by this paragraph
shall be included in the calculation made pursuant to paragraph (7)
of subdivision (h) of Section 42238.
(2) Notwithstanding subdivision (a), for the 2005-06 fiscal year
only, for purposes of computing eligibility for, and entitlements to,
revenue limit funding, the average daily attendance of a unified
school district, other than a unified school district that has
converted all of its schools to charter status pursuant to Section
47606 and is operating them as charter schools, shall include all
attendance of pupils who reside in the unified school district and
who would otherwise have been eligible to attend a noncharter school
of the unified school district if the pupils attended a charter
school established in the unified school district prior to July 1,
2005. Only the attendance of pupils described by this paragraph shall
be included in the calculation made pursuant to Section 42241.3.
(c) Commencing with the 2005-06 fiscal year, for the attendance of
pupils specified in subdivision (b), the general-purpose entitlement
for a charter school that is established through the conversion of
an existing public school within a unified school district on or
after July 1, 2005, shall be determined using the following amount of
general-purpose funding per unit of average daily attendance, in
lieu of the amount calculated pursuant to subdivision (a) of Section
47633:
(1) The amount of the actual unrestricted revenues expended per
unit of average daily attendance for that school in the year prior to
its conversion to, and operation as, a charter school, adjusted for
the base revenue limit per pupil inflation increase adjustment set
forth in Section 42238.1, if this adjustment is provided, and also
adjusted for equalization, deficit reduction, and other state
general-purpose increases, if any, provided for unified school
districts in the year of conversion to and operation as a charter
school.
(2) For a subsequent fiscal year, the general-purpose entitlement
shall be determined based on the amount per unit of average daily
attendance allocated in the prior fiscal year adjusted for the base
revenue limit per pupil inflation increase adjustment set forth in
Section 42238.1, if this adjustment is provided, and also adjusted
for equalization, deficit reduction, and other state general-purpose
increases, if any, provided for unified school districts in that
fiscal year.
(d) Commencing with the 2005-06 fiscal year, the general-purpose
funding per unit of average daily attendance specified for a unified
school district for purposes of paragraph (7) of subdivision (h) of
Section 42238 shall be deemed to be the amount computed pursuant to
subdivision (c).
(e) A unified school district that is the chartering authority of
a charter school that is subject to the provisions of
subdivision (c) shall certify to the Superintendent the
amount specified in paragraph (1) of subdivision (c) prior to the
approval of the charter petition by the governing board of the school
district. This amount may be based on estimates of the unrestricted
revenues expended in the fiscal year prior to the school's conversion
to charter status and the school's operation as a charter school,
provided that the amount is recertified when the actual data becomes
available.
(f) For the purposes of this section, "basic aid school district"
means a school district that does not receive from the state an
apportionment of state funds pursuant to subdivision (h) of Section
42238.
(g) A school district may use the existing Standardized Account
Code Structure and cost allocation methods, if appropriate, for an
accounting of the actual unrestricted revenues expended in support of
a school pursuant to subdivision (c).
SEC. 113. Section 49030 of the Education Code is amended to read:
49030. (a) Sixty days after the posting of the United States
Anti-Doping Agency Guide to Prohibited Substances and
Prohibited Methods of Doping on the Internet Web site of
the department pursuant to subdivision (b), dietary supplements, as
defined by subsection (ff) of Section 321 of Title 21 of the United
States Code, that include any of the following substances, are
prohibited from being used by a pupil participating in
interscholastic high school sports:
(1) Synephrine.
(2) A prohibited substance enumerated by the United States
Anti-Doping Agency Guide to Prohibited Substances and Prohibited
Methods of Doping.
(b) The State Department of Health Services shall provide the
State Department of Education with the United States Anti-Doping
Agency Guide to Prohibited Substances and Prohibited Methods of
Doping, on or before March 30, 2006. Upon receipt of the guide, the
State Department of Education shall notify each school district that
serves pupils in grades 9 to 12, inclusive, that the guide has been
completed and shall post the guide on its Internet Web
site. The State Department of Health Services shall annually notify
the State Department of Education of any amendments to the guide for
the following school year. For an amendment to be applicable for the
ensuing school year, the State Department of Health Services shall
notify the State Department of Education as to that amendment no
later than the March 30 immediately preceding the school year to
which the amendment is to be applicable. Upon receipt of this notice,
the State Department of Education shall notify each school district
that serves pupils in grades 9 to 12, inclusive, that the guide has
been amended and shall post the amended guide on its Internet
Web site. An The amendment
become becomes effective until
60 days after the department posts the amended guide on
its Internet Web site.
SEC. 114. Section 49434 of the Education Code is amended to read:
49434. (a) The Superintendent may monitor school districts
of the statefor for compliance with
this article as set forth in subdivision (b).
(b) Each school district monitored pursuant to subdivision (a)
shall report to the Superintendent in the coordinated review effort
regarding the extent to which it has complied with this article.
(c) A school district that the Superintendent findsto
finds to be noncompliant with the mandatory
provisions of this article shall adopt, and provide to the
Superintendent of , Superintendent, a corrective
action plan that sets forth the actions to be taken by the school
district to ensure that the school district will be in full
compliance, within a time agreed upon between the Superintendent and
the school district that does not exceed one year. Text --
Page 5.
SEC. 115. Section 49561 of the Education Code is amended to read:
49561. (a) The department shall create a computerized
data-matching system using existing databases from the department and
the State Department of Health Services to directly certify
recipients of the Food Stamp Program, the California Work Opportunity
and Responsibility to Kids Act program (the
CalWORKs program) (Ch. 2 (commencing with Sec. 11200), Pt.
3, Div. 9, W.& I.C.) program (Chapter 2 (commencing
with Section 11200) of Part 3 of Division 9 of the Welfare and
Institutions Code)) , and other programs authorized for direct
certification under federal law, for enrollment in the National
School Lunch and School Breakfast Programs. This subdivision does not
include Medi-Cal benefits within the criteria for direct
certification specified in the Child Nutrition and WIC
Reauthorization Act of 2004 (P.L. 108-265).
(b) The department shall design a process using an existing agency
database that will conform with data from the State Department of
Health Services to meet the direct certification requirements of the
National School Lunch Act, as amended, pursuant to Chapter 13
(commencing with Section 1751) of Title 42 of the United States Code,
and the Child Nutrition Act of 1966, as amended, pursuant to Chapter
13A (commencing with Section 1771) of Title 42 of the United States
Code.
(c) The department shall design a process using computerized data
pursuant to subdivision (a) that will maximize enrollment in school
meal programs and improve program integrity while ensuring that pupil
privacy safeguards remain in place.
(d) Each state agency identified in subdivision (a) is responsible
for the maintenance and protection of data received by their
respective agency. The state agency that possesses the data shall
follow privacy and confidentiality procedures consistent with all
applicable state and federal law.
(e) The department shall determine the availability of and request
or apply for, as appropriate, federal funds to assist the state in
implementing new direct certification requirements mandated by
federal law.
(f) This section shall become operative upon receipt of federal
funds to assist the state in implementing new direct certification
requirements mandated by federal law.
SEC. 116. Section 49565.2 of the Education Code is amended to
read:
49565.2. (a) The funds
described in subdivision (a) of Section 49565.1 may be combined with
other funding sources to ensure that at least one serving per day of
nutritious fruits or vegetables, or both, is provided pursuant to the
pilot program.
SEC. 117. Section 49565.4 of the Education Code is amended to
read:
49565.4. (a) School
districts and charter schools that do not operate school breakfast
programs are encouraged to apply for funding to establish breakfast
programs using funds appropriated for this purpose in the annual
Budget Act.
SEC. 118. Section 52052 of the Education Code is amended to read:
52052. (a) (1) The Superintendent, with approval of the
State Board of Education state board , shall
develop an Academic Performance Index (API), to measure the
performance of schools, especially the academic performance of
pupils.
(2) A school shall demonstrate comparable improvement in academic
achievement as measured by the API by all numerically significant
pupil subgroups at the school, including:
(A) Ethnic subgroups.
(B) Socioeconomically disadvantaged pupils.
(C) English language learners.
(D) Pupils with disabilities.
(3) (A) For purposes of this section, a numerically significant
pupil subgroup is one that meets both of the following criteria:
(i) The subgroup consists of at least 50 pupils each of whom has a
valid test score.
(ii) The subgroup constitutes at least 15 percent of a school's
total population of pupils who have valid test scores.
(B) If a subgroup does not constitute 15 percent of the school's
total population of pupils with valid test scores, the subgroup may
constitute a numerically significant pupil subgroup if it has at
least 100 valid test scores.
(C) For a school with an API score that is based on no fewer than
11 and no more than 99 pupils with valid test scores, numerically
significant subgroups shall be defined by the Superintendent, with
approval by the State Board of Education
state board .
(4) The API shall consist of a variety of indicators currently
reported to the department, including, but not limited to, the
results of the achievement test administered pursuant to Section
60640, attendance rates for pupils in elementary schools, middle
schools, and secondary schools, and the graduation rates for pupils
in secondary schools.
(A) The pupil data collected for the API that comes from the
achievement test administered pursuant to Sections 60640 and 60644
and the high school exit examination administered pursuant to Section
60851, when fully implemented, shall be disaggregated by special
education status, English language learners, socioeconomic status,
gender , and ethnic group. Only the test scores of pupils
who were counted as part of the enrollment in the annual California
Basic Education Data System's data collection for the current fiscal
year and who were continuously enrolled during that year may be
included in the test result reports in the school's API. Results of
the achievement test and other tests specified in subdivision (b)
shall constitute at least 60 percent of the value of the index.
(B) Before including high school graduation rates and attendance
rates in the index, the Superintendent shall determine the extent to
which the data are currently reported to the state and the accuracy
of the data.
(b) Pupil scores from the following tests, when available and when
found to be valid and reliable for this purpose, shall be
incorporated into the API:
(1) The assessment of the applied academic skills matrix test
developed pursuant to Section 60604.
(2) The nationally normed test designated pursuant to Section
60642.
(3) The standards-based achievement tests provided for in Section
60642.5.
(4) The high school exit examination.
(c) Based on the API, the Superintendent shall develop, and the
State Board of Education state board
shall adopt, expected annual percentage growth targets for all
schools based on their API baseline score from the previous year.
Schools are expected to meet these growth targets through effective
allocation of available resources. For schools below the statewide
API performance target adopted by the State Board of
Education state board pursuant to subdivision
(d), the minimum annual percentage growth target shall be 5 percent
of the difference between a school's actual API score and the
statewide API performance target, or one API point, whichever is
greater. Schools at or above the statewide API performance target
shall have, as their growth target, maintenance of their API score
above the statewide API performance target. However, the
State Board of Education state board may set
differential growth targets based on grade level of instruction and
may set higher growth targets for the lowest performing schools
because they have the greatest room for improvement. To meet its
growth target, a school shall demonstrate that the annual growth in
its API is equal to or more than its schoolwide annual percentage
growth target and that all numerically significant pupil subgroups,
as defined in subdivision (a), are making comparable improvement.
(d) Upon adoption of state performance standards by the
State Board of Education state board , the
Superintendent shall recommend, and the State Board of
Education state board shall adopt, a statewide
API performance target that includes consideration of performance
standards and represents the proficiency level required to meet the
state performance target. When the API is fully developed, schools
must, at a minimum, meet their annual API growth targets to be
eligible for the Governor's Performance Award Program as set forth in
Section 52057. The State Board of Education
state board may establish additional criteria that schools must
meet to be eligible for the Governor's Performance Award Program.
(e) The API shall be used for both of the following:
(1) Measuring the progress of schools selected for participation
in the Immediate Intervention/Underperforming Schools Program
pursuant to Section 52053.
(2) Ranking all public schools in the state for the purpose of the
High Achieving/Improving Schools Program pursuant to Section 52056.
(f) (1) A school with 11 to 99 pupils with valid test scores shall
receive an API score with an asterisk that indicates less
statistical certainty than API scores based on 100 or more test
scores.
(2) A school shall annually receive an API score, unless the
Superintendent determines that an API score would be an invalid
measure of the school's performance for one or more of the following
reasons:
(A) Irregularities in testing procedures occurred.
(B) The data used to calculate the school's API score are not
representative of the pupil population at the school.
(C) Significant demographic changes in the pupil population render
year-to-year comparisons of pupil performance invalid.
(D) The department discovers or receives information indicating
that the integrity of the API score has been compromised.
(E) Insufficient pupil participation in the assessments included
in the API.
(3) If a school has less than 100 pupils with valid test scores,
the calculation of the API or adequate yearly progress pursuant to
the federal No Child Left Behind Act of 2001 (20 U.S.C. Sec. 6301 et
seq.) and federal regulations may be calculated over more than one
annual administration of the tests administered pursuant to Sections
60640 and 60644 and the high school exit exam
examination administered pursuant to Section 60851, consistent
with regulations adopted by the State Board of Education
state board .
(g) Only schools with 100 or more test scores contributing to the
API may be included in the API rankings.
(h) The Superintendent, with the approval of the State
Board of Education state board , shall develop
an alternative accountability system for schools under the
jurisdiction of a county board of education or a county
superintendent of schools, community day schools, nonpublic,
nonsectarian schools pursuant to Section 56366, and alternative
schools serving high-risk pupils, including continuation high schools
and opportunity schools. Schools in the alternative accountability
system may receive an API score, but shall not be included in the API
rankings.
SEC. 119. Section 52055.57 of the Education Code is amended to
read:
52055.57. (a) (1) Any provisions that are applicable to local
educational agencies under this section are for the purpose of
implementing federal requirements under the federal No Child Left
Behind Act of 2001 (20 U.S.C. Sec. 6301 et seq.). The satisfaction
of these criteria by local educational agencies that choose to
participate under this article shall be a condition of receiving
funds pursuant to this section.
(2) The department shall identify local educational agencies that
are in danger of being identified within two years as program
improvement local educational agencies under the federal No Child
Left Behind Act of 2001 (20 U.S.C. Sec. 6301 et seq.), and shall
notify those local educational agencies, in writing, of this status
and provide those local educational agencies with research-based
criteria to conduct a voluntary self-assessment.
(3) The self-assessment shall identify deficiencies within the
operations of the local educational agency, and the programs and
services of the local educational agency.
(4) A local educational agency identified pursuant to paragraph
(2) is encouraged to revise its local educational agency plan based
on the results of the self-assessment.
(5) The program described in this subdivision shall be referred to
as the "Early Warning Program."
(b) (1) A local educational agency identified as a program
improvement local educational agency under the federal No Child Left
Behind Act of 2001 (20 U.S.C. Sec. 6301 et seq.) shall do all of the
following:
(A) Conduct a self-assessment using materials and criteria based
on current research and provided by the department.
(B) No later than 90 days after a local educational agency becomes
identified for program improvement, contract with a county office of
education or another external entity after working with the county
superintendent of schools, for all both
of the following purposes:
(i) Verifying the fundamental teaching and learning needs in the
schools of that local educational agency as determined by the local
educational agency self-analysis, and identifying the specific
academic problems of low-achieving pupils, including a determination
of why the prior plan of the local educational agency failed to bring
about increased pupil academic achievement.
(ii) Ensuring that the local educational agency receives intensive
support and expertise to implement local educational agency reform
initiatives in the revised local educational agency plan as required
by the federal No Child Left Behind Act of 2001 (20 U.S.C. Sec. 6301
et seq.).
(C) Revise and expeditiously implement the local educational
agency plan of the local educational agency to reflect the findings
of the verified self-assessment.
(D) After working with the county superintendent of schools or an
external verifier, contract with an external provider to provide
support and implement recommendations to assist the local educational
agency in resolving shortcomings identified in the verified
self-assessment.
(2) (A) Subject to the availability of funds in the annual Budget
Act for this purpose, a local educational agency described in
paragraph (1) may annually receive fifty thousand dollars ($50,000),
and plus ten thousand dollars ($10,000)
for each school that is supported by federal funds pursuant to Title
I of the federal No Child Left Behind Act of 2001 (20 U.S.C. Sec.
6301 et seq.) within the local educational agency , for
the purpose of fulfilling the requirements of this subdivision.
(B) Subject to the availability of funds appropriated in the
annual Budget Act for this purpose, a local educational agency
identified as a program improvement local educational agency during
the 2005-06 fiscal year, shall receive priority for funding based
upon the performance of the socioeconomically disadvantaged subgroup
of the local educational agency on the Academic Performance Index.
Priority for funding shall be provided to the lowest performing local
educational agencies that are identified as program improvement
local educational agencies. It is the intent of the Legislature that
funds apportioned pursuant to this paragraph be used to support
activities identified in paragraph (1).
(C) It is the intent of the Legislature that a local educational
agency identified as a program improvement local educational agency
receive no more than two years of funding pursuant to this paragraph.
(c) (1) A local educational agency that has been identified for
corrective action under the federal No Child Left Behind Act of 2001
(20 U.S.C. Sec. 6301 et seq.), shall be subject to one or more of the
following sanctions as recommended by the Superintendent and
approved by the state board:
(A) Replacing local educational agency personnel who are relevant
to the failure to make adequate yearly progress.
(B) Removing schools from the jurisdiction of the local
educational agency and establishing alternative arrangements for the
governance and supervision of those schools.
(C) Appointing, by the state board, a receiver or trustee, to
administer the affairs of the local educational agency in place of
the county superintendent of schools and the governing board.
(D) Abolishing or restructuring the local educational agency.
(E) Authorizing pupils to transfer from a school operated by the
local educational agency to a higher performing school operated by
another local educational agency, and providing those pupils with
transportation to those schools, in conjunction with carrying out not
less than one additional action described under this paragraph.
(F) Instituting and fully implementing a new curriculum that is
based on state academic content and achievement standards, including
providing appropriate professional development based on
scientifically based research for all relevant staff, that offers
substantial promise of improving educational achievement for
high-priority pupils.
(G) Deferring programmatic funds or reducing administrative funds.
(2) In addition to the sanctions prescribed by paragraph (1), the
Superintendent may recommend, and the state board may approve, the
requirement that a local educational agency contract with a district
assistance and intervention team to aid a local educational agency.
(3) Subject to the availability of funds in the annual Budget Act
for this purpose, if the State Board of Education
state board requires a local educational agency to
contract with a district assistance and intervention team pursuant to
paragraph (2), the local educational agency may annually receive
fifty thousand dollars ($50,000), plus ten thousand dollars ($10,000)
for each school that is supported by federal funds pursuant to Title
I of the federal No Child Left Behind Act of 2001 (20 U.S.C. Sec.
6301 et seq.) within the local educational agency, for no more than
two years, for the purpose of contracting with and implementing the
recommendations of the district assistance and intervention team.
(4) Not later than January 31, 2006, the Superintendent shall
develop and the State Board of Education
state board shall approve, standards and criteria to be applied
by a district assistance and intervention team in carrying out their
duties. The standards and criteria shall include all of the
following areas:
(A) Governance.
(B) Alignment of curriculum, instruction, and assessments to state
standards.
(C) Fiscal operations.
(D) Parent and community involvement.
(E) Human resources.
(F) Data systems and achievement monitoring.
(G) Professional development.
(d) A local educational agency that has received a sanction under
subdivision (c) and has not exited program improvement under the
federal No Child Left Behind Act of 2001 (20 U.S.C. Sec. 6301 et
seq.) shall appear before the state board within three years to
review the progress of the local educational agency. Upon hearing
testimony and reviewing written data from the local educational
agency and the district assistance and intervention team or county
superintendent of schools, the Superintendent shall recommend, and
the state board may approve, an alternative sanction under
subdivision (c), or may take any appropriate action.
(e) Subject to the availability of funds in the annual Budget Act
for this purpose, a local educational agency that is not identified
as a program improvement local educational agency under the federal
No Child Left Behind Act of 2001 (20 U.S.C. Sec. 6301 et seq.) may
annually receive up to fifteen thousand dollars ($15,000) per school
identified as a program improvement school for the purposes of
supporting schools identified as program improvement schools in the
local educational agency and determining barriers to improved pupil
academic achievement. That local educational agency shall receive no
less than forty thousand dollars ($40,000) and no more than one
million five hundred thousand dollars ($1,500,000) for those
purposes. The Superintendent shall compile a list that ranks each
local educational agency based on the number of, and percentage of,
schools identified as program improvement schools and shall provide
this funding to local educational agencies equally from each list
until all funds appropriated for this purpose are depleted. These
funds shall be provided for no more than three years.
(f) If there are more local educational agencies that qualify to
receive funds under subdivisions (b), (c), and (e) than the amount
appropriated for these purposes, the Superintendent may redirect
funding for the purposes of subdivision (b).
(g) For purposes of this article, "local educational agency" means
a school district, county office of education, or charter school
that elects to receive its funding directly pursuant to Section
47651, and that provides public educational services to pupils in
kindergarten or any of grades 1 to 12, inclusive.
(h) For purposes of this section, a "stakeholder" is, but is not
necessarily limited to, any of the following:
(1) A parent of a child attending a school within the jurisdiction
of the local educational agency.
(2) A community partner of the local educational agency.
(3) An employee of the local educational agency, as selected by
the bargaining unit.
(i) A local educational agency shall not receive funds pursuant to
subdivision (b), (c), or (e) if it is initially identified for
program improvement or prevention after July 1, 2009.
SEC. 120. Section 52055.605 of the Education Code is amended to
read:
52055.605. (a) The Superintendent, with the approval of the
State Board of Education state board ,
shall identify schools ranked in deciles 1 to 5, inclusive, on the
Academic Performance Index (API).
(b) The Superintendent shall invite schools identified pursuant to
subdivision (a) to participate in the High Priority Schools Grant
Program. Notwithstanding subdivision (h) of Section 52053, in order
to be eligible for funding from the High Priority Schools Grant
Program, a school shall also participate in the Immediate
Intervention/Underperforming Schools Program. A school participating
in both programs may elect to submit only one application and one
plan for both programs. A school participating in the Immediate
Intervention/Underperforming Schools Program before the date of the
enactment of the act adding this section
Chapter 749 of the Statutes of 2001 is also eligible for
participation in the High Priority Schools Grant Program.
(c) Notwithstanding any other provision of law, and if funds are
available for this purpose, the Superintendent shall invite a second
cohort of schools identified pursuant to subdivision (a) to
participate in the High Priority Schools Grant Program beginning in
the 2005-06 fiscal year. In order to be eligible for funding pursuant
to this section, these schools shall not be required to also
participate in the Immediate Intervention/Underperforming Schools
Grant Program.
(d) First priority for participation in the High Priority Schools
Grant Program shall be given to schools ranked on the API in decile
1. Second priority shall be given to schools in decile 2. Third
priority shall be given to schools in decile 3. Fourth priority shall
be given to schools in decile 4. Fifth priority shall be given to
schools in decile 5. Within each decile, priority shall be given to
the lowest ranked schools. Schools that are receiving or have
received funding pursuant to Section 52053, 52054.5, or 52055.600 are
ineligible to participate in a second cohort of schools funded
pursuant to subdivision (c).
(e) Notwithstanding any other provision of law, and if funds are
available for this purpose, the number of schools within the
designated cohorts of the Immediate Intervention/Underperforming
Schools Program pursuant to Section 52053 may exceed the maximum
numbers specified in that section in order to participate in the
program established pursuant to this article.
(f) If a school ranked in decile 1 of the API completes the action
plan required as part of the application to participate in the
federal Comprehensive School Reform Demonstration Program (P.L.
105-78), but there are insufficient funds to allow that school to
participate in that program, so long as the action plan meets the
requirements of subdivisions (d) and (e) of Section 52054, that
school shall be automatically approved to the extent funding is
available for participation in the Immediate
Intervention/Underperforming Schools Program and shall be deemed to
have complied with the requirements of Section 52054.
(g) The State Board of Education state
board may allow continuation high schools to apply for and
receive funding pursuant to this article if those continuation high
schools report pupil performance that is equivalent to that of high
schools ranked in deciles 1 and 2 on the API and the board determines
that the state will be able to adequately determine growth in pupil
performance in a valid and reliable manner for the purpose of
accountability pursuant to this article. The State Board of
Education state board may establish a limit on
the number of continuation high schools that may be funded to reflect
their proportion of high-priority pupils in grades 9 to 12,
inclusive, and may adopt criteria limiting the eligibility for
funding, pursuant to this article, of continuation high schools with
a high level of per pupil funding from the continuation high school
revenue limit add-on.
SEC. 121. 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 be
required to adopt all of the listed options as a condition of funding
under the terms of this section. 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) (1) As a condition of the receipt of funds, a school action
plan shall include each of the following essential components:
(A) Pupil literacy and achievement.
(B) Quality of staff.
(C) Parental involvement.
(D) Facilities, curriculum, instructional materials, and support
services.
(2) As a condition of the receipt of funds, a school action plan
for a school initially applying to participate in the program on or
after the 2004-05 fiscal year, shall include each of the following
essential components:
(A) Pupil literacy and achievement.
(B) Quality of staff, including highly qualified teachers, as
required by the federal No Child Left Behind Act of 2001 (20 U.S.C.
Sec. 6301 et seq.), and appropriately credentialed teachers for
English learners.
(C) Parental involvement.
(D) Facilities maintained in good repair as specified in Sections
17014, 17032.5, 17070.75, and 17089, curriculum, instructional
materials that are, at a minimum, consistent with the requirements of
Section 60119, 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 state board 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 state board
, 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 state board 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 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 state board ,
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. 122. Section 52124 of the Education Code, as amended by
Section 46 of Chapter 22 of the Statutes of 2005, is amended to read:
52124. (a) A school district that implements a class size
reduction program pursuant to this chapter is subject to this
section.
(b) A school district may establish a program to reduce class size
in kindergarten and grades 1 to 3, inclusive, and that program shall
be implemented at each schoolsite according to the following
priorities:
(1) If only one grade level is reduced at a schoolsite, the grade
level shall be grade 1.
(2) If only two grade levels are reduced at a schoolsite, the
grade levels shall be grades 1 and 2.
(3) If three grade levels are reduced at a schoolsite, then those
grade levels shall be kindergarten and grades 1 and 2 or grades
1 to 3, inclusive. Priority
shall be given to the reduction of class sizes in grades 1 and 2
before the class sizes of kindergarten or grade 3 are reduced.
(4) If four grade levels are reduced at a schoolsite, then those
grade levels shall be kindergarten and grades 1 to 3, inclusive.
First priority shall be given to the reduction of class sizes in
grades 1 and 2, and second priority shall be given to the reduction
of class size in kindergarten and grade 3. This paragraph shall be
operative only in those fiscal years for which funds are appropriated
expressly for the purposes of this paragraph.
(c) It is the intent of the Legislature to continue to permit the
use of combination classes of more than one grade level to the extent
that school districts are otherwise permitted to use that
instructional strategy. However, any school district that uses a
combination class in any class for which funding is received pursuant
to this chapter may not claim funding pursuant to this chapter if
the total number of pupils in the combination class, regardless of
grade level, exceeds 20 pupils per certificated teacher assigned to
provide direct instructional services.
(d) The governing board of a school district shall certify to the
Superintendent of Public Instruction that it has
met the requirements of this section in implementing its class size
reduction program. If a school district receives funding pursuant to
this chapter but has not implemented its class size reduction program
for all grades and classes for which it received funding pursuant to
this chapter, the Superintendent of Public Instruction
shall notify the Controller and the school district in
writing and the Controller shall deduct an amount equal to the amount
received by the school district under this chapter for each class
that the school district failed to reduce to a class size of 20 or
fewer pupils from the next principal apportionment or apportionments
of state funds to the district, other than basic aid apportionments
required by Section 6 of Article IX of the California Constitution.
(e) Except for a school district participating pursuant to
subdivision (h) of Section 52122, the amount deducted pursuant to
subdivision (d) shall be adjusted as follows:
(1) Twenty percent of the amount to which the district would
otherwise be eligible for each class for which the annual enrollment
determined pursuant to Section 52124.5 is greater than or equal to
20.5 but less than 21.0.
(2) Forty percent of the amount to which the district would
otherwise be eligible for each class for which the annual average
enrollment determined pursuant to Section 52124.5 is greater than or
equal to 21.0 but less than 21.5.
(3) Eighty percent of the amount to which the district would
otherwise be eligible for each class for which the annual average
enrollment determined pursuant to Section 52124.5 is greater than or
equal to 21.5 but less than 21.9.
(4) The amount deducted pursuant to subdivision (d) for each class
for which the annual average enrollment determined pursuant to
Section 52141.5 is greater than or equal to 21.9 shall be the amount
of funding the district received for the class pursuant to this
chapter.
(f) Notwithstanding any other provision of this chapter, a school
district located in the County of Los Angeles, Riverside, San
Bernardino, San Diego, or Ventura may claim funding pursuant to this
chapter for the 2003-04 school year based on enrollment counts before
the October 2003 fires, in classes for which the class size
reduction program is implemented, if the following criteria are met:
(1) The school district submits to the Superintendent of
Public Instruction a "Request for Allowance of Attendance
because of Emergency Conditions" pursuant to Section 46392 and the
emergency conditions were caused by the October 2003 fires.
(2) The school district certifies that it suffered a loss of
enrollment in classes in which the class size reduction program is
implemented and this loss of enrollment is due to the October 2003
fires and would result in a decrease in funding that the district
receives pursuant to this chapter.
(g) This section shall be operative until July 1, 2009, and as of
January 1, 2010, is repealed, unless a later enacted statute deletes
or extend extends that date.
SEC. 123. Section 52165 of the Education Code is amended to read:
52165. Each pupil of limited English proficiency enrolled in the
California public school system in kindergarten through
grade and grades 1 to 12 , inclusive,
shall receive instruction in a language understandable to the pupil
which that recognizes the pupil's
primary language and teaches the pupil English.
(a) In kindergarten through grade and
grades 1 to 6 ; , inclusive, the
following shall apply:
(1) Whenever If the language census
indicates that any school of a school district has 10 or more pupils
of limited English proficiency with the same primary language in the
same grade level or 10 or more pupils of limited English proficiency
with the same primary language, in the same age group, and
in a multigrade or ungraded instructional environment, the school
district shall offer instruction pursuant to subdivision (a), (b), or
(c) of Section 52163 for such those
pupils at the school. Whenever If there
are pupils of limited English proficiency with different primary
languages who do not otherwise trigger
satisfy the program requirements of subdivision (a), (b), or
(c) of Section 52163 or of this subdivision, a language development
specialist defined in subdivision (b) may be used.
(2) Commencing September 1, 1981, and to
To the extent state or federal categorical funds are
available, the following services , as
described in this paragraph, are required for pupils of limited
English proficiency in concentrations of fewer than 10 per grade
level : When . If there are fewer than
10 pupils of limited English proficiency in the same grade, but at
least 20 such pupils of limited English
proficiency in the school with the same primary language, the
school district shall provide at least one certified
bilingual-crosscultural teacher or teachers on waiver as defined in
Section 52178 or 52178.5 and an individualized instruction program as
defined in subdivision (f) of Section 52163 for such
those pupils at the school. If the number of
pupils of limited English proficiency in the school exceeds 45, the
district shall provide two such of those
teachers. These teachers may be used as resource teachers
, or team teachers or to provide
such any other services to pupils of
limited English proficiency as the district deems appropriate. These
teachers shall be different teachers than those required pursuant to
paragraph (1).
(b) The Legislature recognizes that in the past equal educational
opportunities have not been fully available to secondary pupils of
limited English proficiency. It is the intent of the Legislature to
encourage school districts to offer a language learning program
pursuant to subdivision (d) of Section 52163. Certified
bilingual-crosscultural teachers or, if no such
those teachers are not available, language
development specialists assisted by a bilingual aide shall be
qualified to provide instruction for such
those programs. Language development specialists shall be
formally trained and competent in the field of English language
learning, including second language acquisition and development,
structure of modern English, and basic principles of linguistics, and
shall meet the culture and methodology competencies established by
subdivisions (b) and (c) of Section 44253.5. The Commission for
Teacher Preparation and Licensing shall provide for the assessment of
language competencies specified herein in
this section and shall modify existing culture and methodology
competency for language development specialist to insure
ensure that they meet the crosscultural and
instructional methodologies for pupils being served by such
those teachers. A teachers
teacher of english English
to speakers of other languages certificate from a commission
approved commission -approved
teacher training institution of higher education which
that meets the criteria established by the
commission pursuant to Section 44253.5 shall be accepted in
lieu instead of the methodology requirement.
(c) In kindergarten and grades 1 through
to 12 , inclusive, pupils of limited English
proficiency who are not enrolled in a program described in
subdivision (a), (b), (c), or (d) of Section 52163, shall be
individually evaluated and shall receive educational services defined
in subdivision (e) or (f), as appropriate, of Section 52163.
Such These services shall be provided
in consultation with the pupil and the parent, parents, or guardian
of the pupil.
(d) As a part of its consolidated application for categorical
program funds, each district receiving such
those funds shall include a specific plan indicating the ways
in which the individual learning plans will meet the needs of pupils
of limited English proficiency. The plan shall describe all of the
following: (1)
(1) Procedures used in making the individual
evaluation. (2)
(2) The pupils' levels of English and
primary language proficiency and levels of educational performance.
(3)
(3) Instructional objectives and scope of
educational services to be provided. (4)
(4) Periodic evaluation procedures, using
objective criteria, to determine whether the instructional objectives
are being met.
SEC. 124. Section 52295.35 of the Education Code is amended to
read:
52295.35. (a) Applicants within each of the 11 California
Technology Assistance Project regions shall compete against other
applicants from that region. The amount of funding for grants
available to each region shall be determined based upon the
proportionate enrollment of pupils in grades 4 to 8, inclusive, in
eligible schools from that region, but a region shall not be
allocated less than five hundred thousand dollars ($500,000) or 2
percent of available grant funds, whichever amount is greater.
(b) If a region is allocated more funding than is needed for its
eligible applicants, the Superintendent may develop a policy to
ensure that all funding is distributed to other regions for their
eligible but unfunded applicants.
(c) Grants shall be awarded to an eligible school district for the
eligible school or schools specified in the program application. All
grant funds shall be spent in a manner consistent with the local
educational agency technology plan, pursuant to subdivision (a) of
Section 51871.5 and subdivision (a) of Section 2414 of Part D of
Title II of the No Child Left Behind Act of 2001 (Public Law
(P.L. 107-110), and the program application and
shall be used for the eligible school or schools specified in the
approved application.
(d) The initial one-time implementation grant for a school
selected to receive a grant shall be calculated based upon three
hundred dollars ($300) per pupil for pupils in grades 4 to 8,
inclusive. Upon recommendation from the department, the
State Board of Education state board may adopt
criteria that establish fixed minimum grant levels for a small
school.
(e) Subject to availability of federal funding appropriated for
competitive grants under Part D of Title II of the federal No Child
Left Behind Act of 2001 (Public Law (P.L.
107-110), any grant recipient that successfully completes the
initial grant shall receive an additional one-time grant of
forty-five dollars ($45) per pupil in grades 4 to 8, inclusive, at
the school or schools selected for funding. The purpose of this
funding shall be to continue implementation of the grant recipients'
approved technology plan in a manner consistent with the requirements
of Part D of Title II of the federal No Child Left Behind Act of
2001 (Public Law (P.L. 107-110),
including plans to sustain the use of technology as a tool in
improving teaching and pupil academic achievement once the grant
period ends.
(f) This section shall become operative July 1, 2005.
SEC. 125. Section 52740 of the Education Code is amended to read:
52740. (a) It is the intent of the
Legislature to provide accurate instructional materials to schools on
(a) the all of the following topics:
(1) The internment in the United
States of persons of Japanese origin and its impact on
Japanese-American citizens , (b) the .
(2) The Armenian genocide
, and (c) the .
(3) The World War II internment,
relocation, and restriction in the United States of persons of
Italian origin and its impact on the Italian American
Italian- American community.
(b) The Legislature finds and declares that
there are few films or videotapes available on the subjects of the
internment of persons of Japanese origin, the Armenian genocide, and
the World War II internment, relocation, and restriction of persons
of Italian origin, for teachers to use when teaching pupils about
these three devastating events. The shortage of available films or
videotapes on these subjects is especially true for the Armenian
genocide.
(c) The Legislature hereby finds and
declares that films and videotapes giving a historically accurate
depiction of the internment in the United States of persons of
Japanese origin during World War II, the Armenian genocide, and the
World War II internment, relocation, and restriction
ofpersons of persons of Italian origin, should
be made in order that pupils will recognize these events for the
horror they represented. The Legislature hereby encourages teachers
to use these films and videotapes as a resource in teaching pupils
about these three important historical events that are commonly
overlooked in today's school curriculum.
SEC. 126. Section 56441 of the Education Code is amended to read:
56441. The Legislature hereby finds and declares that early
education programs for individuals with exceptional needs between the
ages of three and five years, inclusive, that provide special
education and related services within the typical environment
appropriate for young children, and include active parent
involvement, may do the following:
(a) Significantly reduce the potential impact of any disabling
conditions.
(b) Produce substantial gains in physical development, cognitive
development, language and speech development, psychosocial
development, and self-help skills development.
(c) Help prevent the development of secondary disabling
conditions.
(d) Reduce family stresses.
(e) Reduce societal dependency and institutionalization.
(f) Reduce the need for special class placement in special
education programs once the children reach schoolage
a child reaches school age .
(g) Save substantial costs to society and our schools.
SEC. 127. Section 58407 of the Education Code is amended to read:
58407. The State Board of Education state
board may waive any provision of the Education Code
this code , with the exception of
Sections 15501 to 15518, inclusive Article 1
(commencing with Section 16500) , and Article 3 (commencing
with Section 39140) of Chapter 2 of Part 23 of Division 3 of
this title , which it deems is necessary to waive to
assure the success of the program authorized by this chapter.
SEC. 128. Section 58520 of the Education Code is amended to read:
58520. (a) This chapter
shall be known and may be cited as the Single Gender Academies Pilot
Program Act of 1996.
SEC. 129. Section 60200 of the Education Code is amended to read:
60200. The state board shall adopt basic instructional materials
for use in kindergarten and grades 1 to 8, inclusive, for governing
boards, subject to the following provisions:
(a) The state board shall adopt at least five basic instructional
materials for all applicable grade levels in each of the following
categories:
(1) Language arts, including, but not limited to, spelling and
reading.
(2) Mathematics.
(3) Science.
(4) Social science.
(5) Bilingual or bicultural subjects.
(6) Any other subject, discipline, or interdisciplinary areas for
which the state board determines the adoption of instructional
materials to be necessary or desirable.
(b) The state board shall adopt procedures for the submission of
basic instructional materials in order to comply with each of the
following:
(1) Instructional materials may be submitted for adoption in any
of the subject areas pursuant to paragraphs (1) to (5), inclusive, of
subdivision (a) not less than two times every six years and in any
of the subject areas pursuant to paragraph (6) of subdivision (a) not
less than two times every eight years. The state board shall ensure
that curriculum frameworks are reviewed and adopted in each subject
area consistent with the six- and eight-year submission cycles and
that the criteria for evaluating instructional materials developed
pursuant to subdivision (b) of Section 60204 are consistent with
subdivision (c). The state board may prescribe reasonable conditions
to restrict the resubmission of materials that have been previously
rejected if those resubmitted materials have no substantive changes.
(2) Submitted instructional materials shall be adopted or rejected
within six months of the submission date of the materials pursuant
to paragraph (1), unless the state board determines that a longer
period of time, not to exceed an additional three months, is
necessary due to the estimated volume or complexity of the materials
for that subject in that year, or due to other circumstances beyond
the reasonable control of the state board.
(c) In reviewing and adopting or recommending for adoption
submitted basic instructional materials, the state board shall use
the following criteria, and ensure that, in its judgment, the
submitted basic instructional materials meet all of the following
criteria:
(1) Are consistent with the criteria and the standards of quality
prescribed in the state board's adopted curriculum framework. In
making this determination, the state board shall consider both the
framework and the submitted instructional materials as a whole.
(2) Comply with the requirements of Sections 60040, 60041, 60042,
60043, 60044, 60048, 60200.5, and 60200.6, and the state board's
guidelines for social content.
(3) Are factually accurate and incorporate principles of
instruction reflective of current and confirmed research.
(4) Adequately cover the subject area for the grade level or
levels for which they are submitted.
(5) Do not contain materials, including illustrations, that
provide unnecessary exposure to a commercial brand name, product, or
corporate or company logo. Materials, including illustrations, that
contain a commercial brand name, product, or corporate or company
logo may not be used unless the state board determines
that the use of the commercial brand name, product, or corporate or
company logo is appropriate based on one of the following specific
findings:
(A) If text, the use of the commercial brand name, product, or
corporate or company logo in the instructional materials is necessary
for an educational purpose, as defined in the guidelines or
frameworks adopted by the State Board of Education
state board .
(B) If an illustration, the appearance of a commercial brand name,
product, or corporate or company logo in an illustration in
instructional materials is incidental to the general nature of the
illustration.
(6) Meet other criteria as are established by the state board as
being necessary to accomplish the intent of Section 7.5 of Article IX
of the California Constitution and of Section 1 of this act
Chapter 1181 of the Statutes of 1989 , provided
that the criteria are approved by resolution at the time the
resolution adopting the framework for the current adoption is
approved, or at least 30 months prior to the date that the materials
are to be approved for adoption.
(d) If basic instructional materials are rejected, the state board
shall provide a specific, written explanation of the reasons why the
submitted materials were not adopted, based upon one or more of the
criteria established under subdivision (c). In providing this
explanation, the state board may use, in whole or in part, materials
written by the commission or any other advisers to the state board.
(e) The state board may adopt fewer than five basic instructional
materials in each subject area for each grade level if either of the
following occurs:
(1) Fewer than five basic instructional materials are submitted.
(2) The state board specifically finds that fewer than five basic
instructional materials meet the criteria prescribed by paragraphs
(1) to (5), inclusive, of subdivision (c), or the materials fail to
meet the state board's adopted curriculum framework. If the state
board adopts fewer than five basic instructional materials in any
subject for any grade level, the state board shall conduct a review
of the degree to which the criteria and procedures used to evaluate
the submitted materials for that adoption were consistent with the
state board's adopted curriculum framework.
(f) Nothing in this This section
shall does not limit the authority of
the state board to adopt materials that are not basic instructional
materials.
(g) If a district board establishes to the satisfaction of the
state board that the state-adopted instructional materials do not
promote the maximum efficiency of pupil learning in the district, the
state board shall authorize that district governing board to use its
instructional materials allowances to purchase materials as
specified by the state board, in accordance with standards and
procedures established by the state board.
(h) Consistent with the quality criteria for the state board's
adopted curriculum framework, the state board shall prescribe
procedures to provide the most open and flexible materials submission
system and ensure that the adopted materials in each subject, taken
as a whole, provide for the educational needs of the diverse pupil
populations in the public schools, provide collections of
instructional materials that illustrate diverse points of view,
represent cultural pluralism, and provide a broad spectrum of
knowledge, information, and technology-based materials to meet the
goals of the program and the needs of pupils.
(i) Upon making an adoption, the state board shall make available
to listed publishers and manufacturers and all school interests a
listing of instructional materials, including the most current unit
cost of those materials as computed pursuant to existing law. Items
placed upon lists shall remain thereon, and be available for
procurement through the state's systems of financing, from the date
of the adoption of the item and until a date established by the state
board. The date established by the board for continuing items on
that list shall be the earlier of not more than six years from the
date of adoption for instructional materials pertaining to subject
areas designated in paragraphs (1) to (5), inclusive, of subdivision
(a), and not more than eight years from the date of adoption for
instructional materials pertaining to subject areas designated in
paragraph (6) of subdivision (a), or the date on which the state
board adopts instructional materials based upon a new or revised
curriculum framework. Lists of adopted materials shall be made
available by subject and grade level. The lists shall terminate and
shall no longer be effective on the date prescribed by the state
board pursuant to this subdivision.
(j) The state board may approve multiple lists of instructional
materials, without designating a grade or subject, and the state
board may designate more than one grade or subject whenever it
determines that a single subject designation or a single grade
designation would not promote the maximum efficiency of pupil
learning. Any materials so designated may be placed on single grade
or single subject lists, or multigrade or interdisciplinary lists, or
may be placed on separate lists including other materials with
similar grade or subject designations.
(k) A composite listing in the format of an order form may be used
to meet the requirements of this section.
(l) The lists maintained pursuant to this section shall not be
deemed to control the use period by any local district.
(m) The state board shall give publishers the opportunity to
modify instructional materials, in a manner provided for in
regulations adopted by the state board, if the state board finds that
the instructional materials do not comply with paragraph (5) of
subdivision (c).
(n) Nothing in this This
section shall be construed to does not
prohibit the publisher of instructional materials from including
whatever corporate name or logo on the instructional materials that
is necessary to provide basic information about the publisher, to
protect its copyright, or to identify third party
third- party sources of content.
(o) The state board may adopt regulations that provide for other
exceptions to this section, as determined by the board.
(p) The Superintendent of Public Instruction
shall develop, and the State Board of Education
state board shall adopt, guidelines to implement this
section.
SEC. 130. Section 66070 of the Education Code is amended to read:
66070. The Legislature finds and declares all
both of the following:
(a) The primary goal of every higher educational institution
should be to provide a collegiate experience which
that gives each student the skills of communication and
problemsolving, the ideas and principles underlying the major areas
of modern knowledge, the ability to consider critical issues
thoughtfully, the understanding that learning is a continuous
lifelong process, and the knowledge of democracy necessary for good
citizenship.
(b) To improve performance, educational institutions are
encouraged to use effective assessment mechanisms based on positive
reinforcement, incentives, and cooperation.
SEC. 131. Section 66406 of the Education Code is amended to read:
66406. (a) The Legislature finds and declares that the
production and pricing of college textbooks deserves a high level of
attention from educators and lawmakers because they impact the
quality and affordability of higher education.
(b) The State of California urges textbook publishers to do all of
the following:
(1) "Unbundle" the instruction
instructional materials to give students the option of buying
textbooks, CD-ROMs, and workbooks "a "a
la carte" or without additional materials.
(2) Provide all of the following information to faculty and
departments when they are considering what textbooks to order, and
post both of the following types of information on
publishers' Internet Web sites where it is easily
accessible:
(A) A list of all of the different products they sell,
including both bundled and unbundled options, and the net price of
each product.
(B) An explanation of how the newest edition is different from
previous editions.
(3) Give preference to paper or online supplements to current
editions rather than producing entirely new editions.
(4) Disclose to faculty the length of time they intend to produce
the current edition so that professors know how long they can use the
same book.
(5) Provide to faculty a free copy of each textbook selected by
faculty for use in the classroom for placement on reserve in the
campus library.
(c) The Trustees of the California State University and the Board
of Governors of the California Community Colleges shall, and the
Regents of the University of California are requested to, accomplish
all of the following:
(1) Work with the academic senates of each respective segment to
do all of the following:
(A) Encourage faculty to give consideration to the least costly
practices in assigning textbooks, varying by discipline, such as
adopting the least expensive edition when the educational content is
equal, and using a selected textbook as long as it is educationally
sound, as determined by the appropriate faculty.
(B) Encourage faculty to disclose both of the following to
students:
(i) How new editions of textbooks are different from the previous
editions.
(ii) The cost to students for textbooks selected for use in each
course.
(C) Review procedures for faculty to inform college and university
bookstores of textbook selections.
(D) Encourage faculty to work closely with publishers and college
and university bookstores in creating bundles and packages if they
are economically sound and deliver cost savings to students, and if
bundles and packages have been requested by faculty. Students should
have the option of purchasing textbooks and other instructional
materials that are "unbundled."
(2) Require college and university bookstores to work with the
academic senates of each respective campus to do both of the
following:
(A) Review issues relative to timelines and processes involved in
ordering and stocking selected textbooks.
(B) Work closely with faculty or publishers, or both, to create
bundles and packages that are economically sound and deliver cost
savings to students.
(3) Encourage college and university bookstores to disclose retail
textbook costs, on a per course basis, to faculty, and make this
information otherwise publicly available.
(4) Encourage campuses to provide as many forums for students to
have access to as many used books as possible, including, but not
necessarily limited to, all of the following:
(A) Implementing campus-sponsored textbook rental programs.
(B) Encouraging students to consider on-campus and online book
swaps so that students may buy and sell used books and set their own
prices.
(C) Encouraging students to consider student book lending
programs.
(D) Encouraging college and university bookstores that offer book
buyback programs to actively promote and publicize these programs.
(E) Encouraging the establishment of textbook rental programs and
any other appropriate approaches to providing high-quality materials
that are affordable to students.
(d) It is the intent of the Legislature to encourage private
colleges and universities to work with their respective academic
senates and to encourage faculty to consider practices in selecting
textbooks that will result in the lowest costs to students.
SEC. 132. Section 66609 of the Education Code is amended to read:
66609. (a) All state employees employed on
June 30, 1961, in carrying out functions transferred to the Trustees
of California State University by this chapter, except persons
employed by the Director of Education in the Division of State
Colleges and Teacher Education of the State Department of
Education, are transferred to the California State University.
(b) Nonacademic employees so
transferred under this section shall retain
their respective positions in the state service, together with the
personnel benefits accumulated by them at the time of transfer, and
shall retain such the rights
as may attach attached under the law to the
positions which that they held at the
time of transfer. All nonacademic positions filled by the trustees on
and after July 1, 1961, shall be by appointment made in accordance
with Chapter 5 (commencing with Section 89500) of Part 55, and
persons so appointed shall be subject to the provisions of
Chapter 5.
(c) (1) The trustees
shall provide, or cooperate in providing, academic and administrative
employees transferred by this section with personnel rights and
benefits at least equal to those accumulated by them as employees of
the state colleges, except that any administrative employee may be
reassigned to an academic or other position commensurate with his or
her qualifications at the salary fixed for that position. An
administrative employee so reassigned shall have a right to appeal
from such that reassignment, but only
as to whether the position to which he or she is reassigned is
commensurate with his or her qualifications. All academic and
administrative positions filled by the trustees on and after July 1,
1961, shall be filled by appointment made solely at the discretion of
the trustees. The
(2) The trustees shall establish
and adjust the salaries and classifications of all academic,
nonacademic, and administrative positions and neither Section
18004 19825 of the Government Code nor
any other provision of law requiring approval by a state officer or
agency for salaries or classifications shall be applicable thereto.
In establishing and adjusting salaries, consideration shall be given
to the maintenance of the state university in a competitive position
in the recruitment and retention of qualified personnel in relation
to other educational institutions, private industry, or public
jurisdictions which that are employing
personnel with similar duties and responsibilities. The
(3) The establishment and
adjustment of salaries for nonacademic employees shall be in
accordance with the standards prescribed in Section 18850
19826 of the Government Code. The trustees,
however, shall make no adjustments which that
require expenditures in excess of existing appropriations
available for the payment of salaries. The provisions of
Chapter 5 (commencing with Section 89500) of Part 52 ,
relating to appeals from dismissal, demotion, or suspension
, shall be applicable to academic employees.
(d) Persons excluded from the transfer made
by this section shall retain all the rights and privileges conferred
upon civil service employees by law. Personnel of state agencies
employed in state university work other than those transferred by
this section , and who are employed by the trustees prior
to July 1, 1962, shall be provided with personnel rights and benefits
at least equal to those accumulated by them as employees of
such those state agencies.
(e) If the provisions of this section are in
conflict with the provisions of a memorandum of understanding
reached pursuant to Chapter 12 (commencing with Section 3560) of
Division 4 of Title 1 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. 133. Section 69539 of the Education Code is amended to read:
69539. (a) A Cal Grant C award shall be
utilized for occupational or technical training.
(a)
(b) "Occupational or technical training" means that
phase of education coming after the completion of a secondary school
program and leading toward recognized occupational goals approved by
the commission.
(b)
(c) The commission may use criteria it deems
appropriate in selecting students with occupational talents to
receive grants for occupational or technical training.
(c)
(d) The Cal Grant C recipients shall be eligible for
renewal of their grants until they have completed their occupational
or technical training in comformance
conformance with terms prescribed by the commission. In no case
shall the grants exceed two calendar years.
(d)
(e) Cal Grant C awards shall be for institutional fees,
charges, and other costs , including tuition, plus
training-related costs, such as special clothing, local
transportation, required tools, equipment, supplies, and books. In
determining the amount of grants and training-related costs, the
commission shall take into account other state and federal programs
available to the applicant.
(e)
(f) Cal Grant C awards shall be awarded in areas of
occupational or technical training as determined by the commission
after consultation with appropriate state and federal agencies.
SEC. 134. Section 69640 of the Education Code is amended to read:
69640. (a) It is the intent of the
Legislature that the California Community Colleges recognize the need
and accept the responsibility for extending the opportunities for
community college education to all who may profit therefrom
from that education regardless of economic,
social, and educational status. It is the intent and purpose of the
Legislature in establishing the Community College Extended
Opportunity Programs and Services (EOPS) to encourage local community
colleges to establish and implement programs directed to identifying
those students affected by language, social, and economic handicaps,
to increase the number of eligible EOPS students served, and to
assist those students to achieve their educational objectives and
goals, including, but not necessarily limited to,
obtaining job skills, occupational certificates, or associate
degrees, and transferring to four-year institutions.
(b) The rules and regulations of the Board
of Governors of the California Community Colleges shall be consistent
with this article. These The operation of
EOPS, as well as these rules and regulations, and
EOPS, shall be consistent with all of the following goals:
(a)
(1) To increase the number and percentage of students
enrolled in community colleges who are affected by language, social,
and economic disadvantages, consistent with state and local
matriculation policies.
(b)
(2) To increase the number and percentage of
Extended Opportunity Programs and Services (EOPS) EOPS
students who successfully complete their chosen educational
objectives.
(c)
(3) To increase the number and percentage of EOPS
students who are successfully placed into career employment.
(d)
(4) To increase the number and percentage of EOPS
students who transfer to four-year institutions following completion
of the related educational programs at community colleges.
(e)
(5) To strive to assist community colleges to meet
student and employee affirmative action objectives.
(f)
(6) To improve the delivery of programs and
sevices services to the disadvantaged.
(c) The Legislature further intends that
EOPS shall not be viewed as the only means of providing services to
nontraditional and disadvantaged students or of meeting student and
employee affirmative action objectives.
(d) The Legislature finds that the
establishment and development of extended opportunity programs and
services are essential to the conservation and development of the
cultural, social, economic, intellectual, and vocational resources of
the state.
SEC. 135. Section 76234 of the Education Code is amended to read:
76234. Whenever there is included in any student record
information concerning any disciplinary action taken by a community
college in connection with any alleged sexual assault or physical
abuse, including rape, forced sodomy, forced oral copulation, rape by
a foreign object, sexual battery, or threat of sexual assault, or
any conduct that threatens the health and safety of the alleged
victim, the alleged victim of that sexual assualt
assault or physical abuse shall be informed within three
days of the results of any disciplinary action by the community
college and the results of any appeal. The alleged victim shall keep
the results of that disciplinary action and appeal confidential.
SEC. 136. Section 81383 of the Education Code is amended to read:
81383. Notwithstanding Section 81360, the sale by the governing
board of any community college district of any real property
belonging to the community college district, or the lease by that
governing board, for a term not exceeding 99 years, of any real
property, together with any personal property located
thereon on the real property , belonging to the
community college district shall not be subject to Part 49
(commencing with Section 81000) or to Article 8 (commencing with
Section 54220) of Chapter 5 of Part 1 of Division 2 of Title 5 of the
Government Code, if all of the following conditions are met:
(a) The property is sold or leased to another local governmental
agency, or to a nonprofit corporation that is organized for the
purpose of assisting one or more local governmental agencies in
obtaining financing for a qualified community college facility.
(b) (1) In the case of the sale of community college district
property pursuant to this section, the community college district, as
part of that same sale transaction, simultaneously repurchases the
same property that is the subject of the transaction.
(2) In the case of the lease of community college district
property pursuant to this section, the community college district, as
part of that same lease transaction, simultaneously leases back, for
a term that is not substantially less than the term of that lease,
the same property that is the subject of the transaction.
(c) The financing proceeds obtained by the community college
district pursuant to any transaction described in this section are
expended solely for capital outlay purposes relating to a qualified
community college facility, including the acquisition of real
property for intended use as a site for a qualified community college
facility and the design, planning, acquisition, construction,
reconstruction, and renovation of qualified community college
facilities.
(d) For purposes of this section and Section 81384, the
term "qualified community college facility" means real and
personal property, improvements, and related facilities that are
determined in a resolution of the governing board of the community
college district to satisfy each of the following requirements:
(1) The facilities will (A) assist do both
of the following:
(A) Assist the community college
district in reducing energy and resource consumption while creating a
safer and healthier learning environment and (B) operate
.
(B) Operate as energy and
resource efficient buildings by taking cost-effective measures
similar to those described in the Green Building Action Plan
promulgated by the Governor for facilities owned, funded ,
or leased by the state.
(2) The facilities are affordable for the community college
district as set forth in estimated annual summary budgets of the
community college district that include the estimated costs of
financing the facilities during the estimated duration of the
financing demonstrating that the reasonably anticipated expenditures
during each fiscal year shall not exceed the reasonably anticipated
revenues for that fiscal year.
SEC. 137. Section 81450 of the Education Code is amended to read:
81450. (a) The governing board of any community college district
may sell for cash any personal property belonging to the district if
the property is not required for school purposes, or if it should be
disposed of for the purpose of replacement, or if it is
unsatisfactory or not suitable for school use. There shall be no sale
until notice has been given by posting in at least three public
places in the district for not less than two weeks, or by publication
for at least once a week for a period of not less than two weeks in
a newspaper published in the district and having a general
circulation there; or if there is no such newspaper, then in a
newspaper having a general circulation in the district; or if there
is no such newspaper, then in a newspaper having a general
circulation in a county in which the district or any part thereof is
situated. The board shall sell the property to the highest
responsible bidder , or shall
reject all bids.
(b) The governing board may choose to conduct any sale of personal
property authorized under this section by means of a public auction
conducted by employees of the district or other public agencies, or
by contract with a private auction firm. The board may delegate to
the district employee responsible for conducting the auction the
authority to transfer the personal property to the highest
reponsible responsible bidder upon completion of
the auction and after payment has been received by the district.
SEC. 138. Section 81645 of the Education Code is amended to read:
81645. The governing board of any community college district may
contract with a party who has submitted one of the three lowest
responsible competitive proposals or competitive bids ,
for the acquisition, procurement, or maintenance of
electronic data-processing data processing
systems and equipment, electronic telcommunication
telecommunications equipment, supporting
software, and related materials, goods, and services, in accordance
with procedures and criteria established by the governing board.
SEC. 139. Section 88167.5 of the Education Code is amended to
read:
88167.5. (a) Notwithstanding any other provision of
law, the governing board of a community college district that
collects or deducts dues, agency fees, fair share fees, or any other
fee or amount of money from the salary of a classified employee for
the purpose of transmitting the money to an employee organization
shall transmit the money to the employee organization within 15 days
of issuing the paycheck containing the deduction to the employee.
(b) (1) This section does not limit the right of an employee
organization or affected employee to sue for a failure of the
employer to transmit dues or fees pursuant to this section.
(2) In an action brought for a violation of subdivision (a), the
court may award reasonable attorney attorney'
s fees and costs to the prevailing party if any party to the
action requests attorney attorney's
fees and costs.
(c) This section applies to districts that have adopted the merit
system in the same manner and effect as if it were a part of Article
6 3 (commencing with Section 88060).
SEC. 140. Section 89241 of the Education Code is amended to read:
89241. (a) This section shall be known and may be cited as the
California Student Athlete Fair Opportunity Act of 2005.
(b) It is the intent of the Legislature to ensure that the
Trustees of the California State University provide appropriate
academic support services for student athletes and that those
athletes are given a fair opportunity to earn a baccalaureate degree.
(c) The trustees shall ensure, through executive order or
regulation, that all California State University campuses that
provide athletic scholarships for student athletes also provide
summer athletic scholarships commencing with the 2006 summer term.
The provision of these summer athletic scholarships shall be
consistent with both of the following:
(1) The requirements of Title IX of the federal Education
Amendments of 1972, as amended from time to time.
(2) The bylaws of the National Collegiate Athletic Association, as
amended from time to time.
(d) Students who are otherwise ineligible for admission to the
specific campus of the California State University, but who are
admitted under policies that permit those students to be admitted if
they have athletic ability that will contribute to the campus, shall
be given first priority for summer athletic scholarship assistance.
(e) (1) Summer athletic scholarships awarded pursuant to this
section shall, at a minimum, be sufficient to cover the cost of
tuition, fees, books, and supplies as calculated for purposes of the
summer cost of attendance under the provisions of Title IV of the
federal Education Act of 1965, as it is amended from time to time.
(2) Nothing in this part shall be construed to limit a summer
athletic scholarship awarded pursuant to this section to any amount
less than that which is allowed under the bylaws of the National
Collegiate Athletic Association.
(3) A summer athletic scholarship awarded pursuant to this section
shall be of sufficient amount and duration with regard to the number
of summer sessions and the number of units covered, to provide a
student athlete a fair opportunity to correct academic progress
problems through attendance in a summer session.
(f) A summer athletic scholarship awarded pursuant to this section
may be funded through any revenue source available to, or procured
by, the campuses of the California State University, including, but
not necessarily limited to, gate receipts, donations from alumni and
others, corporate sponsorships, associated student contributions,
and campus-based student fees that may be legally used for
this purpose. In accordance with subdivision (i), the California
State University shall not use state General Fund moneys or state
university fee revenue to fund summer athletic scholarships. The
California State University shall not set aside, for the purposes of
summer athletic scholarships, any institutional financial aid funds
for which any financially needy students are elgible
eligible . A student athlete may only receive
summer financial aid assistance if that student athlete otherwise
qualifies for that assistance irrespective of his or her status as a
student athlete.
(g) (1) The trustees shall ensure, through executive order or
regulation, that all California State University campuses that are
members of the National Collegiate Athletic Association have a
comprehensive plan for the academic support of student athletes.
(2) The plan adopted pursuant to this subdivision shall be
consistent with the requirements of Title IX of the federal Education
Amendments of 1972, as amended from time to time, and the bylaws of
the National Collegiate Athletic Association, as amended from time to
time. This plan shall include, but not necessarily be limited to,
coordination with existing academic and financial support services at
the campus, evaluation of the academic needs of student athletes, a
set of academic support initiatives, a financing plan for these
initiatives and a fund-raising strategy for the augmentation of these
initiatives, and a regular evaluation mechanism to monitor the
academic progress of athletes and the effectiveness of academic
support programs.
(3) Services provided under this subdivision may include any of
the following:
(A) Additional athletic financial assistance, which covers an
amount up to the cost of attendance under the provisions of Title IV
of the federal Education Act of 1965, as it is
amended from time to time, for additional periods of attendance
necessary for an athlete to complete the requirements for a
baccalaureate degree after the student's period of athletic
eligibility has ended.
(B) Employment assistance, including work study programs.
(C) Tutoring.
(D) Mentoring.
(E) Accommodations in the scheduling of class sections to provide
a fair opportunity for student athletes to attend required courses in
a manner that allows them to participate in the requirements of
their sports.
(h) (1) The trustees shall report to the Legislature and the
Governor on or before November 1, 2006, and subsequently on or before
November 1 of each odd-numbered year, commencing on November 1,
2007, regarding the status of athletic academic progress and athletic
academic support in the California State University system for all
campuses that are members of the National Collegiate Athletic
Association.
(2) If any data that are required to be reported pursuant to
paragraph (3) could yield an individual identification of an athlete,
or if any data or information required to be reported pursuant to
paragraph (3) could be considered to be of a proprietary nature as
related to the sports enterprise of the campus, those data may be
forwarded under separate cover to the Governor and to the relevant
policy committees of the Legislature with a request for
confidentiality.
(3) The report required by this subdivision shall include, but not
necessarily be limited to, all of the following information:
(A) A five-year history of the graduation rate and Academic
Progress Rate of each team on each campus as calculated by the
National Collegiate Athletic Association, to the extent these rates
are available.
(B) Annual admission category information for each team on each
campus that indicates the number and percent of students admitted who
were not eligible for regular admission to the campus or the
university.
(C) A summary of the academic initiatives and support programs
available to the athletes at each campus.
(D) If the campus participates in Division I, including any of its
subparts, of the National Collegiate Athletic Association, and if
any team or the athletic program overall has an Academic Progress
Rate score of less than 925 for any
year, a summary of the corrective action planned by the
campus or athletic department as well as a report on sanctions, if
any, imposed by the National Collegiate Athletic Association.
(E) The total budget for the athletic programs and each team,
including an itemization of the amount spent on athletic scholarships
and the amount spent on summer athletic scholarships.
(i) The California State University shall not encumber, for the
purposes of this section, any moneys from the state General Fund or
any state university fee revenue.
SEC. 141. Section 89503 of the Education Code is amended to read:
89503. (a) The trustees may authorize payments into a private
fund to provide health and welfare benefits to nonpermanent employees
of the class specified in Section 18853 19830
of the Government Code employed by the trustees, upon a
finding by the trustees as to any position that the criteria stated
in subdivision (a) of Section 18853.5 19831
of the Government Code are satisfied.
(b) Payments made by the state pursuant to this section to any
fund on behalf of any employees shall be in lieu of benefits such as
vacation allowance, sick leave, and retirement which
that may be granted directly by the state in
accordance with law.
(c) The trustees may determine the equitable application of this
section to ensure that the employees receive benefits comparable to,
but not in excess of, those provided in comparable private
employment.
(d) The payments authorized by this section shall be a proper
charge against any funds available for the support of the California
State University.
(e) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Chapter 12 (commencing with Section 3560) of Division 4 of Title 1 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. 142. Section 89750.5 of the Education Code is amended to
read:
89750.5. (a) Notwithstanding Sections 948 and 965.2 of the
Government Code or any other provision of law, the trustees may
settle, adjust, or compromise any pending action ,
or final judgment, without the need for a recommendation,
certification, or approval from any other state officer or entity.
The Controller shall draw a warrant for the payment of any
settlement, adjustment, or compromise, or final judgment against the
trustees if the trustees certify that a sufficient appropriation for
the payment of the settlement, adjustment, or
compromise, or final judgment exists.
(b) Notwithstanding subdivision (c) of Section 905.2 of the
Government Code or any other provision of law, the trustees may pay
any claim for money or damages on express contract ,
or for an injury for which the trustees or their officers
or employees are liable , without approval of the
State Board of Control California Victim Compensation
and Government Claims Board if the trustees determine that
payment of the claim is in the best interests of the California State
University and that funds are available to pay the claim. The
authority of the trustees conferred by this subdivision does not
alter any other requirements governing claims in the Tort Claims Act
(Division 3.6 (commencing with Section 810) of Title 1 of the
Government Code), except to grant the trustees authority to pay these
claims.
(c) Notwithstanding Chapter 3 (commencing with Section 13940) of
Part 4 of Division 3 of Title 2 of the Government Code, the trustees
may discharge from accountability the sum of one thousand dollars
($1,000) , or less, owing to the California State
University if the trustees determine that the money is uncollectible
or the amount does not justify the cost of collection. A discharge of
accountability by the trustees does not release any person from the
payment of any money moneys due the
California State University.
SEC. 143. Section 92300 of the Education Code is amended to read:
92300. (a) The Regents of the University of
California and any other public or private nonprofit agency may
contract with the State Department of Education to
establish and maintain a child development center on or near each
campus of the university pursuant to the provisions of
Chapter 2 (commencing with Section 8200) of Part 6
of Division 1 of Title 1 .
Such operating
(b) Operating agencies may accept
student fees, parent fees, and private funds to operate campus child
development centers , and may be reimbursed for
eligible costs that are eligible pursuant to
Sections 8209 and 8380 Section 8208 .
SEC. 144. Section 92611.7 of the Education Code is amended to
read:
92611.7. (a) The regents are urged to offer, on at least a
semiannual basis, to each of the university's filers, an orientation
course on the relevant ethics statutes and regulations that govern
the official conduct of university officials.
(b) As used in this section, "filer" means each member, officer,
or designated employee of the University of California, including a
regent, who, because of his or her affiliation with the university or
any subdivision or campus thereof, is required to file a
Statement statement of Economic
Interests economic interests in accordance with
Chapter 7 (commencing with Section 87100) of Title 9 of the
Government Code .
(c) The regents shall maintain records indicating the specific
attendees, each attendee's job title, and dates of their attendance
for each orientation course offered pursuant to this section. These
records shall be maintained for a period of at least five years after
each course is offered. These records shall be public records
subject to inspection and copying in accordance with subdivision (a)
of Section 81008 of the Government Code and any other public records
disclosure laws that are applicable to the university.
(d) Except as provided in subdivision (e), each filer shall attend
the orientation course established pursuant to subdivision (a) in
accordance with both of the following:
(1) For a person who, as of January 1, 2005, is a filer, as
defined in subdivision (b), not later than December 31, 2005, and
thereafter, at least once during each consecutive period of two
calendar years commencing on January 1, 2007.
(2) For a person who becomes a filer, as defined in subdivision
(b), after January 1, 2005, within six months after he or she becomes
a filer, and at least once during each consecutive period of two
calendar years commencing on January 1 of the first odd-numbered year
thereafter.
(e) The requirements of subdivision (d) shall not apply to a
filer, as defined in subdivision (b), who has taken an ethics
orientation course through another state agency or the Legislature
within the periods set forth in paragraphs (1) and (2) of subdivision
(d) if, in the determination of the regents, that course covered
substantially the same material as the course the university would
offer to the filer pursuant to this section.
SEC. 145. Section 94985 of the Education Code is amended to read:
94985. (a) Any institution that willfully violates any provision
of Section 94800, 94810, 94814, or 94816, Sections 94820 to 94826,
inclusive, or Section 94829, 94831, or 94832 may not
enforce any contract or agreement arising from the transaction in
which the violation occurred, and any willful violation is a ground
for revoking an approval to operate in this state or for denying a
renewal application.
(b) (1) Any person who claims that an
institution is operating in violation of subdivision (a) of Section
94831, subdivision (a) of Section 94900, or Section 94915, or an
institution is operating a branch or satellite campus in violation of
subdivision (a) of Section 94857, may bring an action, in a court of
competent jurisdiction, for the recovery of actual and or statutory
damages as well as an equity proceeding to restrain and enjoin those
violations, or both.
(1)
(2) At least 35 days prior to the commencement of an
action pursuant to this subdivision, the plaintiff shall do all of
the following:
(A) Notify the institution alleged to have violated subdivision
(a) of Section 94831, subdivision (a) of Section 94900, Section
94915, or subdivision (a) of Section 94857, of the particular alleged
violations.
(B) Demand that the institution apply for the bureau's approval to
operate as required by subdivision (a) of Section 94831, subdivision
(a) of Section 94900, Section 94915, or subdivision (a) of Section
94857, whichever is applicable.
(C) The notice shall be in writing, and shall be sent by regular
mail and certified or registered mail, return receipt requested, to
the location of the institution that is allegedly operating in
violation of subdivision (a) of Section 94831, subdivision (a) of
Section 94900, Section 94915, or subdivision (a) of Section 94857,
whichever is applicable.
(D) The institution shall have 30 working days, from receipt of
the notice, to file an application for approval to operate with the
bureau.
(E) No action pursuant to this subdivision may be filed if the
institution, within 30 working days after receipt of the notice,
applies for the bureau's approval to operate as required by
subdivision (a) of Section 94831, subdivision (a) of Section 94900,
Section 94915, or subdivision (a) of Section 94857, whichever is
applicable.
(F) If, within 35 days after receipt of the notice, the bureau has
not received an application from the institution, the bureau shall
mail the plaintiff a certification that the institution has not
applied or been approved to operate pursuant to subdivision (a) of
Section 94831, subdivision (a) of Section 94900, Section 94915, or
subdivision (a) of Section 94857, whichever is applicable.
(G) The plaintiff shall also notify the bureau by mail and by
certified or registered mail, return receipt requested, that he or
she intends to bring an action pursuant to this section against the
institution. Upon receipt of this notice, the bureau shall
immediately investigate the institution's compliance with subdivision
(a) of Section 94831, subdivision (a) of Section 94900, Section
94915, or subdivision (a) of Section 94857, whichever is applicable,
and, if the bureau determines that the institution has violated the
applicable section, the bureau shall immediately order the
institution to cease and desist operations. For each day that the
institution continues to operate in violation of the bureau's cease
and desist order, the institution shall be fined one thousand dollars
($1,000).
(2)
(3) If the court finds that the institution has
violated subdivision (a) of Section 94831, subdivision (a) of Section
94900, Section 94915, or subdivision (a) of Section 94857, all of
the following shall occur:
(A) The court shall order the institution to cease all operations
and to comply with all procedures set forth in this code pertaining
to the closure of institutions.
(B) The court shall order the institution to pay all students who
enrolled while the school was in violation of subdivision (a) of
Section 94831, subdivision (a) of Section 94900, Section 94915, or
subdivision (a) of Section 94857 a refund of all tuition and fees
paid to the institution and a statutory penalty of one thousand
dollars ($1,000).
(C) The court shall order the institution to pay the prevailing
party's attorneys' attorney' s
fees and costs.
(D) The court shall order the institution to pay to the bureau all
fines incurred pursuant to subparagraph (E)
(G) of paragraph (1) (2) .
(E) Any instrument of indebtedness, enrollment agreement, or
contract for educational services is unenforceable pursuant to
Section 94838. The court shall order the institution to mail a notice
to all students who were enrolled while the school was in violation
of subdivision (a) of Section 94831, subdivision (a) of Section
94900, Section 94915, or subdivision (a) of Section 94857, stating
that instruments of indebtedness, enrollment agreements, and
contracts for educational services are not enforceable. If the
institution fails to provide adequate proof to the court and to the
bureau that it has mailed this notice within 30 days of the court's
order, the bureau shall mail the notice to the students and the court
shall order the institution to pay the bureau's costs of generating
and mailing the notices, in no case less than five thousand dollars
($5,000).
(3)
(4) Any violation of subdivision (a) of Section 94831,
subdivision (a) of Section 94900, Section 94915, and subdivision (a)
of Section 94857 shall constitute an unfair business practice within
the meaning of Section 17200 of the Business and Professions Code.
(4)
(5) A certification, issued by the bureau, that the
institution has not applied for approval to operate and has not been
approved to operate as required by subdivision (a) of Section 94831,
subdivision (a) of Section 94900, Section 94915, or subdivision (a)
of Section 94857, whichever is applicable, shall establish a
conclusive presumption that the institution has violated this
subdivision.
(5)
(6) All fines and other monetary amounts that an
institution is ordered to pay pursuant to this subdivision may be
collected from the institution itself and from the individuals who
own the institution, whether or not the institution is organized as a
corporation.
(6)
(7) Notwithstanding any provision of the contract or
agreement, a student may bring an action for a violation of this
article or for an institution's failure to perform its legal
obligations and, upon prevailing thereon, is entitled to the recovery
of damages, equitable relief, or any other relief authorized by this
article, and reasonable attorney's fees and costs.
(d)
(c ) If a court finds that a violation was
willfully committed or that the institution failed to refund all
consideration as required by subdivision (b) on the student's written
demand, the court, in addition to the relief authorized under
subdivision (b), shall award a civil penalty of up to two times the
amount of the damages sustained by the student.
(e)
(d) The remedies provided in this article supplement,
but do not supplant, the remedies provided under any other provision
of law.
(f)
(e) An action brought under this section shall be
commenced within three years of the discovery of the facts
constituting grounds for commencing the action.
(g)
(f) Any provision in any agreement that purports to
require a student to invoke any grievance dispute procedure
established by the institution before enforcing any right or remedy
is void and unenforceable.
(h)
(g) A student may assign his or her cause of action for
a violation of this article to the bureau, or to any state or
federal agency that guaranteed or reinsured a loan for the student or
that provided any grant or other financial aid.
(i)
(h) This section applies to any action pending on the
effective date of this section.
(j)
(i) This section supplements, but does not supplant,
the authority granted the Division of Labor Standards Enforcement
under Chapter 4 (commencing with Section 79) of Division 1 of the
Labor Code to the extent that placement activities of trade schools
are subject to regulation by the division under the Labor Code.
(k)
(j) If a student commences an action or asserts any
claim in an existing action for recovery on behalf of a class of
persons, or on behalf of the general public, under Section 17200 of
the Business and Professions Code, the student shall notify the
bureau of the existence of the lawsuit, the court in which the action
is pending, the case number of the action, and the date of the
filing of the action or of the assertion of the claim. The student
shall notify the bureau as required by this subdivision within 30
days of the filing of the action or of the first assertion of the
claim, whichever is later. The student shall also notify the court
that he or she has notified the bureau pursuant to this subdivision.
Notwithstanding any other provision of law, no judgment may be
entered pursuant to this section until the student has notified the
bureau of the suit and notified the court that the bureau has been
notified. This subdivision only applies to a new action filed or to
a new claim asserted on or after January 1, 2002.
SEC. 146. Section 94990 of the Education Code is amended to read:
94990. The bureau is subject to the sunset review process
conducted by the Joint Committee on Boards, Commissions, and Consumer
Protection pursuant to Division 1.2 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 Division 1.2 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. 147. Section 99156 of the Education Code is amended to read:
99156. A test agency shall prepare a clear, easily understandable
written description of each standardized test it administers. A copy
of the appropriate description shall be provided to the test subject
or the test score recipient prior to the administration of the test
or coinciding with the initial reporting of a test score. The
description shall include all of the following information:
(a) The purposes for which the test is constructed and intended to
be used.
(b) For those tests used to predict performance, the subject
matter included on these tests and the knowledge and skills
which that the test purports to measure.
(c) Statements designed to provide information for interpreting
the test scores, including the explanations of the test, the standard
error of measurement, and for those tests used to predict
performance, the correlation between test score and performance.
(d) Statements concerning the effects and uses of test scores,
including both of the following:
(1) If the test score is used by itself or with other information
to predict future grade point average, a summary of existing data on
the extent to which the use of this test score will improve the
accuracy of predicting future grade point average, over and above all
other information used.
(2) A summary of existing data on the extent to which the
improvement in test scores results from test preparation courses.
(e) A description of the form in which test scores will be
reported, and whether the raw test scores will be altered in any way
before being reported to the test subject.
(f) A complete description of any promises or covenants
which that the test agency makes to the test
subject with regard to any of the following matters:
(1) The accuracy of scoring.
(2) The time period within which the test subject's score will be
reported to the test subject and to the test score recipients.
(3) The privacy of information relating to the test subject,
including his or her test scores.
(g) The property interest in the test score held by the test
subject, if any.
(h) The period of time the test agency will retain the test score,
and the test agency's policies regarding the storage, disposal, and
future use of test scores.
(i) A description of all special services which
that will be provided at the location of the test
administration to accommodate handicapped or disabled test subjects.
(j) The policies and procedures of the test agency when there is a
delay in reporting the test scores pursuant to Section
91160 99158 .
(k) A representative set of sample test items.
(l) The fees to be charged by the test sponsor for various
services made available to the test subject.
(m) Each test agency shall comply with the requirements of this
section beginning with the start of its testing year which
that begins after January 1, 1985.
SEC. 148. Section 100603 of the Education Code is amended to read:
100603. (a) Bonds in the total amount of
thirteen billion fifty million dollars ($13,050,000,000), not
including the amount of any refunding bonds issued in accordance with
Sections 100644 and 100755, or so much thereof as is necessary, may
be issued and sold to provide a fund to be used for carrying out the
purposes expressed in this part and to reimburse the General
Obligation Bond Expense Revolving Fund pursuant to Section 16724.5 of
the Government Code. The bonds, when sold, shall be and constitute a
valid and binding obligation of the State of California, and the
full faith and credit of the State of California is hereby pledged
for the punctual payment of the principal of, and interest on, the
bonds as the principal and interest become due and payable.
(b) Pursuant to this section, the Treasurer shall sell the bonds
authorized by the State School Building Finance Committee established
by Section 15909 or the Higher Education Facilities Finance
Committee established pursuant to Section 67353, as the case may be,
at any different times necessary to service expenditures required by
the apportionments.
SEC. 149. Section 7154 of the Elections Code is amended to read:
7154. (a) Each officer named in subdivision (a) of Section 7150
who was nominated and elected as a candidate of the party and whose
term of office extends beyond the first Monday in December ,
in the case of legislators Members of
the Legislature, and the Monday after January 1 , in
the case of other officers , next following the direct
primary election, or the appointee or successor appointed, elected,
or otherwise designated by law to fill a vacancy in the office of
any that officer, shall be known as a "holdover
member."
(b) Each candidate of the party in whose behalf nomination papers
were filed and who was nominated at the direct primary election by
that party shall be known as a "nominee member." Nominees for an
office, the term of which extends beyond two years, are members of
each succeeding state central committee until that following the
direct primary election at which nominations for the office are again
to be made. If a candidate is a "nominee member" in the year in
which he or she is nominated, and is elected to the office at the
succeeding general election, the candidate shall be considered a
"holdover member" in the next odd-numbered year.
(c) One member shall be appointed pursuant to Section 7168 for
each of the officers named in subdivision (a) of Section 7150 not
represented by a "holdover member" nor by a "nominee member" of the
party.
SEC. 150. Section 7854 of the Elections Code is amended to read:
7854. The removal of residence by an elected or appointed member
of a county central committee from the county from which the member
was elected shall constitute the of the member
member's automatic resignation from the committee.
SEC. 151. Section 9086 of the Elections Code is amended to read:
9086. The ballot pamphlet shall contain as to each state measure
to be voted upon, the following, in the order set forth in this
section:
(a) Upon the top portion of the first page, and not exceeding
one-third of the page, shall appear:
(1) Identification of the measure by number and title.
(2) The official summary prepared by the Attorney General.
(3) The total number of votes cast for and against the measure in
both the State Senate and Assembly, if the measure was passed by the
Legislature.
(b) Beginning at the top of the right page shall appear the
analysis prepared by the Legislative Analyst, provided that the
analysis fits on a single page. If it does not fit on a single page,
the analysis shall begin on the lower portion of the first left page
and shall continue on subsequent pages until it is completed.
(c) Arguments for and against the measure shall be placed on the
next left and right pages, respectively, following the final page of
the analysis of the Legislative Analyst ends . The
rebuttals shall be placed immediately below the arguments.
(d) If no argument against the measure has been submitted, the
argument for the measure shall appear on the right page facing the
analysis.
(e) The complete text of each measure shall appear at the back of
the pamphlet. The text of the measure shall contain the provisions of
the proposed measure and the existing provisions of law repealed or
revised by the measure. The provisions of the proposed measure
differing from the existing provisions of law affected shall be
distinguished in print, so as to facilitate comparison.
(f) The following statement shall be printed at the bottom of each
page where arguments appear: "Arguments printed on this page are the
opinions of the authors, and have not been checked for accuracy by
any official agency."
SEC. 152. Section 9096 of the Elections Code is amended to read:
9096. (a) As soon as copies of the ballot pamphlet are available,
the Secretary of State shall immediately mail the following number
of copies to the listed persons and places:
(1) Five copies to each county elections official or registrar of
voters ; .
(2) Six copies to each city elections official.
(3) Five copies to each Member of the Legislature.
(4) Five copies to the proponents of each ballot measure.
(b) The Secretary of State shall also mail:
(1) Two copies to each public library and branch thereof.
(2) Twelve copies to each public high school or other public
school teaching at least the 11th and 12th grades, and 25 copies to
each public public institution of higher learning.
Upon request, and in the discretion of the Secretary of State,
additional copies may be furnished to these persons and institutions.
SEC. 153. Section 10225 of the Elections Code is amended to read:
10225. (a) Notwithstanding Sections 10220 and 10224, if
nomination papers for an incumbent officer of the city are not filed
by or on the 88th day before the election, during normal
business hours, as posted, the voters shall have until the 83rd day
before the election during
normal business hours, as posted, to nominate candidates other than
the person who was the incumbent on the 88th day, for that incumbent'
s elective office.
(b) This section is not applicable where there is no incumbent
eligible to be elected. If this section is applicable,
notwithstanding Section 10224, a candidate may withdraw his or her
nomination paper until the 83rd day before the election during normal
business hours, as posted.
SEC. 154. Section 15375 of the Elections Code is amended to read:
15375. The elections official shall send to the Secretary of
State within 35 days of the election in the manner requested one
complete copy of all results as to all of the following:
(a) All candidates voted for statewide office.
(b) All candidates voted for the following offices:
(1) Member of the Assembly.
(2) Member of the Senate.
(3) Member of the United States House of Representatives.
(4) Member of the State Board of Equalization.
(5) Justice of the Court of Appeal.
(6) Judge of the superior court.
(7) Judge of the municipal court.
(c) All persons voted for at the presidential primary. The results
for all persons voted for at the presidential primary for delegates
to national conventions shall be canvassed and shall be sent within
28 days after the election.
(d) The vote given for persons for electors of President and Vice
President of the United States. The results for presidential electors
shall be endorsed "Presidential Election Returns."
(e) All statewide measures.
SEC. 155. Section 1560 of the Evidence Code is amended to read:
1560. (a) As used in this article:
(1) "Business" includes every kind of business described in
Section 1270.
(2) "Record" includes every kind of record maintained by a
business.
(b) Except as provided in Section 1564, when a subpoena duces
tecum is served upon the custodian of records or other qualified
witness of a business in an action in which the business is neither a
party nor the place where any cause of action is alleged to have
arisen, and the subpoena requires the production of all or any part
of the records of the business, it is sufficient compliance therewith
if the custodian or other qualified witness delivers by mail or
otherwise a true, legible, and durable copy of all of the records
described in the subpoena to the clerk of the court or to another
person described in subdivision (d) of Section 2026.010 of the Code
of Civil Procedure, together with the affidavit described in Section
1561 , within five one of the following
time periods:
(1) In any criminal action, five
days after the receipt of the subpoena in any criminal
action or within the time agreed upon by the party who served the
subpoena and the custodian or other qualified witness, or within
.
(2) In any civil action, within
15 days after the receipt of the subpoena in any civil
action or within .
(3) Within the time agreed upon
by the party who served the subpoena and the custodian or other
qualified witness , delivers by mail or otherwise a true,
legible, and durable copy of all the records described in the
subpoena to the clerk of the court or to another person described in
subdivision (d) of Section 2026.010 of the Code of Civil Procedure,
together with the affidavit described in Section 1561 .
(c) The copy of the records shall be separately enclosed in an
inner envelope or wrapper, sealed, with the title and number of the
action, name of witness, and date of subpoena clearly inscribed
thereon; the sealed envelope or wrapper shall then be enclosed in an
outer envelope or wrapper, sealed, and directed as follows:
(1) If the subpoena directs attendance in court, to the clerk of
the court.
(2) If the subpoena directs attendance at a deposition, to the
officer before whom the deposition is to be taken, at the place
designated in the subpoena for the taking of the deposition or at the
officer's place of business.
(3) In other cases, to the officer, body, or tribunal conducting
the hearing, at a like address.
(d) Unless the parties to the proceeding otherwise agree, or
unless the sealed envelope or wrapper is returned to a witness who is
to appear personally, the copy of the records shall remain sealed
and shall be opened only at the time of trial, deposition, or other
hearing, upon the direction of the judge, officer, body, or tribunal
conducting the proceeding, in the presence of all parties who have
appeared in person or by counsel at the trial, deposition, or
hearing. Records which that are
original documents and which that are
not introduced in evidence or required as part of the record shall be
returned to the person or entity from whom received. Records
which that are copies may be destroyed.
(e) As an alternative to the procedures described in subdivisions
(b), (c), and (d), the subpoenaing party in a civil action may direct
the witness to make the records available for inspection or copying
by the party's attorney, the attorney's representative, or deposition
officer as described in Section 2020.420 of the Code of Civil
Procedure, at the witness' business address under reasonable
conditions during normal business hours. Normal business hours, as
used in this subdivision, means those hours that the business of the
witness is normally open for business to the public. When provided
with at least five business days' advance notice by the party's
attorney, attorney's representative, or deposition officer, the
witness shall designate a time period of not less than six continuous
hours on a date certain for copying of records subject to the
subpoena by the party's attorney, attorney's representative ,
or deposition officer. It shall be the responsibility of the
attorney's representative to deliver any copy of the records as
directed in the subpoena. Disobedience to the deposition subpoena
issued pursuant to this subdivision is punishable as provided in
Section 2020.240 of the Code of Civil Procedure.
SEC. 156. Section 274 of the Family Code is amended to read:
274. (a) Notwithstanding any other provision of law,
where if the injured spouse is entitled to a
remedy authorized pursuant to subdivision (a) of
Section 4324, the injured spouse shall be entitled to an award of
reasonable attorney's fees and costs as a sanction pursuant to this
section.
(b) An award of attorney's fees and costs as a sanction pursuant
to this section shall be imposed only after notice to the party
against whom the sanction is proposed to be imposed and opportunity
for that party to be heard.
(c) An award of attorney's fees and costs as a sanction pursuant
to this section is payable only from the property or income of the
party against whom the sanction is imposed, except that the award may
be against the sanctioned party's share of the community property.
In order to obtain an award under this section, the party requesting
an award of attorney's fees and costs is not required to demonstrate
any financial need for the award.
SEC. 157. Section 3046 of the Family Code is amended to read:
3046. (a) If a party is absent or relocates from the family
residence, the court shall not consider the absence or relocation as
a factor in determining custody or visitation in either of the
following circumstances:
(1) The absence or relocation is of short duration and the court
finds that, during the period of absence or relocation, the party has
demonstrated an interest in maintaining custody or visitation, the
party maintains, or makes reasonable efforts to maintain, regular
contact with the child, and the party's behavior demonstrates no
intent to abandon the child.
(2) The party is absent or relocates because of an act or acts of
actual or threatened domestic or family violence by the other party.
(b) The court may consider attempts by one party to interfere with
the other party's regular contact with the child in determining if
the party has satisfied the requirements of subdivision (a).
(c) This section does not apply to either of the
following:
(1) A party against whom a protective or restraining order has
been issued excluding the party from the dwelling of the other party
or the child, or otherwise enjoining the party from assault or
harrassment har assment
against the other party or the child, including, but not limited to,
orders issued under Part 4 (commencing with Section 6300) of Division
10, orders preventing civil harassment or workplace violence issued
pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure,
and criminal protective orders issued pursuant to Section 136.2 of
the Penal Code.
(2) A party who abandons a child as provided in Section 7822.
SEC. 158. Section 3121 of the Family Code is amended to read:
3121. (a) In any proceeding pursuant to Section 3120, and in any
proceeding subsequent to entry of a related judgment, the court shall
ensure that each party has access to legal representation to
preserve each party's rights by ordering, if necessary based on the
income and needs assessments, one party, except a government entity,
to pay to the other party, or to the other party's attorney, whatever
amount is reasonably necessary for attorney's fees and for the cost
of maintaining or defending the proceeding during the pendency of the
proceeding.
(b) Whether one party shall be ordered to pay attorney's fees and
costs for another party, and what amount shall be paid, shall be
determined based upon (1) the respective incomes and needs of the
parties, and (2) any factors affecting the parties' respective
abilities to pay. A party who lacks the financial ability to hire an
attorney may request, as an in pro per litigant, that the court order
the other party, if that other party has the financial ability, to
pay a reasonable amount to allow the unrepresented party to retain an
attorney in a timely manner before proceedings in the matter go
forward.
(c) Attorney's fees and costs within this section may be awarded
for legal services rendered or costs incurred before or after the
commencement of the proceeding.
(d) The court shall augment or modify the original award for
attorney's fees and costs as may be reasonably necessary for the
prosecution or defense of a proceeding described in Section 3120, or
any proceeding related thereto, including after any appeal has been
concluded.
(e) Except as provided in paragraph (g)
subdivision (f) , an application for a temporary order making,
augmenting, or modifying an award of attorney's fees, including a
reasonable retainer to hire an attorney, or costs, or both, shall be
made by motion on notice or by an order to show cause during the
pendency of any proceeding described in Section 3120.
(f) The court shall rule on an application for fees under this
section within 15 days of the hearing on the motion or order to show
cause. An order described in subdivision (a) may be made without
notice by an oral motion in open court at either of the following
times:
(1) At the time of the hearing of the cause on the merits.
(2) At any time before entry of judgment against a party whose
default has been entered pursuant to Section 585 or 586 of the Code
of Civil Procedure. The court shall rule on any motion made pursuant
to this subdivision within 15 days and prior to the entry of any
judgment.
SEC. 159. Section 4905 of the Family Code, as amended by Section 3
of Chapter 349 of the Statutes of 2002, is amended to read:
4905. (a) In a proceeding to establish or
enforce a support order or to determine parentage, a tribunal of this
state may exercise personal jurisdiction over a nonresident
individual or the individual's guardian or conservator if any of the
following apply:
(1) The individual is personally served with notice within this
state.
(2) The individual submits to the jurisdiction of this state by
consent, by entering a general appearance, or by filing a responsive
document having the effect of waiving any contest to personal
jurisdiction.
(3) The individual resided with the child in this state.
(4) The individual resided in this state and provided prenatal
expenses or support for the child.
(5) The child resides in this state as a result of the acts or
directives of the individual.
(6) The individual engaged in sexual intercourse in this state and
the child may have been conceived by that act of intercourse.
(7) The individual has filed a declaration of paternity pursuant
to Chapter 3 (commencing with Section 7570) of Part 2 of Division 12.
(8) There is any other basis consistent with the constitutions of
this state and the United States for the exercise of personal
jurisdiction.
(b) The bases of personal jurisdiction set forth in subdivision
(a) or in any other law of this state may not be used to acquire
personal jurisdiction for a tribunal of the state to modify a child
support order of another state unless the requirements of Section
4960 or 4964 are met.
SEC. 160. Section 7605 of the Family Code is amended to read:
7605. (a) In any proceeding to establish physical or legal
custody of a child or a visitation order under this part, and in any
proceeding subsequent to entry of a related judgment, the court shall
ensure that each party has access to legal representation to
preserve each party's rights by ordering, if necessary based on the
income and needs assessments, one party, except a government entity,
to pay to the other party, or to the other party's attorney, whatever
amount is reasonably necessary for attorney's fees and for the cost
of maintaining or defending the proceeding during the pendency of the
proceeding.
(b) Whether one party shall be ordered to pay attorney's fees and
costs for another party, and what amount shall be paid, shall be
determined based upon (1) the respective incomes and needs of the
parties, and (2) any factors affecting the parties' respective
abilities to pay. A party who lacks the financial ability to hire an
attorney may request, as an in pro per litigant, that the court order
the other party, if that other party has the financial ability, to
pay a reasonable amount to allow the unrepresented party to retain an
attorney in a timely manner before proceedings in the matter go
forward.
(c) Attorney's fees and costs within this section may be awarded
for legal services rendered or costs incurred before or after the
commencement of the proceeding.
(d) The court shall augment or modify the original award for
attorney's fees and costs as may be reasonably necessary for the
prosecution or defense of a proceeding described in subdivision (a),
or any proceeding related thereto, including after any appeal has
been concluded.
(e) Except as provided in paragraph (g)
subdivision (f) , an application for a temporary order making,
augmenting, or modifying an award of attorney's fees, including a
reasonable retainer to hire an attorney, or costs, or both, shall be
made by motion on notice or by an order to show cause during the
pendency of any proceeding described in subdivision (a).
(f) The court shall rule on an application for fees under this
section within 15 days of the hearing on the motion or order to show
cause. An order described in subdivision (a) may be made without
notice by an oral motion in open court at either of the following
times:
(1) At the time of the hearing of the cause on the merits.
(2) At any time before entry of judgment against a party whose
default has been entered pursuant to Section 585 or 586 of the Code
of Civil Procedure. The court shall rule on any motion made pursuant
to this subdivision within 15 days and prior to the entry of any
judgment.
SEC. 161. Section 9201 of the Family Code is amended to read:
9201. (a) Except as otherwise permitted or required by statute,
neither the department nor a licensed adoption agency shall release
information that would identify persons who receive, or have
received, adoption services.
(b) Employees of the department and licensed adoption agencies
shall release to the department at Sacramento any requested
information, including identifying information, for the purposes of
recordkeeping and monitoring, evaluation, and regulation of the
provision of adoption services.
(c) Prior to the placement of a child for adoption, the department
or licensed adoption agency may, upon the written request of both a
birth and a prospective adoptive parent, arrange for contact between
these birth and prospective adoptive parents that may include the
sharing of identifying information regarding these parents.
(d) The department and any licensed adoption agency may, upon
written authorization for the release of specified information by the
subject of that information, share information regarding a
prospective adoptive parent or birth parent with other social service
agencies, including the department and other licensed adoption
agencies, or providers of health care as defined in Section 56.05 of
the Civil Code.
(e) Notwithstanding any other law, the department and any licensed
adoption agency may furnish information relating to an adoption
petition or to a child in the custody of the department or any
licensed adoption agency to the juvenile court, county welfare
department, public welfare agency, private welfare agency licensed by
the department, provider of foster care services, potential adoptive
parent, or provider of health care as defined in Section 56.05 of
the Civil Code, if it is believed the child's welfare will be
promoted thereby.
(f) The department and any licensed adoption agency may make
adoptions adoption case records,
including identifying information, available for research purposes,
provided that the research will not result in the disclosure of the
identity of the child or the parties to the adoption to anyone other
than the entity conducting the research.
SEC. 162. Section 687 of the Financial Code is amended to read:
687. (a) For purposes of Section 316 of the Corporations Code, to
the extent that the making by a bank or by any majority-owned
subsidiary of a bank of a distribution to any shareholder of the bank
is contrary to any provision of Article 3 (commencing with Section
640), the making of the distribution shall, to the
that extent, be deemed to be contrary to the provisions
of Section 500 of the Corporations Code.
(b) The commissioner may, in the name of the people of this state,
bring or intervene in an action under Section 316 of the
Corporations Code for the benefit of a bank against any or all of the
directors of the bank or of any majority-owned subsidiary of the
bank on account of the making of a distribution to any shareholder of
the bank contrary to any provision of Article 3 (commencing with
Section 640) or any provision of Sections 501, 502, and 503 of the
Corporations Code, to the same extent as a creditor of the bank who
did not consent to the illegal distribution and who had a valid claim
against the bank which that arose prior
to the time of the illegal distribution , and
which exceeded the amount of the illegal
distribution, may bring the action in the name of the bank.
(c) As an alternative to the action provided for in subdivision
(b), the commissioner my may levy a
civil penalty against the bank pursuant to Section 216.3.
SEC. 163. Section 1800 of the Financial Code is amended to read:
1800. (a) It is the intent of the Legislature in enacting this
chapter to protect the people of this state from being victimized by
unscrupulous practices by persons receiving money for transmission to
foreign countries and to establish a minimum level of fiscal
responsibility and corporate integrity for all entities engaging in
the business of receiving money for transmission to foreign countries
without regard to the method of transmission.
(b) The Legislature finds and declares that California has a large
and diverse population , many of whom are concerned with
the financial plight of people remaining in the countries
which that they left. Many of these people are
not familar familiar with the varied
and intricate financial systems of this state and due to language
barriers and other obstacles do not have access to entities offering
legitimate money transmission services. In an effort to transmit
money to their friends and relatives, these persons give their money
to persons under the precept that the money or its equivalent will be
immediately transmitted to the designated foreign country. The
money is frequently misappropriated or never transmitted. The victims
of these practices are generally not aware of the law enforcement
services available to help them, thus this unlawful conduct goes
unreported.
SEC. 164. Section 5303 of the Financial Code is amended to read:
5303. Any officer, director, employee, or agent of any
association (a) who (a) willfully makes
or knowingly concurs in the making or publishing of a false or
untrue material entry in any book, record, report, statement
concerning the business or affairs of the association, or statement
of condition or in connection with any transaction of the
association, with intent to deceive any officer or director thereof,
or with intent to deceive any agency or examiner, whether private or
public, employed or lawfully appointed to examine into the
assocation's association's condition or to
examine into any of the association's affairs or transactions, or
with intent to deceive any public officer, office, or board to which
the association is required by law to report or which
that has authority by law to examine into the
association's affairs or transactions or ,
(b) who, with like intent, willfully omits
to make a material new entry of any matter particularly pertaining to
the business, property, condition, affairs, transactions, assets, or
accounts of the association in any appropriate book, record, report,
or statement of the association, which entry is required to be made
by law or generally accepted accounting principles applicable to a
savings institution, or (c) who, with like intent,
willfully alters, abstracts, conceals, refuses to allow to be
inspected by the commissioner or the commissioner's deputies or
examiners, or destroys any books, records, reports, or statements of
the association made, written, or kept, or required to be made,
written, or kept by him or her or under his or her direction, shall
be punished by a fine of not more than one million dollars
($1,000,000), by imprisonment in the state prison for 2, 3,
or 4 two, three, or four years, or by both that
fine and imprisonment.
SEC. 165. Section 6503 of the Financial Code is amended to read:
6503. (a) No association or subsidiary thereof, without the
prior written consent of the commissioner, shall enter into either of
the following:
(1) Any transaction or modification of any transaction with an
affiliated person to buy, lease, or sell real or personal property,
or take that property by gift.
(2) Any consulting contracts or contracts for services with an
affiliated person.
(b) As a condition to approving a transaction specified in
subdivision (b) (a) , the commissioner
shall make both of the following findings:
(1) The terms of the transaction are fair to, and in the best
interests of, the savings association or subsidiary. In the case of
real or personal property transactions, this finding shall be
supported by an appraisal not prepared by an affiliated person or
employee of the association or subsidiary.
(2) The transaction was approved in advance by a resolution duly
adopted with full disclosure by at least a majority (with
, with no director having an interest in the
transaction voting) voting, of the
entire board of directors of the association or subsidiary
(or , or alternatively , by a
majority of the total votes eligible to be cast by the voting members
or stockholders of the association at a meeting called for that
purpose, with no votes cast by proxies not solicited for that
purpose) purpose . For purposes of this
subdivision, "full disclosure" shall include, but not be limited to,
(A) the affiliated person's source of financing for any real
property involved in the transaction and (B) whether the association
or any subsidiary thereof has a deposit relationship with any
financial institution or holding company or affilite
affiliate thereof providing the financing.
SEC. 166. Section 7263 of the Financial Code is amended to read:
7263. Bonds of any other political subdivision, public
corporation, or district of the State of California (herein referred
to generally as public corporations) having the power, without limit
as to rate or amount, to levy taxes to pay the principal and interest
of those bonds upon all property within its boundaries subject to
taxation by the public corporation, provided
if the net direct debt of that public corporation together with
its net overlapping debt does not exceed 25 percent of the assessed
valuation of the taxable property within its boundaries according to
the last offical official equalized
county assessment roll.
SEC. 167. Section 7273 of the Financial Code is amended to read:
7273. Fixed interest railroad bonds meeting the requirements of
subdivisions (a) and (b), bonds secured by a mortgage on jointly
operated railroad facilities meeting the requirements of subdivision
(c), and railroad equipment trust certificates meeting the
requirements of subdivision (d), as follows:
(a) The railroad bonds are issued by or are assumed, guaranteed,
or provision is made unconditionally for the payment of principal and
interest on specified dates, by a solvent railroad company:
(1) Which That operates at least 500
miles of standard gauge road within the continental United States
and which that has had average annual
operating revenues of at least ten million dollars ($10,000,000)
during the five years next preceding the investment.
(2) Whose average annual balance of income available for fixed
charges for the last 15 years for which the necessary statistical
data are available, when divided by an amount equal to its fixed
charges for the last fiscal year, shall produce a quotient
which that is at least 15 percent higher than
the quotient obtained by
dividing the average annual balance of income available for fixed
charges of all class 1 railroads for the same 15 year
15- year period by an amount equal to
the fixed charges of all class 1 railroads for the last year in the
period.
(3) Whose average "balance of net income" (computed by deducting
the sum of its fixed charges and contingent interest charges for the
latest fiscal year from the average annual balance available for
fixed charges for the latest 15 years for which the necessary
statistical data are available) when divided by its average annual
railroad operating income for the same 15 year
15- year period, shall produce a quotient at
least 15 percent greater than the quotient obtained by dividing the
average balance of income of all class 1 railroads, computed in the
same manner, by the average annual railway operating income of all
class 1 railroads for the same 15 year 15-
year period.
(4) Whose average balance of income available for fixed charges
for the last three fiscal years preceding the investment (or
, or for such the
lesser number of fiscal years as that
may have elapsed since December 31, 1946)
1946, has not been less than one and one-half times its fixed
charges for the last fiscal year.
(b) The railroad bonds are secured by any of the following:
(1) A mortgage (either , either
direct or collateral) which
collateral, that shall be a first mortgage on not
less than 75 percent of the mileage subject to the mortgage.
(2) A first mortgage on terminal properties comprising the company'
s principal freight or passenger terminal in a city of not less than
250,000 population according to the latest federal or state census.
(3) A refunding mortgage on not less than 75 percent of the
railroad mileage owned or operated by the issuing company under which
bonds may be issued for retirement or refunding of all debts secured
by prior liens on all or any part of the property (other
, other than liens on equipment)
equipment, subject to the mortgage ;
provided , that if the amount
of debt senior to the refunding mortgage is not more than 50 percent
of the sum of all senior debt and the refunding mortgage ,
or that if underlying
mortgage bonds in an amount equal to at least 50 percent of the debt
outstanding under the refunding mortgage are pledged as security
under that refunding mortgage.
(4) A first mortgage on railroad property leased to and operated
by the company where if the lease
extends beyond the maturity date of the bonds and the company has
guaranteed, assumed, or committed itself under the terms of the lease
to pay principal and interest on the bonds.
(c) Bonds secured by a mortgage on jointly operated railroad
facilities shall be secured by a first mortgage on a terminal, depot,
tunnel, or bridge used by or leased to two or more railroads
which that have jointly and severally
agreed unconditionally to pay the interest and principal payment, one
of which railroads shall meet the requirements set forth in
subdivision (a).
(d) Railroad equipment trust certificates shall be issued by a
solvent class 1 railroad whose average balance of income available
for fixed charges for the last three fiscal years preceeding
preceding the investment (or
, or for such the lesser
number of fiscal years as that may
be have elapsed since December 31,
1946) 1946, shall be not less than one
and one-half times its fixed charges for the last fiscal year. Those
certificates shall be issued to provide funds for the construction or
acquisition of new standard gauge railroad equipment made with the
approval of the Interstate Commerce Commission and secured by an
equipment trust, lease, conditional sales contract, or first lien on
the equipment. The aggregate principal amount of the obligations
shall not exceed 80 percent of the purchase price of the equipment
and the certificates shall mature within 15 years of the date of
issuance in equal annual, semiannual, or monthly installments,
beginning not later than one year after the date of issuance.
(e) As used in this section, the terms "balance
of income available for fixed charges," "fixed charges," "contingent
interest," and "railway operating income" shall have the same meaning
as in the accounting reports filed by common carriers by rail
pursuant to regulations of the Interstate Commerce Commission, except
that "balance of income available for payment of fixed charges"
shall be computed before deduction of federal income of excess
profits taxes, and "fixed charges" and "contingent interest" of the
railroad shall be those charges existing as of the time the
computation is made , excluding charges with respect to
debt which that has been retired or
will be retired within six months and for the payment of which funds
have been or are contemporaneously being set aside in trust but
including charges with respect to new debt issued or in the process
of being issued.
SEC. 168. Section 7274 of the Financial Code is amended to read:
7274. Bonds and debentures of gas, electric, or gas and electric
companies meeting the requirements of subdivision (a), bonds and
debentures of telephone companies meeting the requirements of
subdivision (b), and the bonds and debentures of water companies
meeting the requirements of subdivision (c), as follows:
(a) Bonds or debentures of gas, electric, or gas and electric
companies shall be of an issue which that
originally amounted to not less than one million dollars
($1,000,000) and, if bonds, be secured by a mortgage on substantially
all of its physical property, and, if debentures, shall be issued by
a company substantially all of whose physical property is free of
mortgage and shall carry a covenant to be secured equally with any
mortgage indebtedness, except a purchase money mortgage, subsequently
issued, and both bonds and debentures shall be issued by a public
utility corporation, which does all of the following:
(1) Derives more than 50 percent of its gross operating revenue
from the business of supplying electricity, artificial gas, or
natural gas or all or any of these services, and at least 80 percent
of its gross operating revenue from all or any of the public utility
businesses enumerated in this section.
(2) Has a gross operating revenue of not less than seven million
five hundred thousand dollars ($7,500,000) for its most recent fiscal
year.
(3) Has a funded debt not exceeding two-thirds of the value of its
physical property as shown by the books of the corporation or by a
statement of a certified public accountant issued within one year,
which statement may be based upon the books of the corporation, less
the amount of any reserves for depreciation, retirement, or
amortization of such the physical
property (physical . Physical property
of a corporation shall include the physical property of a subsidiary
corporation if the corporation owns not less than 90 percent of the
outstanding voting shares of the subsidiary corporation).
corporation.
(4) Has had earnings , including earnings of
subsidiaries mentioned in paragraph (3), available for interest
payments, before deduction of state and federal taxes imposed on or
measured by income or profits, during four of the five most recent
fiscal years and during the most recent fiscal year equal to at
lease least twice the existing annual
interest charges on the corporation's total funded debt during those
respective fiscal years.
(b) Bonds or debentures of telephone companies shall be of an
issue originally amounting to at least one million dollars
($1,000,000) and, if bonds, secured by a mortgage on substantially
all of the physical property of the company , and, if
debentures, be issued by a company substantially all of whose
physical property is free of mortgage and shall carry a covenant to
be secured equally with any mortgage indebtedness, except a purchase
money mortgage, subsequently issued, and both bonds and debentures
shall be issued by a company subject to the following:
(1) The company has during its last fiscal year had gross revenues
of at least seven million five hundred thousand dollars
($7,500,000), more than 50 percent of which was derived from owned
properties used in furnishing telephone and other communication
services and at least 80 percent of its gross revenues from all or
any of the public utility businesses enumerated in this section.
(2) The funded debt does not exceed two-thirds of the value of its
physical property as shown by the books of the corporation or by a
statement of a certified public accountant issued within one year,
which statement may be based upon the books of the corporation, less
the amount of any reserves shown on the statement for depreciation,
retirement, or amortization as the physical property. Physical
property of a corporation shall include the physical property of a
subsidiary corporation if the corporation owns not less than 90
percent of the outstanding voting shares of the subsidiary
corporation.
(3) For four of the five most recent fiscal years and for the last
fiscal year has had earnings, including earnings of subsidiaries
mentioned in paragraph (2), available for the payment of interest
charges, before deduction of state and federal taxes imposed on or
measured by income or profits, at least equal to twice the interest
charges on the company's total funded debt during such
those respective fiscal years.
(c) Water company bonds or debentures shall be of an issue
originally amounting to at least one million dollars ($1,000,000) and
, if bonds, secured by a first mortgage on the company's
property, and , if debentures, issued by a company
substantially all of whose property is free of mortgage and carry a
covenant to be secured equally with any mortgage indebtedness, except
a purchase money mortgage, subsequently issued, and both bonds and
debentures shall be issued by a company subject to the following:
(1) The company is the supplier of substantially all water for
domestic use in a community or communities having a population of not
less than 25,000.
(2) The funded debt of the company does not exceed two-thirds of
the value of its physical property as shown by the published
statement of the company for its next preceding fiscal period, less
the amount of any reserves shown for depreciation, retirement, or
amortization of such the physical
property. Physical property of a corporation shall include the
physical property of a subsidiary corporation if the corporation owns
not less than 90 percent of the outstanding voting shares of the
subsidiary corporation.
(3) For four out of the five most recent fiscal year
years and for the most recent fiscal year has
had earnings , including those of subsidiaries mentioned
in paragraph (2) , available for the payment of interest
charges, before deduction of state and federal taxes imposed on or
measured by income or profits, of at least one and one-half times the
interest charges on the company's total funded debt during those
respective fiscal years.
SEC. 169. Section 7509 of the Financial Code is amended to read:
7509. (a) (1) At the time of origination, a
real estate loan may not exceed 100 percent of the market value of
security property. An association shall, by vote of its board of
directors, establish maximum loan-to-value-ratios
loan-to-value ratios for loans made on the security of
real estate, and the resolution adopting those ratios shall be
included in the minutes of the directors' meeting. Home loans, as
defined in Section 7504, made on the combined security of real estate
and savings accounts may be made in excess of the maximum
loan-to-value-ratios loan-to-value ratios
adopted pursuant to this subdivision with the excess secured by the
savings account.
(2) However, for loans orginated
originated in excess of 90 percent of the
initial appraised value of the security property, the savings account
shall consist only of funds belonging to the borrower, the borrower'
s family, or the borrower's employer, and the loans shall not exceed
the appraised value of the real estate.
(b) With respect to home loans originated or refinanced in excess
of 90 percent of the appraised value of the security property, that
part of the unpaid balance that exceeds 80 percent of the property
value shall be insured or guaranteed by a mortgage insurance company
that the Federal Home Loan Mortgage Corporation has determined to be
a "qualified private insurer."
(c) With respect to all other loans on the security of real estate
originated in excess of 90 percent of the appraised value of the
security property, an association's board of directors shall approve
each of these loans prior to its origination and that approval shall
be recorded in the minutes of its meeting.
(d) An association shall not make a loan secured by unimproved
real property if the loan-to-value ratio would exceed 80 percent of
the appraised value of the unimproved real property securing the
loan.
(e) In determining compliance with maximum loan-to-value-ratio
limitations for real estate loans, at the time of making a loan ,
an association shall add together the unpaid amount, or in the
case of a line-of-credit loan , the approved credit
limit, of all recorded loans secured by prior mortgages, liens, or
other encumbrances on the security property that would have priority
over the association's lien, and shall not make such a
the loan unless the total amount of those loans
(including , including the
one loan to be made but excluding loans
that will be paid off out of the proceeds of the new loan)
loan, does not exceed the applicable maximum
loan-to-value-ratio limitations prescribed in this subdivision. In
determining the value of the real estate security, an association
shall use the current appraised value of the security property, which
may include any expected value of improvements to be financed.
(f) "Value" for a real estate loan means the market value of the
real estate.
SEC. 170. Section 7600 of the Financial Code is amended to read:
7600. In the case of any investment made by an association in a
real estate loan, in the event all or part of the ownership of the
real estate security becomes vested in a person other than the party
or parties originally executing the security instruments ,
and provided if there is not
an agreement in writing to the contrary, an association may, without
notice to the party or parties, deal with a successsor
successor in interest to the mortgage and debt
in the same manner as with the original party or parties, and may
forbear to sue or may extend time for payment of or otherwise modify
the terms of the debt, without discharging or in any way affecting
the original liability of the party or parties or their debt.
SEC. 171. Section 12100 of the Financial Code is amended to read:
12100. This division does not apply to any of the following:
(a) Persons Any person, or
their his or her authorized agents
ag ent, doing business under license
and authority of the Commissioner of Financial Institutions
of the State of California under Division 1 (commencing
with Section 99) , or under any law of this state
or of the United States relating to banks, trust companies, building
or savings associations, industrial loan companies, personal property
brokers, credit unions, title insurance companies or underwritten
title companies (as , as defined in
Section 12402 of the Insurance Code) Code
, escrow agents subject to Division 6 (commencing with Section
17000), or finance lenders subject to Division 9 (commencing with
Section 22000).
(b) (1) Any person licensed under Chapter 14A (commencing with
Section 1851) of Division 1 or any agent of such
the person , when selling any traveler's check
(as , as defined in Section
1852) 1852, which is issued by such
the person.
(2) Any person licensed under Division 16 (commencing with Section
33000) or any agent of the person, when selling any payment
instrument (as , as defined in Section
33059) 33059, which is issued by the
person.
(c) The services of a person licensed to practice law in this
state, when the person renders services in the course of his or her
practice as an attorney-at-law, and the fees and disbursements of
such the person , whether
paid by the debtor or other person, are not charges or costs and
expenses regulated by or subject to the limitations of this chapter
; provided, these . These fees and
disbursements shall not be shared, directly or indirectly ,
with the prorater or check seller.
(d) Any transaction in which money or other property is paid to a
"joint control agent" for disbursal or use in payment of the cost of
labor, materials, services, permits, fees, or other items of expense
incurred in construction of improvements upon real property.
(e) A merchant-owned credit or creditors association, or a
member-owned or , member-controlled
, or member-directed association whose principal function
is that of servicing the community as a reporting agency.
(f) Any person licensed under Chapter 1 of
agency or service subject to Title 2.91 (commencing with Section
1812.500) of Part 6 4 of Division
2 3 of the Labor
Civil Code, when acting in any capacity for which
he or she is licensed providing services under
that part title .
(g) Any person licensed under Part 1 ,
(commencing with Section 10000) of Division 4 ,
of the Business and Professions Code, when acting in any
capacity for which he or she is licensed under that part.
(h) A common law or statutory assignment for the benefit of
creditors or the operation or liquidation of property or a business
enterprise under supervision of a creditor's committee.
(i) The services of a person licensed as a certified public
accountant or a public accountant in this state, when the person
renders services in a the course of his
or her practice as a certified public accountant or a public
accountant, and the fees and disbursements of the person, whether
paid by the debtor or other person, are not charges or costs and
expenses regulated by or subject to the limitations of this chapter
; provided, these . These
fees and disbursements shall not be shared, directly or indirectly,
with the prorater or check seller.
(j) Any person licensed under Chapter 14 (commencing with Section
1800) of Division 1 or any agent of such the
person, when selling any check or draft which
that is drawn by the person and which
is of the type described in paragraph (3) of subdivision
(a) of Section 1800.5.
(k) Any group of banks each of which is organized under the laws
of a nation other than the United States and one or more of which are
licensed by the Commissioner of Financial Institutions of
the State of California under Article 3 (commencing with
Section 1750) of Chapter 13.5 of Division 1, or any agent of
such the group, when selling any foreign
currency traveler's check (as , as
defined in Section 1852) 1852, issued
by such the group , provided
that each . Each bank that is a member of the
group is jointly and severally liable to pay such
the foreign currency traveler's check.
(l) Any transaction of the type described in Section 1854.1.
SEC. 172. Section 14402 of the Financial Code is amended to read:
14402. Every credit union may purchase and hold, either
individually or jointly with other credit unions or affiliated
organizations, a lot and building to be employed principally for the
transaction of business, and to provide for future expansion of the
facilities of such those organizations.
Any excess space which that is not
occupied by the organizations purhasing
purchasing and holding the building may be leased to the
public. The lot and building may be sold , if all
the holders of the property join in its sale.
SEC. 173. Section 18062 of the Financial Code is amended to read:
18062. An industrial loan company shall not use any advertisement
after its use has been disapproved by the commissioner and the
industrial loan company has been notified in writing of the
disapproval. Commencing July 1, 1990, the commissioner may require a
company to obtain written or oral approval of any advertisement for
investment or thrift certificates prior to publication thereof in
order to avoid false, misleading, or deceptive advertisting
advertising .
SEC. 174. Section 18415.3 of the Financial Code is amended to
read:
18415.3. (a) Whenever the net worth of an industrial loan
company, exclusive of its good will, is less than 90 percent of the
aggregate sum of its outstanding investment certificates, exclusive
of those hypothecated with the company issuing them, divided by the
fraction which that is its investment
certificates ratio permitted by the commissioner, the commissioner
shall by written order direct the company to make good the alleged
deficiency of new net worth. Pursuant
to the commissioner's orders, the company's net worth shall be at
least 100 percent of the aggregate sum of its outstanding investment
certificates, exclusive of those hypothecated with the company
issuing them, divided by the fraction which
that is its investment certificates ratio permitted by the
commissioner.
(b) If the company fails to cure the alleged deficiency of net
worth within the commissioner's specified time, not to exceed 120
days, the commissioner may take possession of the company's property
and business. If the alleged deficiency is not cured within 120 days
of the order, the commissioner shall take possession of the company's
property and business.
SEC. 175. Section 21050 of the Financial Code is amended to read:
21050. This division does not apply to any of the following:
(a) Any corporation organized for the purpose of securing credit
from any federal intermediate credit bank organized and existing
pursuant to the provisions of an act of Congress entitled
"Agricultural Credits Act of 1923."
(b) Any nonprofit cooperative corporation or association with or
without capital stock, organized or existing pursuant to the
provisions of Chapter 4, Division 6
1 (commencing with Section 54001) of Division 20
of the Food and Agricultural Code.
(c) Any person, corporation, association, syndicate, joint stock
company, or partnership, engaged exclusively in the business of
marketing agricultural, horticultural, viticultural, dairy,
livestock, poultry, and bee products on a cooperative nonprofit
basis.
SEC. 176. Section 22304 of the Financial Code is amended to read:
22304. As an alternative to the charges authorized by Section
22303, a licensee may contract for and receive charges at the greater
of the following:
(a) A rate not exceeding 1.6 percent per month on the unpaid
principal balance.
(b) A rate not exceeding five-sixths of 1 percent per month plus a
percentage per month equal to one-twelfth of the annual rate
prevailing on the 25th day of the second month of the quarter
preceding the quarter in which the loan is made, as established by
the Federal Reserve Bank of San Francisco, on advances to member
banks under Sections 13 and 13a of the Federal Reserve Act, as now in
effect or hereafter from time to time amended, or if there is no
such single determinable rate for advances, the
closest counterpart of this rate as shall be determined by the
Commissioner of Financial Insititutions of the State of
California Institutions . Charges shall be
calculated on the unpaid principal balance.
(c) This section does not apply to any loan
of a bona fide principal amount of two thousand five hundred dollars
($2,500) or more as determined in accordance with Section 22251.
SEC. 177. Section 854 of the Fish and Game Code is amended to
read:
854. Notwithstanding Section 18932 of the Government Code, the
minimum age limit for appointment to the positon
position of fish and game warden of the
California Department of Fish and Game shall be 18 years.
Any examination for the position of warden shall require a
demonstration of the physical ability to effectively carry out the
duties and responsibilities of the position in a manner
which that would not inordinately endanger the
health or safety of any warden or the health and safety of others.
SEC. 178. Section 1122 of the Fish and Game Code is amended to
read:
1122. Any claim for damages arising against the state under
Section 1121 shall be presented to the State Board of
Control California Victim Compensation and Government
Claims Board in accordance with Section 905.2 of the Government
Code, and if not covered by insurance as herein
provided pursuant to Section 1121, the claim shall be
payable only out of funds appropriated by the Legislature for
such purposes that purpose . If the
state elects to insure its liability under Section 1121, the
State Board of Control California Victim Compensation
and Government Claims Board may automatically deny
any such the claim.
SEC. 179. Section 2120 of the Fish and Game Code is amended to
read:
2120. (a) The commission, in cooperation with the State
Department of Food and Agriculture, shall
promulgate adopt regulations governing
(a) both (1) the entry, importation, possession,
transportation, keeping, confinement, or release of any and all wild
animals which that will be or
which that have been imported into this state
pursuant to the provisions of this chapter, and
(b) (2) the possession of all other
wild animals. The regulations shall be designed to prevent damage to
the native wildlife or agricultural interests of this state resulting
from the existence at large of any such
these wild animals, and to provide for the welfare of wild
animals.
(b) The regulations shall also include criteria for all of the
following:
(1) Receiving The receiving ,
processing, and issuing of a permit and conducting inspections.
(2) Contracting out inspection activities.
(3) Responding to public reports and complaints.
(4) Notification The notification of
the revocation, termination, or denial of permits, and related
appeals.
(5) The method by which the department determines that
the breeding of wild animals pursuant to a single event breeding
permit for exhibitor and or a breeding
permit is necessary and will not result in unneeded or uncared for
animals, and the means by which the criteria will be implemented and
enforced.
(6) How a responding agency will respond to an escape of a wild
animal. This shall include, but not be limited to, the establishment
of guidelines for the safe recapture of the wild animal and
procedures outlining when lethal force would be used to recapture the
wild animal.
(c) These regulations shall be developed and adopted by the
commission , on or before January 1, 2007.
SEC. 180. Section 2125 of the Fish and Game Code is amended to
read:
2125. (a) In addition to any other penalty provided by law, any
person who violates this chapter or any regulations implementing this
chapter, is subject to a civil penalty of not less than five hundred
dollars ($500) nor more than ten thousand dollars ($10,000) for each
violation. Except as otherwise provided, any violation of this
chapter or of any regulations implementing this chapter is a
misdemeanor punishable by imprisonment in the
a county jail for not more than six months, or by a fine of
not more than one thousand dollars ($1,000).
(b) The Attorney General, or the city attorney of the city or the
district attorney or county counsel of the county in which a
violation of this article occurs, may bring a civil action to recover
the civil penalty in subdivision (a) and the costs of seizing and
holding the animal listed in Section 2118, except to the extent that
those costs have already been collected as provided by subdivision
(d). The civil action shall be brought in the county in which the
violation occurs and any penalty imposed shall be transferred to the
Controller for deposit in the Fish and Game Preservation Fund in
accordance with Section 13001.
(c) In an action brought under this section, in addition to the
penalty specified in subdivision (a), the reasonable costs of
investigation, reasonable attorney's fees, and reasonable expert
witness' fees may also be recovered and those amounts shall be
credited to the same operating funds as that
those from which the expenditures for those purposes were
derived.
(d) (1) If an animal is confiscated because the animal was kept in
contravention of this chapter or any implementing regulations, the
person claiming the animal shall pay to the department or the new
custodian of the animal an amount sufficient to cover all reasonable
expenses expected to be incurred in caring for and providing for the
animal for at least 30 days, including, but not limited to, the
estimated cost of food, medical care, and housing.
(2) If the person claiming the animal fails to comply with the
terms of his or her permit and to regain possession of the animal by
the expiration of the first 30-day period, the department may
euthanize the animal or place the animal with an
appropriate wild animal facility at the end of the 30 days, unless
the person claiming the animal pays all reasonable costs of caring
for the animal for a second 30-day period before the expiration of
the first 30-day period. If the permittee is still not in compliance
with the terms of the permit at the end of the second 30-day period,
the department may euthanize the animal or place the animal in an
appropriate wild animal facility.
(3) The amount of the payments described in paragraphs (1) and (2)
of this subdivision shall be determined by the
department, and shall be based on the current reasonable costs to
feed, provide medical care for, and house the animal. If the person
claiming the animal complies with the terms of his or her permit and
regains possession of the animal, any unused portion of the payments
required pursuant to paragraphs (1) and (2) of this
subdivision shall be returned to the person claiming the
animal no later than 90 days after the date on which the person
regains possession of the animal.
SEC. 181. Section 2127 of the Fish and Game Code is amended to
read:
2127. (a) The department may reimburse eligible local entities,
pursuant to a memorandum of understanding entered into pursuant to
this section, for costs incurred by the eligible local entities in
the administration and enforcement of any provision concerning the
possession of, handling of, care for, or holding facilities provided
for, a wild animal designated pursuant to Section 2118 , by
any person .
(b) The department may enter into memorandums
memoranda of understanding with eligible local entities
for the administration and enforcement of any provision concerning
the possession of, handling of, care for, or holding facilities
provided for, a wild animal designated as such
pursuant to Section 2118, or a cat specified in Section 3005.9.
(c) The Fish and Game Commission shall adopt regulations that
establish specific criteria an eligible local entity shall meet in
order to qualify as an eligible local entity.
(d) For purpose the purposes of this
division, "eligible local entity" means a county, local animal
control officer, local humane society official, an
educational institution, or trained private individual that enters
into a memorandum of understanding with the department pursuant to
this section.
SEC. 182. Section 2150.4 of the Fish and Game Code is amended to
read:
2150.4. (a) Consistent with Section 3005.91, the department or an
eligible local entity shall inspect the wild animal facilities, as
determined by the director's advisory committee, of each person
holding a permit issued pursuant to Section 2150 authorizing the
possession of a wild animal.
(b) In addition to the inspections specified in subdivision (a),
the department or an eligible local entity, pursuant to the
regulations of the commission, may inspect the facilities and care
provided for the wild animal of any person holding a permit issued
pursuant to Section 2150 for the purpose of determining whether the
animal is being cared for in accordance with all applicable statutes
and regulations. The department shall collect an inspection fee, in
an amount determined by the department pursuant to Section 2150.2.
(c) No later than January 1, 2007, the department, in cooperation
with the committee created pursuant to Section 2150.3, shall develop,
implement, and enter into memorandums of understanding with eligible
local entities if the department elects not to inspect every wild
animal facility pursuant to subdivisions (a) and (b). Eligible local
entities shall meet the criteria established in regulations adopted
pursuant to subdivision (b) of Section 2127
2157 .
SEC. 183. Section 2765 of the Fish and Game Code is amended to
read:
2765. The California Water Commission, in any recommendation it
may make to the Congress of the United States on funding for water
projects, shall include recommendations for studies, programs, and
facilities necessary to correct fish and wildlife problems
cause caused , fully or partially, by federal
water facilities and operation, including, but not limited to, all of
the following:
(a) The Red Bluff Dam.
(b) The Trinity and Lewiston Dams.
(c) The facilities necessary to protect wildlife areas in the
Suisun Marsh and the Sacramento-San Joaquin Delta from adverse water
quality effects caused by the federal Central Valley Project.
(d) The Kesterson Reservoir and the San Luis Drain.
SEC. 184. Section 4190 of the Fish and Game Code is amended to
read:
4190. The department shall tag, brand, or otherwise identify in a
persistent and distinctive manner any large depredatory
mammal relocated by, or relocated with the approval of,
the department for game management purposes.
SEC. 185. Section 5653 of the Fish and Game Code is amended to
read:
5653. (a) The use of any vacuum or suction dredge equipment by
any person in any river, stream, or lake of this state is prohibited,
except as authorized under a permit issued to that person by the
department in compliance with the regulations adopted pursuant to
Section 5653.9. Before any person uses any vacuum or suction dredge
equipment in any river, stream, or lake of this state, that person
shall submit an application for a permit for a vacuum or suction
dredge to the department, specifying the type and size of equipment
to be used and other information as the department may require.
(b) Under the regulations adopted pursuant to Section 5653.9, the
department shall designate waters or areas wherein vacuum or suction
dredges may be used pursuant to a permit, waters or areas closed to
those dredges, the maximum size of those dredges that may be used,
and the time of year when those dredges may be used. If the
department determines, pursuant to the regulations adopted pursuant
to Section 5653.9, that the operation will not be deleterious to
fish, it shall issue a permit to the applicant. If any person
operates any equipment other than that authorized by the permit or
conducts the operation in any waters or area or at any time that is
not authorized by the permit, or if any person conducts the operation
without securing the permit, the that
person is guilty of a misdemeanor.
(c) The department shall issue a permit upon the payment, in the
case of a resident, of a base fee of twenty-five dollars ($25), as
adjusted under Section 713, when an onsite investigation of the
project size is not deemed necessary by the department, and a base
fee of one hundred thirty dollars ($130), as adjusted under Section
713, when the department deems that an onsite
investigation is necessary. In the case of a nonresident, the base
fee shall be one hundred dollars ($100), as adjusted under Section
713, when an onsite investigation is not deemed necessary, and a base
fee of two hundred twenty dollars ($220), as adjusted under Section
713, when an onsite investigation is deemed necessary.
(d) It is unlawful to possess a vacuum or suction dredge in areas,
or in or within 100 yards of waters, that are closed to the use of
vacuum or suction dredges.
SEC. 186. Section 8277 of the Fish and Game Code is amended to
read:
8277. (a) The director may extend the
dungeness Dungeness crab season in any
district or part thereof.
(b) Before extending the Dungeness crab
season, the director shall consider written findings of the
department regarding the state of the dungeness
Dungeness crab resource in the district, or part thereof,
which consider, but are not limited to, population and maturity. The
director may extend the season only if the written findings do not
conclude that the extension will damage the dungeness
Dungeness crab resource.
(c) The director shall not extend the
dungeness Dungeness crab season past
August 31 in a district, or part thereof, north of the southern
boundary of Mendocino County or past July 31 in a district, or part
thereof, south of Mendicino Mendocino
County. The director shall order closure of the season at any time
during the extension period if the director determines that further
fishing will damage the dungeness Dungeness
crab resource.
SEC. 187. Section 8278 of the Fish and Game Code is amended to
read:
8278. (a) Except as otherwise provided, no
dungeness Dungeness crab less than six
and one-quarter (61/4) inches in breadth, and no female
dungeness Dungeness crab, may be taken,
possessed, bought, or sold, except that not more than 1 percent in
number of any load or lot of dungeness
Dungeness crabs may be less than six and one-quarter (61/4)
inches in breadth but not less than five and three-quarters (53/4)
inches in breadth.
(b) Dungeness crab shall be measured by the
shortest distance through the body from edge of shell to edge of
shell directly from front of points (lateral spines).
SEC. 188. Section 8494 of the Fish and Game Code is amended to
read:
8494. (a) Commencing April 1, 2006, any vessel using bottom trawl
gear in state-managed halibut fisheries, as described in subdivision
(a) of Section 8841, shall possess a valid California halibut bottom
trawl permit that has not been suspended or revoked and that is
issued by the department authorizing the use of trawl gear by that
vessel for the take of California halibut.
(b) A California halibut bottom trawl vessel permit shall be
issued annually, commencing with the 2006 permit year. Commencing
with the 2007-08 season, in order to be eligible for that permit, an
applicant shall have been issued a California halibut bottom trawl
vessel permit in the immediately preceding permit year.
(c) The department shall not issue a California halibut bottom
trawl vessel permit pursuant to this section for use in the
California halibut fishery unless that vessel has landed a minimum of
200 pounds of California halibut and reported that landing on fish
landing receipts as being caught with bottom trawl gear in at least
one of the following:
(1) At least two of the calendar years 1995 to 2003, inclusive.
(2) At least one of the calendar years 1995 to 2003, inclusive,
and from January 1, 2004, to February 19, 2004, inclusive.
(d) Permits issued pursuant to this section may be
transferred only if at least one of the following occur:
(1) The commission adopts a restricted access program for the
fishery that is consistent with the commission's policies regarding
restricted access to commercial fisheries.
(2) Prior to the implementation of a restricted access program,
the permit is transferred to another vessel owned by the same
permitholder of equal or less capacity, as determined by the
department, and if the originally permitted vessel was lost, stolen,
destroyed, or suffered a major irreparable mechanical breakdown. The
department may not issue a permit for a replacement vessel if the
department determines that the originally permitted vessel was
fraudulently reported as lost, stolen, destroyed, or damaged. Only
the permitholder at the time of the loss, theft, destruction, or
irreparable mechanical breakdown of a vessel may apply to transfer
the vessel permit. Evidence that a vessel is lost, stolen, or
destroyed shall be in the form of a copy of the report filed with the
United States Coast Guard, or any other law enforcement agency or
fire department that conducted an investigation of the loss.
(3) Prior to the implementation of a halibut trawl restricted
access program, the commission may consider requests from a vessel
permitholder or his or her conservator or estate representative to
transfer a permit with the vessel if both of the following conditions
are met:
(A) The permitholder has died, is permanently disabled, or the
permitholder is at least 65 years of age and has decided to retire
from commercial fishing.
(B) California halibut landings contributed significantly to the
record and economic income derived from the vessel, as determined by
regulations adopted by the commission. The commission may request
information that it determines is reasonably necessary from the
permitholder or his or her heirs or estate for the purpose of
verifying statements in the request prior to authorizing the transfer
of the permit.
(e) The commission shall establish California halibut bottom trawl
vessel permit fees based on the recommendations of the department
and utilizing the guidelines outlined in subdivision (b) of Section
711 to cover the costs of administering this section. Prior to the
adoption of a restricted access program pursuant to subdivision (d),
fees may not exceed one thousand dollars ($1,000) per permit.
(f) Individuals holding a federal groundfish trawl permit may
retain and land up to 150 pounds of California halibut per trip
without a California halibut trawl permit in accordance with federal
and state regulations, including, but not limited to, regulations
developed under a halibut fishery management plan.
(g) This section shall become inoperative upon the adoption by the
commission of a halibut fishery management plan in accordance with
the requirements of Part 1.7 (commencing with Section 7050).
(h) The commission may adopt regulations to implement this
section.
SEC. 189. Section 8495 of the Fish and Game Code is amended to
read:
8495. (a) The following area is designated as the California
halibut trawl grounds:
The ocean waters lying between one and three nautical miles from
the mainland shore lying south and east of a line running due west
(270* true) from Point Arguello and north and west of a line running
due south (180*N true) from Point Mugu.
(b) Notwithstanding the provisions of
subdivision (a), the use of trawl gear for the take of fish is
prohibited in the following areas of the California halibut trawl
grounds:
(1) Around Point Arguello. The area from a line extending from
Point Arguello true west (270*) and out three miles, to a line
extending from Rocky Point true south (180*) and out three miles.
(2) Around Point Conception. From a point on land approximately
one-half mile north of Point Conception at latitude 34* 27.5'
extending seaward true west (270*) from one to three miles, to a
point on land approximately 1/2 mile east of Point Conception at
longitude 120* 27.5' extending seaward true south (180*) from one to
three miles.
(3) In the Hueneme Canyon in that portion demarked by the IMO
Vessel Traffic safety zone on NOAA/NOS Chart 18725 and from one mile
to the three mile limit of state waters.
(4) In Mugu Canyon, from Laguna point
Point , a line extending true south (180*) and out three miles,
to Point Mugu, a line extending true south (180*) and from one to
three miles.
(c) (1) Notwithstanding the provisions of
subdivision (a), commencing April 1, 2008, the following areas in the
California halibut trawl grounds shall be closed to trawling, unless
the commission finds that a bottom trawl fishery for halibut
minimizes bycatch, is likely not damaging sea floor habitat, is not
adversely affecting ecosystem health, and is not impeding reasonable
restoration of kelp, coral, or other biogenic habitats:
(A) The ocean waters lying between one and three nautical miles
from the mainland shore from a point east of a line extending seaward
true south (180*) from a point on land approximately 1/2 mile east
of Point Conception at longitude 120* 27.5' to a line extending due
south from Gaviota.
(B) The ocean waters lying between one and two nautical miles from
the mainland shore lying east of a line extending due south from
Santa Barbara Point (180*) and west of a line extending due south
from Pitas Point (180*).
(C) Except as provided in subdivision (b), the ocean waters lying
between one and three nautical miles from the mainland shore lying
south and east of a line running due west (270* true) from Point
Arguello to a line extending seaward true south (180*) from a point
on land approximately 1/2 mile east of Point Conception at longitude
120* 27.5', and from the western border of the IMO Vessel Traffic
safety zone on NOAA/NOS Chart 18725 in Hueneme Canyon running south
and east to a line running due south (180*N true) from Point Mugu.
(2) In making the finding described in paragraph (1), the
commission shall pay special attention to areas where kelp and other
biogenic habitats existed and where restoring those habitats is
reasonably feasible, and to hard bottom areas and other substrate
that may be particularly sensitive to bottom trawl impacts.
(d) Commencing January 1, 2008, the commission shall review
information every three years from the federal groundfish observer
program and other available research and monitoring information it
determines relevant, and shall close any areas in the California
halibut trawl grounds where it finds that the use of trawl gear does
not minimize bycatch, is likely damaging sea floor habitat, is
adversely affecting ecosystem health, or impedes reasonable
restoration of kelp, coral, or other biogenic habitats. The
commission shall pay special attention to areas where kelp and other
biogenic habitats existed and where restoring those habitats is
reasonably feasible, and to hard bottom areas and other substrate
that may be particularly sensitive to bottom trawl impacts in making
that finding.
(e) Notwithstanding any other provision of law, the commission
shall determine the size, weight, and configuration of all parts of
the trawl gear, including, but not limited to, net, mesh, doors,
appurtenances, and towing equipment as it determines is necessary to
ensure trawl gear is used in a sustainable manner within the
California halibut trawl grounds.
SEC. 190. Section 8610.7 of the Fish and Game Code is amended to
read:
8610.7. (a) Commencing on July 1, 1993, there shall be paid to
any person who submitted the form required by Section 7 of Article X
B of the California Constitution within the 90-day period specified
in subdivision (a) of that section, holds a permit issued pursuant to
Section 5 of Article X B, who operates in the zone established
pursuant to that article, who surrenders that permit to the
department between July 1, 1993, and January 1, 1994, inclusive, and
who agrees to permanently discontinue fishing with gill and trammel
nets within the zone, a one-time compensation consisting of the
average annual ex vessel value of the fish other than any species of
rockfish landed by a fisherman, which were taken pursuant to a valid
general gill net or trammel net permit issued pursuant to Sections
8681 and 8682 within the zone during the years 1983 to 1987,
inclusive. The department shall determine the amount of compensation
to be paid by reviewing logs and landing receipts submitted to the
department.
(b) Any person who did not submit the form required by Section 7
of Article X B of the California Constitution within the 90-day
period specified in subdivision (a) of that section, or whose claim
to compensation cannot be verified, shall not be compensated.
(c) Any person who is denied compensation by the department, as a
result of the department's failure to verify landings, may appeal
that decision to the commission.
(d) The State Board of Control California
Victim Compensation and Government Claims Board shall, prior to
the disbursement of any funds, verify the eligibility of each person
seeking compensation and the amount of the compensation to be
provided in order to ensure compliance with this section.
(e) Notwithstanding any other provision of law, any legal action
or proceeding to challenge the validity of subdivision (b) of Section
3, or of Section 7, of Article X B of the California Constitution
shall be commenced on or before April 1, 1993. In all actions brought
to challenge the validity of subdivision (b) of Section 3, or of
Section 7, of Article X B of the California Constitution, including
the hearing of any such the action on
appeal from the decision of a lower court, all courts where those
actions are filed or pending shall give preference to those actions
over all other civil actions filed or pending in that court, with
respect to setting the action for trial or hearing, and in trying or
hearing the matter, to the end that all such
of these actions shall be heard and determined as expeditiously
as possible.
(f) If subdivision (b) of Section 3, or Section 7, of Article X B
of the California Constitution is held invalid, any compensation paid
to a person pursuant to this section shall be repaid to the state.
No person shall be issued any permit or license pursuant to this
article until repayment has been made.
SEC. 191. Section 8615 of the Fish and Game Code is amended to
read:
8615. (a) (1) Within the first six months of operation pursuant
to an experimental permit and after a reasonable and concerted effort
to utilize a new type of commercial fishing gear, the permittee may
request that the experimental permit be terminated if it is
economically infeasible to harvest the target species or if
the alternative gear is impractical, inefficient, or
ineffective within the fishery or regional area selected. The
permittee shall submit copies of all landing receipts, a financial
statement setting forth the expenses and any revenue generated by the
operation of the alternative fishing gear, and a brief summary from
any observers, monitors, and employees regarding the operation of the
alternative fishing gear to the department. The department shall
review the permittee's submitted material.
(2) If the submitted material supports the claim that the new type
of commercial fishing gear utilized by the permittee was either
inefficient, impractical, or ineffective, or that it was not
economically feasible for the permittee to harvest the target
species, the department shall terminate the experimental permit and
submit its findings to the State Coastal Conservancy. Upon receiving
the department's report, the State Coastal Conservancy may terminate
the permittee's loan. If the permittee returns the collateral fishing
gear to the department, the State Coastal Conservancy shall
reimburse the permittee from the loan fund for the principal amount
of the loan repaid by the permittee. The department shall take
possession of the fishing gear for the State Coastal Conservancy,
which may resell the gear as set forth in subdivision (b)
(a) of Section 8615 8614
.
(3) If the information does not support the claim made by the
permittee, the department may still terminate the experimental
permit. The State Coastal Conservancy may terminate the remaining
balance on the loan if the permittee returns the collateral fishing
gear to the department, but the State Coastal Conservancy shall not
reimburse the permittee for previous loan payments.
(b) After six months of operation pursuant to an experimental
permit, any request to terminate the permit for the reasons set forth
in subdivision (a) shall include, in addition to the information
required by paragraph (1) of subdivision (a), an
explanantion explanation of the changed
circumstances or reasons that cause the new type of gear to become
inefficient, impractical, or ineffective or economically infeasible
to harvest the target species after the initial six-month operating
period. The department shall review the request and make its
recommendation to the State Coastal Conservancy following the
procedures set forth in subdivision (a). If the department terminates
the experimental gear permit, the State Coastal Conservancy may
terminate the remaining balance
on the loan if the permittee returns the collateral fishing gear
to the department, but it shall not reimburse the permittee for any
loan payments received. The department shall take possession of the
alternative fishing gear for the State Coastal Conservancy, which may
resell the gear as set forth in subdivision (b)
(a) of Section 8615 8614 .
SEC. 192. Section 8841 of the Fish and Game Code is amended to
read:
8841. (a) The commission is hereby granted authority over all
state-managed bottom trawl fisheries not managed under a federal
fishery management plan pursuant to the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. Sec. 1801 et seq.) or a
state fishery management plan pursuant to Part 1.7 (commencing with
Section 7050), to ensure that resources are sustainably managed, to
protect the health of ecosystems, and to provide for an orderly
transition to sustainable gear types in situations where bottom
trawling may not be compatible with these goals.
(b) The commission is hereby granted authority to manage all of
the following fisheries in a manner that is consistent with
the requirements of this section and Part 1.7 (commencing
with Section 7050):
(1) California halibut.
(2) Sea cucumber.
(3) Ridge-back, spot, and golden prawn.
(4) Pink shrimp.
(c) The commission is also granted authority over other types of
gear targeting the same species as the bottom trawl fisheries
referenced in subdivision (a) to manage in a manner that is
consistent with the requirements of Part 1.7 (commencing with Section
7050).
(d) Every commercial bottom trawl vessel issued a state permit is
subject to the requirements and policies of the federal groundfish
observer program (50 C.F.R. 660.360).
(e) The commission may only authorize additional fishing areas for
bottom trawls after it determines, based on the best available
scientific information, that bottom trawling in those areas is
sustainable, does not harm bottom habitat, and does not unreasonably
conflict with other users.
(f) It is unlawful to use roller gear more than eight inches in
diameter.
(g) Commencing April 1, 2006, it is unlawful to fish commercially
for prawns or pink shrimp, unless an approved bycatch reduction
device is used with each net. On or before April 1, 2006, the
commission shall approve one or more bycatch reduction devices for
use in the bottom trawl fishery. For purposes of this subdivision
, a rigid grate fish excluder device is the approved type
of bycatch reduction device unless the commission, the Pacific Marine
Fishery Management Council, or the National Marine Fisheries Service
determines that a different type of fish excluder device has an
equal or greater effectiveness at reducing bycatch. If the commission
does not approve a bycatch reduction device prior to April 1, 2006,
then a device that is approved by the Pacific Marine Fishery
Management Council or the National Marine Fisheries Service shall be
deemed approved by the commission.
(h) Except as provided in Section 8495 or 8842, it is unlawful to
engage in bottom trawling in ocean waters of the state.
(i) This section does not apply to the use of trawl nets pursuant
to a scientific research permit.
(j) The commission shall facilitate the conversion of bottom
trawlers to gear that is more sustainable if the commission
determines that conversion will not contribute to overcapacity or
overfishing. The commission may participate in, and encourage
programs that support, conversion to low-impact gear or capacity
reduction by trawl fleets. The department may not issue new permits
to bottom trawlers to replace those retired through a conversion
program.
(k) As soon as practicable, but not later than May 1, 2005, the
commission and the department shall submit to the Pacific Fishery
Management Council and the National Marine Fisheries Service a
request for federal management measures for the pink shrimp fishery
that the commission and the department determine are needed to reduce
bycatch or protect habitat, to account for uncertainty, or to
otherwise ensure consistency with federal groundfish management.
(l) No vessel may utilize bottom trawling gear without a state or
federal permit.
SEC. 193. Section 9023 of the Fish and Game Code is amended to
read:
9023. (a) Traps may be used
thoroughout throughout the year to take carp in
any district under the following restrictions
: set forth in subdivision (b).
(b) Traps shall not exceed six feet in
greatest dimension. They shall be made of cotton or nylon twine.
Meshes shall not be less than three and one-half inches in length,
except that fyke and bait bags may be any size mesh. Traps shall have
only a single vertical fyke opening at the top of the trap. They
shall be baited only with grain or grain products. Fish other than
carp taken in traps subject to this section shall be immediately
returned to the water.
SEC. 194. Section 13007 of the Fish and Game Code is amended to
read:
13007. (a) Notwithstanding Section 13001 and paragraph (1) of
subdivision (a) of Section 13005, commencing July 1, 2006, 33 1/3
percent of all sport fishing license fees , except license
fees collected pursuant to Section 7149.8 collected
pursuant to Article 3 (commencing with Section 7145) of Chapter 1 of
Part 2 of Division 6 , except license fees collected pursuant to
Section 7149.8, shall be deposited into the Hatchery and
Inland Fisheries Fund, which is hereby established in the State
Treasury. Moneys in the fund may be expended, upon appropriation by
the Legislature, to support programs of the Department of Fish and
Game related to the management, maintenance, and capital improvement
of California's fish hatcheries, the Heritage and Wild Trout Program,
and enforcement activities related thereto, and to support other
activities eligible to be funded from revenue generated by sport
fishing license fees.
(b) The sport fishing license fees collected and subject to
appropriation pursuant to subdivision (a) shall be used for the
following purposes:
(1) For the department's attainment of the following production
goals for state hatcheries, based on the sales of the following types
of sport fishing licenses: resident; lifetime; nonresident year;
nonresident, 10-day; 2-day; 1-day; and reduced fee.
(A) By July 1, 2007, a minimum of 2.25 pounds of released trout
per sport fishing license sold in 2006, 1.75 pounds of which must be
of catchable size or larger.
(B) By July 1, 2008, a minimum of 2.5 pounds of released trout per
sport fishing license sold in 2007, 2.0 pounds of which must be of
catchable size or larger.
(C) By July 1, 2009, and thereafter, a minimum of 2.75 pounds of
released trout per sport fishing license sold in 2008, 2.25 pounds of
which must be of catchable size or larger.
(D) The department shall attain these goals in compliance with
Fish and Game Commission trout policies concerning catchable-sized
trout stocking.
(2) To the Heritage and Wild Trout Program, two million dollars
($2,000,000), which shall be used for permanent positions and
seasonal aides in each region of the state as necessary, and other
activities necessary to the program.
(A) The funds allocated pursuant to this paragraph shall be used
to fund seven new positions for the Heritage and Wild Trout Program.
(B) In addition to the seven new positions specified in
subparagraph (A), the department may hire seasonal aides in each
region of the state to assist with the operations of the Heritage and
Wild Trout Program.
(3) The department shall, by July 1, 2011, ensure that 25 percent
of the fish produced by state fish hatcheries are used for the
purpose of initiating and managing the restoration of naturally
indigenous stocks of trout to their original California source
watersheds. This paragraph shall not be construed to prohibit the
department from using surplus fish in waters outside of their
original California source watersheds. All trout restored pursuant to
this paragraph shall be native California trout, as defined in
Section 7261. The department shall attain the 25 percent restoration
goal of this paragraph according to the following schedule:
(A) By July 1, 2009, 15 percent and at least 4
four species, not including the coastal rainbow
trout/steelhead.
(B) By July 1, 2010, 20 percent and at least 4
four species, not including the coastal rainbow
trout/steelhead.
(C) By July 1, 2011, and thereafter, 25 percent and at least
5 five species, not including the
coastal rainbow trout/steelhead.
(4) The department may hire additional staff for state fish
hatcheries, in order to comply with the requirements of
this subdivision.
(c) The department may allocate any funds under this section, not
necessary to maintain the minimums specified in subparagraphs (1) and
(3) of subdivision (b), and after the expenditure in subparagraph
(2) of subdivision (b), to the Fish and Game Preservation Fund. The
department may utilize federal funds to meet the minimums specified
in this subdivision.
(d) A portion of the moneys subject to appropriation pursuant to
subdivision (a) may be used for the purpose of obtaining
scientifically valid genetic determinations of California native
trout stocks, consistent with Theme 1 in the executive summary of the
department's Strategic Plan for Trout Management, published November
2003.
(e) The department, by July 1, 2008, and biennially thereafter,
shall report back to the fiscal and policy committees in the
Legislature on the implementation of these provisions.
SEC. 195. Section 15512 of the Fish and Game Code is amended to
read:
15512. (a) If aquatic plants or animals are destroyed pursuant to
subdivision (e) of Section 15505, the owner shall be promptly paid
from the General Fund an amount equal to 75 percent of the
replacement value of the plants or animals, less the value determined
by the department of any replacement stock provided by the
department under subdivision (b) if the claim is submitted pursuant
to Section 15513. If the replacement value is not settled between the
owner and the department, the replacement value shall be determined
by an appraiser appointed by the director and an appraiser appointed
by the owner. Appraiser's fees shall be paid by the appointing party.
Disputes between these two appraisers shall be submitted to
arbitration under the Commercial Arbitration Rules of the American
Arbitration Association.
(b) If the department provides replacement stock to an
aquaculturist whose plants or animals are destroyed pursuant to
subdivision (e) of Section 15505, the amount to be paid to the
aquaculturist pursuant to this section shall be reduced by the value
of the replacement stock, as determined by the department.
(c) The result of the arbitration or the amount settled between
the owner and the department, reduced by the value determined by the
department of any replacement stock provided under subdivision (b),
may be submitted as a claim by the owner to the Board of
Control California Victim Compensation and Government
Claims Board pursuant to Section 15513.
SEC. 196. Section 3955 of the Food and Agricultural Code is
amended to read:
3955. Claims against an association shall be presented to the
State Board of Control California Victim
Compensation and Government Claims Board in accordance with
Part 3 (commencing with Section 900) and Part 4 (commencing with
Section 940) , of Division 3.6
, of Title 1 of the Government Code.
SEC. 197. Section 4054 of the Food and Agricultural Code is
amended to read:
4054. (a) If the board of an association,
by resolution adopted by vote of two-thirds of all its members, finds
and determines that the public interest and necessity require the
acquisition of any building or improvement which
that is situated on property that is owned by the
association, in trust or otherwise, or of any outstanding rights to
such that property, with the approval
of the department and the association, such
the building, improvement, or outstanding rights may be
acquired by eminent domain pursuant to the Property Acquisition Law
, Part (Part 11 (commencing with
Section 15850) of Division 3 of Title 2 of the Government
Code Code) .
(b) The use by the association of its
property shall be considered a more necessary public use than the use
of the property by any grantee, lessee, or licensee for the purposes
which that are specified in Section
4051 of this chapter .
(c) Notwithstanding any provision
of Sections 14256 and 14792, or of Article 5 (commencing
with Section 25450) of Chapter 5 of Division 2 of Title 3 ,
of the Government Code, or Sections 10108 and 10308 of
the Public Contract Code, the board of an association
, or governing board of a county fair, by resolution
adopted by vote of two-thirds of all its members, may purchase
materials and lease equipment for not in excess of twenty thousand
dollars ($20,000) when such the
purchase or lease is made in conjunction with donated labor
construction improvements on the grounds of the association or the
county fairgrounds, respectively.
SEC. 198. Section 5774.5 of the Food and Agricultural Code is
amended to read:
5774.5. (a) In addition to
any other notice requirements of this article, if the secretary
determines that it may become necessary to use aerial application of
a pesticide in a pest eradication program over an urban area, the
secretary shall notify, as soon as it is feasible, the city and
county in that affected area of the possibility of an aerial
application.
SEC. 199. Section 13127.92 of the Food and Agricultural Code is
amended to read:
13127.92. (a) Extensions of time granted pursuant to
Section Sections 13127.3, 13127.31, and 13127.5
shall only be for the time necessary to complete the mandatory health
effects studies.
(b) Mandatory health effects studies shall be completed in
accordance with the following timetable:
(1) Forty-eight months for oncogenicity, chronic feeding, and
reproduction studies.
(2) Twenty-four months for teratogenicity and neurotoxicity
studies.
(3) Twelve months for mutagenicity studies.
(c) A deferral of suspension of registration issued pursuant to
Section 13127.5 shall be subject to an annual review by the director
and shall be limited to the time necessary to compete
complete the required studies, and shall in no
case exceed four years with the time tolling from the date that the
registrant petitioned for an extension.
(d) Any extension of time for submission of the mandatory health
effects studies granted pursuant to Section 13127.5 shall be canceled
by June 15, 1993, and the registration suspended for the affected
ingredient, if the registrant fails to initiate the required studies
by June 15, 1992.
SEC. 200. Section 14978.2 of the Food and Agricultural Code is
amended to read:
14978.2. The board may establish the Commercial Feed Inspection
Committee as an entity to administer this chapter. The committee
shall consist of eight persons appointed by the board who shall be
licensed under this chapter. The committee may, with the concurrence
of the director, appoint one additional member to the committee, who
shall be a public member. The public member shall be a citizen and
resident of California who is not subject to the licensing
requirements of this chapter, and who has no financial interest in
any person licensed under this chapter.
(b) Each member shall have an alternate member appointed in the
same manner as the member, who shall serve in the absence of the
member for whom they are designated as alternate and who shall have
all the duties and exercise the full rights and privileges of
members.
(c) The committee may appoint its own officers, including a
chairperson, one or more vice chairpersons, and other officers as it
deems necessary. The officers shall have the powers and duties
delegated to them by the committee.
(d) The members and alternate members, when acting as members,
shall serve without compensation but shall be reimbursed for expenses
necessarily incurred by them in the performance of their duties in
accordance with the rules of the State Board of Control
California Victim Compensation and Government Claims
Board .
(e) A quorum of the committee shall be five members. A vote of the
majority of the members present at a meeting at which there is a
quorum shall constitute the act of the committee.
(f) No member or alternate member, or any employee or agent
thereof, shall be personally liable for the actions of the committee
, and no such person shall be or
responsible individually in any way for errors in judgment, mistakes,
or other acts, either by commission or omission, except for his or
her own individual acts of dishonesty or crime.
SEC. 201. Section 19314 of the Food and Agricultural Code is
amended to read:
19314. The department may suspend or revoke a registration
certificate, at any time, if it finds any of the following
has occurred:
(a) The registrant has sold or offered for sale to an unlicensed
person, any inedible kitchen grease.
(b) The registrant has stolen, misappropriated, contaminated, or
damaged inedible kitchen grease or containers thereof.
(c) The registrant has violated any provision of
this article or any regulations adopted to implement this
article.
(d) The registrant has taken possession of inedible kitchen grease
from an unregistered transporter or has knowingly taken possession
of inedible kitchen grease that has been stolen.
(e) The registrant has been found to have engaged in, or aided and
abetted another person or entity in the commission of, any violation
of a statute, regulation, or order , relating to
the transportation or disposal of inedible kitchen grease, including
a violation of the federal Water Pollution Control Act (33 U.S.C.
Sec. 1251 et seq.), the Porter-Cologne Water Quality Control Act
(Chapter 1.5 (commencing with Section 13020) of Division 7 of the
Water Code), Section 5650 of the Fish and Game Code, commercial
vehicle weight limits, or commercial vehicle hours of service.
(f) For purposes of this section, "registrant" includes any
business entity, trustee, officer, director, partner, person ,
or other entity holding more than 5 percent equity, ownership,
or debt liability in the registered entity engaged in the
transportation of inedible kitchen grease.
(g) (1) The registrant may appeal the suspension or revocation
decision of the department.
(2) The department shall establish procedures for the appeals
process, to include a noticed hearing.
(3) The department may reverse a suspension or revocation upon a
finding of good cause to do so.
SEC. 202. 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 stamped with the name of the county and the
year of issue.
(b) The board of supervisors or animal control department may
authorize veterinarians to issue the licenses to owners of dogs
that who make application.
(c) The licenses shall be issued for a period of not to exceed two
years.
(d) In addition to the authority provided in subdivisions (a),
(b), and (c), 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. 203. Section 36805 of the Food and Agricultural Code is
amended to read:
36805. (a) Ice cream, frozen diary
dairy dessert, frozen dessert, sherbet, or
quiescently frozen confections when sold in package form shall be
labeled with the name, address, and zip code
ZIP Code of the manufacturer, the wholesale distributor, or the
retailer.
When
(b) If the name and address is
not that of the original milk products processing plant,
then there shall be stamped, printed, or embossed upon the
package, in a manner acceptable to the director, the plant number of
the manufacturer or packer. Any such This
plant identification shall be consistent with, and not
be more restrictive than, the National Uniform Coding
System for packaging identification of milk and milk products
processing plants.
SEC. 204. Section 39901 of the Food and Agricultural Code is
amended to read:
39901. (a) Dairy beverages are milk and
dairy food beverages resembling milk or milk products. However, dairy
beverages do not conform to the compositional standards for milk or
milk products as established in this code or Title 21 of the Code of
Federal Regulations because they contain safe and suitable
ingredients or combinations of ingredients not specified in those
standards. Dairy beverages are products intended for consumption as a
beverage. Milk or the components or of
milk shall comprise at least 15 percent of the product on a dry
matter basis or at least 2 percent on a total weight basis.
(b) For purposes of establishing compliance
with the minimum dairy ingredient criteria, dairy ingredients shall
include all products, components, and derivatives of milk, including,
but not limited to , whey and whey products and
caseinates specified in subdivision (c) of Section 135.110 of Title
21 of the Code of Federal Regulations, but excluding added lactose.
SEC. 205. Section 42684 of the Food and Agricultural Code is
amended to read:
42684. (a) It is hereby declared that the establishment and
maintenance of minimum standards of quality and maturity for fruits,
nuts, and vegetables is essential to insure
ensure that products of acceptable and marketable quality will
be available to the consumer.
(b) Any quality and maturity standards adopted by the director
pursuant to this division shall apply to the particular fruit, nut,
or vegetable involved regardless of whether the item was produced in
this state or outside of this state.
(c) The director may, upon a petition of a commercial producer or
handler that the director finds has a substantial interest in the
growing or handling of the particular fruit, nut, or vegetable
involved, hold a hearing to establish, modify, or rescind, by
regulation, quality and maturity standards for any fruits, nuts, or
vegetables.
(d) The director shall, upon a petition of 10 commercial producers
or handlers, each of whom the director finds has a separate and
substantial interest in the growing or handling of the particular
fruit, nut, or vegetable involved, or a petition by the Director of
the Department of Consumer Affairs, hold a hearing
to establish, modify, or rescind, by regulation, quality and
maturity standards for any fruits, nuts, or vegetables.
(e) In establishing, modifying, or rescinding any quality and
maturity standard for any fruit, nut, or vegetable pursuant to this
chapter, the director shall do all of the following: (1) find that
the regulation will provide the consumer with acceptable quality
fruits, nuts, and vegetables , which will also provide
stability in the marketing of these products, (2) find that the
regulation will tend to prevent waste in the production and marketing
of fruits, nuts, and vegetables, (3) consider the impact of the
regulation upon the agricultural industry, and (4) find that the
regulation is necessary to accomplish the purposes of this chapter.
(f) All regulations shall be adopted in accordance with Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code. However, the director, or to
when adopting any emergency regulations for
quality and maturity standards for any fruits, nuts, and vegetables,
shall hold a public hearing. Notice of the hearing shall be given to
all persons known to the director to be interested in the proposed
emergency regulations, not less than three days prior to such
hearing. Any such This public hearing
on emergency regulations is not in place of, and shall not preclude
the director from holding, a public hearing within 120 days after
adoption of emergency regulations to make the emergency regulations
permanent.
SEC. 206. Section 52295 of the Food and Agricultural Code is
amended to read:
52295. Members of the board shall receive no salary but may be
allowed per diem in accordance with State Board of Control
California Victim Compensation and Government Claims
Board rules for attendance at meetings and other board
activities authorized by the board and approved by the director.
SEC. 207. Section 52891.1 of the Food and Agricultural Code is
amended to read:
52891.1. (a) The board may, by resolution, determine issues that
are in the best interest of the cotton industry in the district,
which shall not be limited to the growing of cottons other than Acala
and Pima. The board shall authorize the conduct of referendums among
all the cottongrowers in the district to vote upon the issues
concerning the district. The resolution may contain provisions to
protect the quality and integrity of approved fiber and seed grown
within the district.
(b) The referendum shall be conducted by the secretary, upon the
request of the board, using information supplied by the board and
such other information as determined by the secretary, or a
referendum shall be conducted by the secretary if a petition signed
by not less than 5 percent of the qualified cottongrowers in the
district is presented to the board. The costs of any referendum
conducted pursuant to this chapter shall be paid from funds collected
pursuant to this chapter.
(c) The secretary shall find the resolution approved if either of
the following conditions are met:
(a)
(1) Not less than 65 percent of the cottongrowers
certified by the secretary who voted in that referendum, voted in
favor of the issue, and that those cottongrowers so voting represent
at least a majority of the cotton producing acreage
of all cottongrowers who voted in that
referendum.
(b)
(2 ) At least a majority of those
cottongrowers who voted in that referendum voted in favor of the
issue and that those cottongrowers so voting represent not less than
65 percent of the cotton producing acreage of all cottongrowers who
voted in that referendum. The secretary shall then so certify to the
board, which shall then make the approved resolution effective as an
order of the board within 10 days after the certification by the
secretary.
SEC. 208. Section 62069 of the Food and Agricultural Code is
amended to read:
62069. The director may establish minimum prices to be paid by
handlers to producer-handlers for milk not used by the purchasing
handler as class 1 milk. Such These
provisions may provide that such the
milk, if used in classes other than class 1 by the purchasing handler
, may be paid for at the minimum prices established by
the director for such this other usage
but which shall not be less than the prices as found by the director
to be paid by manufacturing milk plants in, or adjacent to, the area
which that use milk for similar
purposes. Such The prices shall remain
in effect only for the period during which, as determined by the
director, there is a surplus of producer-handler milk.
SEC. 209. Section 73053 of the Food and Agricultural Code is
amended to read:
73053. "Books and records" means books, records, contracts,
documents, memoranda, papers, correspondence, or other written data
pertaining to matters relating to the activities subject to
of this chapter.
SEC. 210. Section 73202 of the Food and Agricultural Code is
amended to read:
73202. This chapter, except as necessary to conduct an
implementation referendum, does not become operative until the
director finds in a referendum conducted by the director, or a person
designated by the director, that at least 40 percent of the total
number of producers from the list established by the director
pursuant to Section 73201, participated, and that he or she finds
either one of the following:
(a) Sixty-five percent or more of the producers who voted in the
referendum voted in favor of this chapter, and the producers so
voting marketed a majority of the volume of naval
navel oranges in the preceding season by all of the
producers who voted in the referendum.
(b) A majority of the producers who voted in the referendum voted
in favor of this chapter, and the producers so voting marketed 65
percent or more of the volume of navel oranges in the preceding
season by all of the producers who voted in the referendum.
SEC. 211. Section 75022 of the Food and Agricultural Code is
amended to read:
75022. "Books and records" means books, records, contracts,
documents, memoranda, papers, correspondence, or other written data
pertaining to matters relating to the activities subject to
of this chapter.
SEC. 212. Section 77373 of the Food and Agricultural Code is
amended to read:
77373. (a) Upon a finding by a two-thirds vote of the full
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
director requesting a suspension signed by 20 percent of the
producers by number who produced not less than 20 percent of the
volume of peppers in the immediately preceding marketing year, and 20
percent of the handlers by number who handled not less than 20
percent of the volume of peppers in the immediately preceding
marketing year, hold a referendum among the producers and handlers 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 the weight 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
director may prescribe additional procedures as may be 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 operation of this chapter if the
director finds either one of the following has occurred:
(1) At least 40 percent of the total number of producers from the
list established by the director have participated in the referendum:
(A) 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 peppers in the preceding
marketing year by all of the producers who voted in the referendum.
(B) 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 peppers in the preceding
marketing year by all of the producers who voted in the referendum.
(2) At least 40 percent of the total number of handlers from the
list established by the director have participated in the referendum:
(A) Sixty-five percent or more of the handlers who voted in the
referendum voted in favor or of
suspension, and the handlers so voting handled a majority of the
total quantity of peppers in the preceding marketing year by all of
the handlers who voted in the referendum.
(B) A majority of the handlers who voted in the referendum voted
in favor of suspension, and the handlers so voting handled 65 percent
or more of the total quantity of peppers in the preceding marketing
year by all of the handlers who voted in the referendum.
SEC. 213. Section 77375 of the Food and Agricultural Code is
amended to read:
77375. After the effective date of suspension, the operation of
the commission shall be concluded and any and all funds remaining
held by the commission and not required to defray the expenses of
concluding and terminating operations of the commission, shall be
returned upon a pro rata basis to all persons from whom assessments
were collected in the immediately preceding marketing year. However,
if the commission finds that the amounts so returnable are so small
as to make impractical the computation and remitting of the
prorate prorated refund to these persons, any
funds remaining after payment of all expenses of winding up and
terminating operations shall be withdrawn from the approved
depository and paid into an appropriate program conducted by the
University of California or the California State University system,
another state agency, or a federal agency which
that deals with the purposes of this chapter. If
no such an appropriate program exists
does not exist , the funds shall be paid into
the State Treasury as unclaimed trust funds.
SEC. 214. Section 77554 of the Food and Agricultural Code is
amended to read:
77554. All funds received by any person from the assessments
levied pursuant to this chapter or otherwise received by
the commission shall be deposited in banks which
that the commission may designate and shall be disbursed
by order of the commission through an agent designated by the
commission for that purpose. The agent shall be bonded by a fidelity
bond , that is executed by a surety
company authorized to transact business in this state, in favor of
the commission, in the amount of not less than twenty-five thousand
dollars ($25,000).
SEC. 215. Section 77941 of the Food and Agricultural Code is
amended to read:
77941. The state is not liable for the acts of the commission or
its contracts. Payments of all claims arising by reason of the
administration of this chapter or acts of the commission are limited
to the funds collected by the commission. No member ,
member, alternate member, employee, or agent of
the commission is personally liable for the contracts of the
commission nor is any such that person
responsible individually in any way to any producer or any other
person for errors in judgment, mistakes, or other acts, either of
commission or omission, as a principal, agent, or employee, except
for his or her own individual acts of dishonesty or crime. No member,
alternate member, employee, or agent of the commission, is
responsible individually for any act or omission of any other member,
alternate member, employee, or agent of the commission. Liability is
several and not joint, and no member, alternate member, employee, or
agent of the commission is liable for the default of any other
member, alternate member, employee, or agent of the commission.
SEC. 216. Section 800 of the Government Code is amended to read:
800. (a) In any civil action to appeal or
review the award, finding, or other determination of any
administrative proceeding under this code or under any other
provision of state law, except actions resulting from actions of the
State Board of Control California Victim
Compensation and Government Claims Board , where
if it is shown that the award, finding, or other
determination of the proceeding was the result of arbitrary or
capricious action or conduct by a public entity or an officer thereof
in his or her official capacity, the complainant if he or she
prevails in the civil action may collect from the public entity
reasonable attorney's fees, computed at one hundred dollars
($100) per hour, but not to exceed seven thousand five hundred
dollars ($7,500), where if he or she is
personally obligated to pay the fees , from the public
entity, in addition to any other relief granted or other
costs awarded.
(b) This section is ancillary only, and
shall not be construed to create a new cause of action.
Refusal
(c) The refusal by a public
entity or officer thereof to admit liability pursuant to a contract
of insurance shall not be considered arbitrary or capricious action
or conduct within the meaning of this section.
SEC. 217. Section 850.6 of the Government Code is amended to read:
850.6. (a) Whenever a public entity
provides fire protection or firefighting service outside of the area
regularly served and protected by the public entity providing
such that service, the public entity
providing such the service is liable
for any injury for which liability is imposed by statute caused by
its act or omission or the act or omission of its employee occurring
in the performance of such that fire
protection or firefighting service. Notwithstanding any other law,
the public entity receiving such the
fire protection or such firefighting service is
not liable for any act or omission of the public entity providing the
service or for any act or omission of an employee of the public
entity providing the service; but the public entity providing
such the service and the public entity
receiving such the service may by
agreement determine the extent, if any, to which the public entity
receiving such the service will be
required to indemnify the public entity providing the service.
(b) Notwithstanding any other provision of
this section, any claims against the state shall be presented to the
State Board of Control California Victim
Compensation and Government Claims Board in accordance with
Part 3 (commencing with Section 900) and Part 4 (commencing with
Section 940) of Division 3.6 of Title 1 of the Government
Code .
SEC. 218. Section 905.3 of the Government Code is amended to read:
905.3. Notwithstanding any other provision of law to the
contrary, no claim shall be submitted by a local agency or school
district, nor shall a claim be considered by the State Board
of Control California Victim Compensation and
Government Claims Board pursuant to Section 905.2, if that
claim is eligible for consideration by the Commission on State
Mandates pursuant to Article 1 (commencing with Section 17550) of
Chapter 4 of Part 7 of Division 4 of Title 2.
SEC. 219. Section 920 of the Government Code is amended to read:
920. As used in this chapter, "omnibus claim appropriation" means
an act of appropriation, or an item of appropriation in a budget
act, by which the Legislature appropriates a lump sum to pay the
claim of the State Board of Control
California Victim Compensation and Government Claims Board or
its secretary against the State state
in an amount which that the Legislature
has determined is properly chargeable to the State
state .
SEC. 220. Section 925 of the Government Code is amended to read:
925. As used in this chapter, "board" means the State
Board of Control California Victim Compensation and
Government Claims Board .
SEC. 221. Section 926.19 of the Government Code is amended to
read:
926.19. (a) Unless otherwise provided for by statute, any state
agency that fails to pay a person any undisputed payment or refund
due to that person shall be liable for interest on the undisputed
amount pursuant to this section. The interest shall be paid out of
the agency's funds and shall accrue at a rate equal to the interest
accrued in the Pooled Money Investment Account minus 1 percent over
the term that the payment or refund was held by the agency, beginning
on the 31st day after the agency provides notice to the person that
a payment or refund is owed to that person or after the agency
receives notice from the person that an undisputed payment or refund
is due. The interest shall cease to accrue on the date full payment
or refund is made.
(b) If the state agency's failure to make payment as required by
this section is the result of a dispute between the state agency and
the person to whom money is owed, interest shall begin to accrue on
the 31st day after the dispute has been settled by mutual agreement,
arbitration, or court decision. A state agency may dispute a payment
or refund if the state agency so notifies the person within 15 days
after the state agency receives notice from the person that the
payment or refund is due.
(c) If the state agency is not authorized to make a payment or
refund to a person pursuant to this section, that state agency shall
submit the claim to the Controller's office within 15 days of
receiving a claim, or shall be liable for an interest penalty
beginning on the 16th day, which shall be paid out of the state
agency's funds and shall continue to accrue until the claim is
received by the Controller's office. After the claim is forwarded to
the Controller's office, an interest penalty fee shall begin to
accrue on the 16th day after receipt by the Controller's office, and
shall be paid out of the Controller's funds. In any event, the
interest penalty shall cease to accrue on the date full payment is
made to the person.
(d) (1) In the event that If a
payment or refund is the joint responsibility of more than one state
agency, not including the Controller's office, and neither agency is
authorized to make a payment or refund, each agency shall forward the
claim to the Controller's office within 15 days of receipt. Interest
shall begin to accrue on the 16th day, pursuant to subdivision (c).
Any accrued interest shall be the responsibility of the state agency
that delays the transmittal of the claim to the Controller.
(2) If either of the responsible agencies is authorized to make a
payment or refund directly to the person, each agency shall have 15
days to transmit the claim to the other agency or pay the person.
Interest shall begin to accrue on the 16th day, and shall be the
responsibility of the agency delaying the payment process.
(e) When If a state agency is
required by this section to pay penalties that accumulate in excess
of one thousand dollars ($1,000) in one fiscal year, the head of the
state agency shall submit to the Legislature, within 60 days
following the end of the fiscal year, a written report on the actions
taken to correct the problem, including recommendations on actions
to avoid a recurrence of the problem and recommendations as to
statutory changes, if needed.
(f) A court shall award court costs and reasonable
attorney attorney's fees to the plaintiff in an
action brought pursuant to this section where
if it is found that the state agency has violated this
section. The costs and fees shall be paid by the state agency at
fault and shall not become a personal economic liability of any
public officer or employee thereof. In the case of disputed payments
or refunds, nothing in this section shall be construed as precluding
a court from awarding a prevailing party the interest accrued while
the dispute was pending.
(g) No state agency shall seek additional appropriations to pay
interest that accrues as a result of this section.
(h) No person shall receive an interest payment pursuant to this
section if it is determined that the person has intentionally
overpaid on a liability solely for the purpose of receiving interest.
(i) No interest shall accrue during any time period for which
there is no Budget Act in effect, nor on any payment or refund that
is the result of a federally mandated program or that is directly
dependent upon the receipt of federal funds by a state agency.
(j) This section shall not apply to any of the following:
(1) Payments, refunds, or credits for income tax purposes.
(2) Payment of claims for reimbursement for health care services
or mental health services provided under the Medi-Cal program,
pursuant to Chapter 7 (commencing with Section 14000) of Part 3 of
Division 9 of the Welfare and Institutions Code.
(3) Any payment made pursuant to a public social service or public
health program to a recipient of benefits under that program.
(4) Payments made on claims by the State Board of Control
California Victim Compensation and Government Claims
Board .
(5) Payments made by the Commission on State Mandates.
(6) Payments made by the Department of Personnel Administration
pursuant to Section 19823.
SEC. 222. Section 965.1 of the Government Code is amended to read:
965.1. Pursuant to Section 13909, the State Board of
Control California Victim Compensation and Government
Claims Board may delegate to the executive officer the
authority to allow a claim filed pursuant to subdivision (c) of
Section 905.2 where if the settlement
amount of that claim does not exceed fifty thousand dollars
($50,000), or to reject any claim as so described.
SEC. 223. Section 997.1 of the Government Code is amended to read:
997.1. (a) Any person may file an application with the
State Board of Control California Victim Compensation
and Government Claims Board for compensation based on personal
property loss, personal injury, or death, including noneconomic loss,
arising from the Bay Bridge or I-880 Cypress structure collapse
caused by the October 17, 1989, earthquake. Any application made
pursuant to this section shall be presented to the board no later
than April 18, 1990, on forms prescribed and provided by the board,
except that a late claim may be presented to the board pursuant to
the procedure specified by Section 911.4. Each presented application
shall be verified under penalty of perjury and shall contain all of
the following information:
(1) The name of the injured party or in the event of loss of life,
the name and age of the decedent and the names and ages of heirs as
defined in subdivision (b) of Section 377 of the Code of Civil
Procedure.
(2) An authorization permitting the board to obtain relevant
medical and employment records.
(3) A brief statement describing when, where, and how the injury
or death occurred.
(4) A statement as to whether the applicant wishes to apply for
emergency relief provided pursuant to Section 997.2.
(b) Upon receipt of an application, the board shall evaluate the
application and may require the applicant to submit additional
information or documents which that are
necessary to verify and evaluate the application. The board shall
resolve an application within six months from the date of
presentation of the application unless this period of time is
extended by mutual agreement between the board and the applicant. Any
application which that is not resolved
within this resolution period shall be deemed denied.
(c) Following resolution of an application, if the applicant
desires to pursue additional remedies otherwise provided by this
division, the applicant shall file a court action within six months
of the mailing date of the board's rejection or denial of the
application or the applicant's rejection of the board's offer.
(d) Any claim pursuant to Part 3 (commencing with Section 900)
made before or after the effective date of this part for personal
property loss, personal injury, or death resulting from the collapse
of the Bay Bridge or the I-880 Cypress structure against the State of
California, its agencies, officers, or employees, shall be deemed to
be an application under this part and subject to the provisions set
forth in this part. Additionally, any application made pursuant to
this part shall be deemed to be in compliance with Part 3 (commencing
with Section 900).
(e) Notwithstanding any other provision of law, resolution of
applications pursuant to the provisions of this part is a condition
precedent to the filing of any action for personal property loss,
personal injury, or death resulting from the collapse of the Bay
Bridge or the I-880 Cypress structure in any court of the State of
California against the State of California, its agencies, officers,
or employees. Any suit filed by an applicant in any court of this
state against the State of California or its agencies, officers, or
employees shall be stayed pending resolution of the application.
SEC. 224. Section 998.2 of the Government Code is amended to read:
998.2. (a) Any person or business may file an application with
the State Board of Control California Victim
Compensation and Government Claims Board for compensation based
on personal injury, property loss, business loss, or other economic
loss, claimed to have been incurred as a result of the Lake Davis
Northern Pike Eradication Project. Any application made pursuant to
this section shall be presented to the board in accordance with this
division. A late claim may be presented to the board pursuant to the
procedure specified by Section 911.4. Each such
application shall contain , in addition to the information
required by Section 910, all of the following:
(1) The legal name of any business claiming a loss, as well as the
names of the owners and officers of the business ; for
.
(2) For any property owner
claiming diminution of property value, the names of all persons
holding a legal interest in the property ; and the
.
(3) The name of any person
claiming to have suffered personal injury.
(2)
(4) An authorization permitting the office of the
Attorney General or its designee to obtain relevant medical,
employment, business, property, and tax records.
(3)
(5) A brief statement describing when, where, and how
the injury, loss, or diminution in market value occurred.
(b) Upon receipt of an application presented pursuant to this
section from the State Board of Control
California Victim Compensation and Government Claims Board ,
the office of the Attorney General or its designee shall examine the
application and may require the applicant to submit additional
information or documents which that are
necessary to verify and evaluate the application. The office of the
Attorney General or its designee shall attempt to resolve an
application within six months from the effective date of this part
unless this period of time is extended by mutual agreement between
the office of the Attorney General or its designee and the applicant.
Any application that does not result in a final settlement agreement
within the resolution period shall be deemed denied, allowing the
claimant to proceed with a court action pursuant to Chapter 2
(commencing with Section 945) of Part 4.
(c) The office of the Attorney General or its designee shall adopt
guidelines in consultation with one representative designated by the
City of Portola, one representative designated by the County of
Plumas, and one member of the public to be selected jointly by the
city and the county. Any guidelines so developed shall be used to
evaluate and settle claims filed pursuant to this part.
Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2, any regulations adopted thereunder by the
Attorney General in order to implement this section shall not be
subject to the review and approval of the Office of Administrative
Law, nor subject to the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340), Chapter 4 (commencing with Section
11370), Chapter 4.5 (commencing with Section 11400), and Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2).
(d) Any court action following denial of an application, including
denial pursuant to subdivision (b), shall be filed within six months
of the mailing date of the board's rejection or denial of the
application or the applicant's rejection of the board's offer
pursuant to Section 945.6 or subdivision (b) of Section 998.3.
(e) Any claim pursuant to Part 3 (commencing with Section 900)
made before or after the effective date of this part for personal
injury, property loss, business loss, or other economic loss
resulting from the Lake Davis Northern Pike Eradication Project
against the State of California, it agencies, officers, or employees,
shall be deemed to be an application under this part and is subject
to the provisions set forth in this part. Additionally, any
application made pursuant to this part shall be deemed to be in
compliance with Part 3 (commencing with Section 900).
(f) Notwithstanding any other provision of law, the resolution or
denial of an application pursuant to this part is a condition
precedent to the filing of any action for personal injury, property
damage, business loss, or other economic loss, resulting from the
Lake Davis Northern Pike
Eradication Project in any court of the State of California,
against the State of California, it agencies, officers, or
employees. Any suit filed by an applicant in any court of this state
against the State of California or its agencies, officers, or
employees shall be stayed pending resolution or denial of the
application.
SEC. 225. Section 1151 of the Government Code is amended to read:
1151. State employees may authorize deductions to be made from
their salaries or wages for payment of one or more of the following:
(a) Insurance premiums or other employee benefit programs
sponsored by a state agency under appropriate statutory authority.
(b) Premiums on National Service Life Insurance or United States
Government Converted Insurance.
(c) Shares or obligations to any regularly chartered credit union.
(d) Recurrent fees or charges payable to a state agency for a
program which that has a purpose
related to government, as determined by the Controller.
(e) The purchase of United States savings bonds in accordance with
procedures established by the Controller.
(f) Payment of charitable contributions under any plan approved by
the Board of Control California Victim
Compensation and Government Claims Board in accordance with
procedures established by the Controller.
(g) Passes, tickets, or tokens issued for a period of one month,
or more, by a public transportation system.
(h) Deposit into an employee's account with a state or federal
bank or savings and loan association located in this state, for
services offered by that bank or savings and loan association.
(i) The purchase of any investment or thrift certificate issued by
an industrial loan company licensed by this state.
SEC. 226. Section 3515.7 of the Government Code is amended to
read:
3515.7. (a) Once an employee organization is recognized as the
exclusive representative of an appropriate unit it may enter into an
agreement with the state employer providing for organizational
security in the form of maintenance of membership or fair share fee
deduction.
(b) The state employer shall furnish the recognized employee
organization with sufficient employment data to allow the
organization to calculate membership fees and the appropriate fair
share fees, and shall deduct the amount specified by the recognized
employee organization from the salary or wages of every employee for
the membership fee or the fair share fee. These fees shall be
remitted monthly to the recognized employee organization along with
an adequate itemized record of the deductions, including, if required
by the recognized employee organization, machine readable data. Fair
share fee deductions shall continue until the effective date of a
successor agreement or implementation of the state's last, best, and
final offer, whichever occurs first. The Controller shall retain,
from the fair share fee deduction, an amount equal to the cost of
administering the provisions of this section. The
state employer shall not be liable in any action by a state employee
seeking recovery of, or damages for, improper use or calculation of
fair share fees.
(c) Notwithstanding subdivision (b), any employee who is a member
of a religious body whose traditional tenets or teachings include
objections to joining or financially supporting employee
organizations shall not be required to financially support the
recognized employee organization. That employee, in lieu of a
membership fee or a fair share fee deduction, shall instruct the
employer to deduct and pay sums equal to the fair share fee to a
nonreligious, nonlabor organization, charitable fund approved by the
State Board of Control California Victim
Compensation and Government Claims Board for receipt of
charitable contributions by payroll deductions.
(d) A fair share fee provision in a memorandum of understanding
which that is in effect may be
rescinded by a majority vote of all the employees in the unit covered
by the memorandum of understanding, provided that: (1) a request for
such a the vote is supported by a
petition containing the signatures of at least 30 percent of the
employees in the unit; (2) the vote is by secret ballot; and (3) the
vote may be taken at anytime any time
during the term of the memorandum of understanding, but in no event
shall there be more than one vote taken during the term. If the board
determines that the appropriate number of signatures have been
collected, it shall conduct the vote in a manner which
that it shall prescribe. Notwithstanding this
subdivision, the state employer and the recognized employee
organization may negotiate, and by mutual agreement provide for, an
alternative procedure or procedures regarding a vote on a fair share
fee provision.
(e) Every recognized employee organization which
that has agreed to a fair share fee provision
shall keep an adequate itemized record of its financial transactions
and shall make available annually, to the board and to the employees
in the unit, within 90 days after the end of its fiscal year, a
detailed written financial report thereof in the form of a balance
sheet and an operating statement, certified as to accuracy by its
president and treasurer or comparable officers. In the event of
failure of compliance with this section, any employee in the unit may
petition the board for an order compelling this compliance, or the
board may issue a compliance order on its own motion.
(f) If an employee who holds conscientious objections pursuant to
subdivision (c) requests individual representation in a grievance,
arbitration, or administrative hearing from the recognized employee
organization, the recognized employee organization is authorized to
charge the employee for the reasonable cost of the representation.
(g) An employee who pays a fair share fee shall be entitled to
fair and impartial representation by the recognized employee
organization. A breach of this duty shall be deemed to have occurred
if the employee organization's conduct in representation is
arbitrary, discriminatory, or in bad faith.
SEC. 227. Section 3539.5 of the Government Code is amended to
read:
3539.5. (a) The Department of Personnel
Administration may adopt or amend regulations to implement employee
benfits benefits for those state
officers and employees excluded from, or not otherwise subject to,
the Ralph C. Dills Act (Chapter 10.3 (commencing with Section
3512)) .
(b) These regulations shall not be subject
to the review and approval of the Office of Administrative Law
pursuant to the Administrative Procedure Act (Chapter 3.5 (commencing
with Section 11340) of Part 1 of Division 3 of Title 2). These
regulations shall become effective immediately upon filing with the
Secretary of State.
SEC. 228. Section 3543.1 of the Government Code is amended to
read:
3543.1. (a) Employee organizations shall have the right to
represent their members in their employment relations with public
school employers, except that once an employee organization is
recognized or certified as the exclusive representative of an
appropriate unit pursuant to Section 3544.1 or 3544.7, respectively,
only that employee organization may represent that unit in their
employment relations with the public school employer. Employee
organizations may establish reasonable restrictions regarding who may
join and may make reasonable provisions for the dismissal of
individuals from membership.
(b) Employee organizations shall have the right of access at
reasonable times to areas in which employees work, the right to use
institutional bulletin boards, mailboxes, and other means of
communication, subject to reasonable regulation, and the right to use
institutional facilities at reasonable times for the purpose of
meetings concerned with the exercise of the rights guaranteed by this
chapter.
(c) A reasonable number of representatives of an exclusive
representative shall have the right to receive reasonable periods of
released time without loss of compensation when meeting and
negotiating and for the processing of grievances.
(d) All employee organizations shall have the right to have
membership dues deducted pursuant to Sections 13532 and
13604.2 45060 and 45168 of the Education Code,
until such time as an employee organization is
recognized as the exclusive representative for any of the employees
in an appropriate unit, and then such the
deduction as to any employee in the negotiating unit shall not
be permissible except to the exclusive representative.
SEC. 229. Section 3549.1 of the Government Code is amended to
read:
3549.1. All the proceedings set forth in subdivisions (a) to (d),
inclusive, shall be are exempt from
the provisions of Sections 965 and 966 35144
and 35145 of the Education Code, the Bagley-Keene Open Meeting
Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1
of Division 3 of Title 2) , and the Ralph M. Brown Act
(Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of
Title 5), unless the parties mutually agree otherwise:
(a) Any meeting and negotiating discussion between a public school
employer and a recognized or certified employee organization.
(b) Any meeting of a mediator with either party or both parties to
the meeting and negotiating process.
(c) Any hearing, meeting, or investigation conducted by a
factfinder or arbitrator.
(d) Any executive session of the public school employer or between
the public school employer and its designated representative for the
purpose of discussing its position regarding any matter within the
scope of representation and instructing its designated
representatives.
SEC. 230. Section 3572 of the Government Code is amended to read:
3572. This section shall apply only to the California State
University.
(a) The duty to meet and confer in good faith requires the parties
to begin negotiations prior to the adoption of the final budget for
the ensuing year sufficiently in advance of the adoption date so that
there is adequate time for agreement to be reached, or for the
resolution of an impasse. The California State University shall
maintain close liaison with the Department of Finance and the
Legislature relative to the meeting and conferring on provisions of
the written memoranda which that have
fiscal ramifications. The Governor shall appoint one representative
to attend the meeting and conferring, including the impasse
procedure, to advise the parties on the views of the Governor on
matters which that would require an
appropriation or legislative action, and the Speaker of the Assembly
and the Senate Rules Committee on Rules
may each appoint one representative to attend the meeting and
conferring to advise the parties on the views of the Legislature on
matters which that would require an
appropriation or legislative action.
(b) No written memoranda reached pursuant to
the provisions of this chapter which
that require budgetary or curative action by the
Legislature or other funding agencies shall be effective unless and
until such an that action has been
taken. Following execution of written memoranda of understanding, an
appropriate request for financing or budgetary funding for all
state-funded employees or for necessary legislation will
shall be forwarded promptly to the Legislature
and the Governor or other funding agencies. When memoranda require
legislative action pursuant to this section, if the Legislature or
the Governor fail to fully fund the memoranda or to take the
requisite curative action, the entire memoranda shall be referred
back to the parties for further meeting and conferring ;
provided, however, that unless the parties
may agree that provisions of the memoranda
which that are nonbudgetary and do not
require funding shall take effect whether or not the funding requests
submitted to the Legislature are approved.
SEC. 231. Section 5906 of the Government Code is amended to read:
5906. Any bonds issued by a state or local government pursuant to
this chapter, or otherwise, and the purchasers or holders thereof,
shall be exempt from the usury provisions of Section 1 of Article XV
of the California Constitution. Any loan, lease, installment sale,
investment, forbearance of money, or other agreement between a user
of the proceeds of or other moneys pledged to bonds and the issuer of
the bonds, or entered into by or on behalf of the issuer of the
bonds which that provides for the use
of the proceeds of the bonds or other moneys pledged to or securing
the bonds, and the issuer of the bonds or any person acting on its
behalf in connection with the foregoing shall be exempt from the
usuary usury provisions of Section 1 of
Article XV of the California Constitution. This section creates and
authorizes exempted classes of transactions and persons pursuant to
Section 1 of Article XV of the California Constitution.
SEC. 232. 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, provided that 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, or 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
, except that . 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 reflect
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 , except that . 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
may not be used directly or indirectly, or furnished to another, 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. Nothing in this paragraph shall be construed to
prohibit or limit a scholarly, journalistic, political, or government
use of address information obtained pursuant to this paragraph.
(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 , provided that .
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. In the
event that 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 and the Legislative Analyst's Office. The committee and
that office 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 and records of Native American places, features, and objects
described in Sections 5097.9 and 5097.993 of the Public Resources
Code maintained by, or in the possession of, the Native American
Heritage Commission, another state agency, or a local agency.
(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 If
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 the Department 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) Critical infrastructure information, as defined in Section
131(3) of Title 6 of the United States Code, that is voluntarily
submitted to the California Office of Homeland Security for use by
that office, including the identity of the person who or entity that
voluntarily submitted the information. As used in this subdivision,
"voluntarily submitted" means submitted in the absence of the office
exercising any legal authority to compel access to or submission of
critical infrastructure information. This subdivision shall not
affect the status of information in the possession of any other state
or local governmental agency.
(cc) All information provided to the Secretary of State by a
person for the purpose of registration in the Advance Health Care
Directive Registry, except that those records shall be released at
the request of a health care provider, a public guardian, or the
registrant's legal representative.
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
(29 U.S.C. Sec. 158 ) .
SEC. 233. Section 6254.26 of the Government Code is amended to
read:
6254.26. (a) Notwithstanding any provision of this chapter or
other law, the following records regarding alternative investments in
which public investment funds invest shall not be subject to
disclosure pursuant to this chapter, unless the information has
already been publicly released by the keeper of the information:
(1) Due diligence materials that are proprietary to the public
investment fund or the alternative investment vehicle.
(2) Quarterly and annual financial statements of alternative
investment vehicles.
(3) Meeting materials of alternative investment vehicles.
(4) Records containing information regarding the portfolio
positions in which alternative investment funds invest.
(5) Capital call and distribution notices.
(6) Alternative investment agreements and all related documents.
(b) Notwithstanding subdivision (a), the following information
contained in records described in subdivision (a) regarding
alternative investments in which public investment funds invest shall
be subject to disclosure pursuant to this chapter and shall not be
considered a trade secret exempt from disclosure:
(1) The name, address, and vintage year of each alternative
investment vehicle.
(2) The dollar amount of the commitment made to each alternative
investment vehicle by the public investment fund since inception.
(3) The dollar amount of cash contributions made by the public
investment fund to each alternative investment vehicle since
inception.
(4) The dollar amount, on a fiscal yearend
year -end basis, of cash distributions received by
the public investment fund from each alternative investment vehicle.
(5) The dollar amount, on a fiscal yearend
year -end basis, of cash distributions received by
the public investment fund plus remaining value of partnership assets
attributable to the public investment fund's investment in each
alternative investment vehicle.
(6) The net internal rate of return of each alternative investment
vehicle since inception.
(7) The investment multiple of each alternative investment vehicle
since inception.
(8) The dollar amount of the total management fees and costs paid
on an annual fiscal yearend year-end
basis, by the public investment fund to each alternative investment
vehicle.
(9) The dollar amount of cash profit received by public investment
funds from each alternative investment vehicle on a fiscal
yearend year-end basis.
(c) For purposes of this section, the following definitions shall
apply:
(1) "Alternative investment" means an investment in a private
equity fund, venture fund, hedge fund, or absolute return fund.
(2) "Alternative investment vehicle" means the limited
partnership, limited liability company, or similar legal structure
through which the public investment fund invests in portfolio
companies.
(3) "Portfolio positions" means individual portfolio investments
made by the alternative investment vehicles.
(4) "Public investment fund" means any public pension or
retirement system, and any public endowment or foundation.
SEC. 234. Section 6577 of the Government Code is amended to read:
6577. Funding or refunding bonds may be issued in a principal
amount sufficient to provide funds for the payment of all of the
following:
(a) All bonds to be funded or refunded by them.
(b) All expenses incident to the calling, retiring, or paying of
the outstanding bonds and the issuance of the funding or refunding
bonds, including the costs of issuing the refunding bonds
(as , as defined in Section 53550.
(c) Interest upon the funding or refunding bonds from the date of
sale to the date of payment of the bonds to be funded or refunded out
of the proceeds of the sale or the date upon which the bonds to be
funded or refunded will be paid pursuant to the call or agreement
with the holders of such bonds.
(d) Any premium necessary in the calling or retiring of the
outstanding bonds and the interest accruing on them to the date of
the call or retirement.
SEC. 235. Section 7072 of the Government Code is amended to read:
7072. For purposes of this chapter, the following definitions
shall apply:
(a) "Department" 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 department 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 former Trade and
Commerce 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
department, fulfills at least one of the following criteria:
(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 department
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 such an
enterprise zone by the department in accordance with Section
7073.
(e) "Governing body" means a county board of supervisors or a city
council, as appropriate.
(f) "High technology industries" includes, but is 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. 236. Section 7509 of the Government Code is amended to read:
7509. (a) The restrictions upon rates of
interest contained in Section 1 of Article XV of the State
California Constitution shall not apply to any
loans made by, or forbearances of, any state or local public
retirement system , including , but not limited
to, any public retirement system authorized and regulated by the
State Teachers' Retirement Law, the Public Employees' Retirement Law,
the County Employees Retirement Law of 1937, any public retirement
system administered by the Teachers Retirement Board or Board of
Administration of the Public Employees' Retirement System, or any
public retirement system acting pursuant to the laws of this state or
the laws of any local agency.
(b) For the purposes of this section,
local agency shall mean "local agency"
means county, city, city and county, district, school
district, or any public or municipal corporation, political
subdivison subdivision , or other public agency
of the state, or any instrumentality of one or more of any
such these agencies.
(c) This section creates and authorizes any
state or local retirement system as an exempt class of persons
pursuant to Section 1 of Article XV of the State
California Constitution.
SEC. 237. Section 7520 of the Government Code is amended to read:
7520. (a) Notwithstanding any other
provision of law, any public pension fund or retirement system of
this state or local agency of this state may contract with a savings
and loan association doing business in this state under terms by
which the association shall receive deposits of money from the fund
or system for a term of 12 months or longer upon the association's
agreement to offer loans for the construction of new residential
structures and related improvements, including apartment buildings or
other multiple-unit structures, in an amount equal to the amount of
the deposit, at a rate of interest equal to the rate of interest on
the deposit plus 200 basis points. The savings and loan association
may require additionally an origination fee not exceeding the amount
required by the savings and loan association for comparable loans not
subject to this section, but in no case exceeding 5 percent of the
loan amount. This fee shall not be deemed to include any expenses of
the association directly related to approving, processing, or
recording loans made pursuant to this section. Reasonable charges to
cover such those expenses may be
imposed in connection with such the
loans.
(b) Nothing in this section shall authorize
a pension fund or retirement system to make deposits at less than the
otherwise applicable rate of interest nor prohibit the fund
of or system from depositing funds with other
financial institutions or under other conditions.
SEC. 238. Section 7901 of the Government Code is amended to read:
7901. For the purposes of Article XIII B of the California
Constitution and this division:
(a) "Change in California per capita personal income" means the
number resulting when the quotient of the California personal income,
as published by the United States Department of Commerce in the
Survey of Current Business for the fourth quarter of a calendar year
divided by the civilian population of the state on January 1 of the
next calendar year, as estimated by the Department of Finance, is
divided by the similarly determined quotient for the next prior year.
For example, the change in California per capita personal income for
1979 (to be used for computing the appropriations limit for the
1980-81 fiscal year) would equal the fourth quarter 1979 personal
income divided by the January 1, 1980, population, the quotient
divided by the fourth quarter 1978 personal income divided by the
January 1, 1979, population.
(b) "Change in population" for a local agency for a calendar year
means the number resulting when the percentage change in population
between January 1 of the next calendar year and January 1 of the
calendar year in question, as estimated by the Department of Finance
pursuant to Section 2227 of the Revenue and Taxation Code for each
city and county and Section 2228 of the Revenue and Taxation Code for
each special district, plus 100, is divided by 100. For example, the
change in population for 1979 would equal the percentage change in
population between January 1, 1980, and January 1, 1979, plus 100,
the sum divided by 100. For purposes of the state's appropriations
limit, "change in population" means the number resulting when the
civilian population of the state on January 1 of the next calendar
year, as estimated by the Department of Finance, is divided by the
similarly estimated population for January 1 of the calendar year in
question. For example, the change in population for 1979 (to be used
for computing the appropriations limit for the 1980-81 fiscal year)
would equal the January 1, 1980, population divided by the January 1,
1979, population.
A city or special district may choose to use the change in
population within its jurisdiction or within the county in which it
is located. For a special district located in two or more counties,
the special district may choose to use the change in population in
the county in which the portion of the district is located which has
the highest assessed valuation. Each city and special district shall
select its change in population pursuant to this paragraph annually
by a recorded vote of the governing body of the city or special
district. A charter city and county may choose to use the change in
population provided in this paragraph or may choose to use the change
in population provided in Section 2 of Chapter 1221 of the Statutes
of 1980.
A county may choose to use any one of the following:
(1) The change in population within its jurisdiction.
(2) The change in population within its jurisdiction, combined
with the change in population within all counties having borders that
are contiguous to that county.
(3) The change in population within the incorporated portion of
the county.
(c) "Change in population" for a school district means the change
in average daily attendance between the year prior to that for which
the appropriations limit is being computed and the year for which the
appropriations limit is being computed, using the average daily
attendance as defined in Section 7906.
(d) "Change in population" for a community college district means
the number resulting when the average daily attendance reported by
the community college district for state apportionment funding
purposes computed pursuant to former Article 2 (commencing
with Section 84520) of Chapter 4 of Part 50 of the Education Code is
divided by the similarly computed average daily attendance for the
previous year.
(e) "Local agency" means a city, county, city and county, special
district, authority or other political subdivision of the state,
except a school district, community college district, or county
superintendent of schools. The term "special district" shall not
include any district which (1) existed on January 1, 1978, and did
not possess the power to levy a property tax at that time or did not
levy or have levied on its behalf, an ad valorem property tax rate on
all taxable property in the district on the secured roll in excess
of 121/2 cents per $100 one hundred dollars
($100) of assessed value for the 1977-78 fiscal year, or (2)
existed on January 1, 1978, or was thereafter created by a vote of
the people, and is totally funded by revenues other than the proceeds
of taxes as defined in
subdivision (c) of Section 8 of Article XIII B of the California
Constitution.
If a special district levied, or had levied on its behalf,
different property tax rates for the 1977-78 fiscal year depending on
which area or zone within the district boundaries property was
located, it shall be deemed not to have levied a secured property tax
rate in excess of 121/2 cents per $100 one
hundred dollars ($100) of assessed value if the total revenue
derived from the ad valorem property tax levied by or for the
district for 1977-78, divided by the total amount of taxable assessed
valuation within the district's boundaries for 1977-78, does not
exceed .00125.
(f) "School district" means an elementary, high school, or unified
school district.
(g) "Local jurisdiction" means a local agency, school district,
community college district, or county superintendent of schools.
(h) As used in Section 2 and subdivision (b) of Section 3 of
Article XIII B, "revenues" means all tax revenues and the proceeds to
a local jurisdiction or the state received from (1) regulatory
licenses, user charges, and user fees to the extent that those
proceeds exceed the costs reasonably borne by that entity in
providing the regulation, product, or service, and (2) the investment
of tax revenues as described in subdivision (i) of Section 8 of
Article XIII B. For a local jurisdiction, revenues and appropriations
shall also include subventions, as defined in Section 7903, and with
respect to the state, revenues and appropriations shall exclude
those subventions.
(i) (1) "Proceeds of taxes" shall not include proceeds to a local
jurisdiction or the state from regulatory licenses, user charges, or
user fees except to the extent that those proceeds exceed the costs
reasonably borne by that entity in providing the regulation, product,
or service.
(2) "Proceeds of taxes" also does not include the proceeds
received by a local jurisdiction from a license tax imposed pursuant
to Section 25149.5 of the Health and Safety Code or a tax or fee
imposed pursuant to Section 25173.5 of the Health and Safety Code on
the operation of a hazardous waste facility, or the proceeds received
by a local jurisdiction from a surcharge which
that is collected by a regional disposal facility, as
authorized pursuant to Section 115255 of the Health and Safety Code
to the extent that these proceeds of the license tax, tax, fee, or
surcharge are expended for costs or increased burdens on local
jurisdictions which that are associated
with the hazardous waste facility or regional disposal facility.
These costs or burdens include, but are not limited to, general fund
expenses, the improvement and maintenance of roads and bridges, fire
protection, emergency medical response, law enforcement, air and
groundwater monitoring, epidemiological studies, emergency response
training, and equipment related to the hosting of the hazardous waste
facility or regional disposal facility.
SEC. 239. Section 7907 of the Government Code is amended to read:
7907. For county superintendents of schools:
(a) "Proceeds of taxes" shall be deemed to include subventions
received from the state only if those subventions are received for
one or more of the following programs:
(1) Educational services provided directly to pupils, including,
but not limited to, the services described in subdivision (c) of
Section 1981 of, Sections 1904, 2550.2, 2551.3, 8152, 48633, 52570,
and 58804 of, and Article 1 (commencing with Section 52300) of
Chapter 9 of Part 28 of, the Education Code.
(2) Support services provided to school districts, including, but
not limited to, the services described in subdivision (b) of Section
2550 of, and Sections 1510, 2509, 2551, 2554, and 2555 of, the
Education Code.
(3) Direct services provided to school districts, as described in
subdivision (a) of Section 2550 of the Education Code.
(b) For programs identified in paragraph (1) of subdivision (a),
an amount shall be calculated equal to the appropriations made for
those programs from the proceeds of taxes for the 1978-79 fiscal
year, adjusted for the 1979 -80 and 1980-81 fiscal years by the
lesser of the change in cost of living or change in California per
capita personal income applicable to each year and by the percentage
change in average daily attendance in those programs for the 1979-80
and 1980-81 fiscal years.
(c) For all other programs operated by the county superintendent
of schools, including, but not limited to, the programs identified in
paragraphs (2) and (3) of subdivision (a), an amount shall be
calculated equal to the appropriations made for those programs from
the proceeds of taxes for the 1978-79 fiscal year, adjusted for the
1979 -80 and 1980-81 fiscal years by the lesser of the change in cost
of living or change in California per capita personal income for
each year and by the percentage change in population (as
, as defined by subdivision (d) of Section
7901) 7901, for all the districts in the
county for the 1979-80 and 1980-81 fiscal years. The "percentage
change in population" for the program identified in paragraph (3) of
subdivision (a) shall be, for purposes of this subdivision, the
percentage change in direct services average daily attendance as
calculated pursuant to sudivision subdivision
(a) of Section 2550 of the Education Code.
(d) The sum of the amounts calculated in subdivisions (b) and (c)
shall be the appropriations limit for the county superintendent for
the 1980-81 fiscal year.
(e) For the 1981-82 fiscal year and each year thereafter, the
appropriations limit for the prior year shall be adjusted by the
appropriate average daily attendance and the lesser of the change in
cost of living or California per capita personal income.
(f) For the 1981-82 fiscal year through the 1987-88 fiscal year,
state apportionments to county superintendents in excess of the
amounts in subdivision (d) or (e) shall not be considered proceeds of
taxes for a county superintendent of schools.
(g) For the 1988-89 fiscal year and each fiscal year thereafter,
the state apportionments to county superintendents which
that shall be considered "proceeds of taxes" for
a county superintendent of schools shall be equal to the lesser of
the following:
(1) The total amount of state apportionments received for that
fiscal year, excluding amounts paid for reimbursement of state
mandates in accordance with the provisions of Section 6 of Article
XIII B of the California Constitution or of Section 17561 or for
reimbursement of court or federal mandates imposed on or after
November 6, 1979.
(2) The appropriations limit for the county superintendent for
that fiscal year, less the sum of all of the following:
(A) Interest earned on the proceeds of taxes during the current
fiscal year.
(B) The 50 percent of miscellaneous funds received during the
current fiscal year which that are from
the proceeds of taxes.
(C) Locally voted taxes received during the current year, such as
parcel taxes or square foot taxes, other than for voter-approved
bonded debt.
(D) Any other local proceeds of taxes received during the current
year, such as excess bond revenues transferred to a district's
general fund pursuant to Section 15234 of the Education Code.
(E) Local proceeds of taxes received during the current fiscal
year which offset state aid.
(3) Amounts paid for court or federal mandates shall be excluded
from the appropriations limit.
SEC. 240. Section 8902 of the Government Code is amended to read:
8902. During such those times
as that a Member of the Legislature is
required to be in Sacramento to attend a session of the Legislature
and during such those times as
that a member is traveling to and from, or is in
attendance at, any meeting of a committee of which he or she is a
member or is attending to any other legislative function or
responsibility as authorized or directed by the rules of the house of
which he or she is a member or by the joint rules, he or she shall
be entitled to reimbursement of his or her living expenses at a rate
established by the State Board of Control which
California Victim Compensation and Government Claims Board that
is not less than the rate provided to federal employees
traveling to Sacramento.
SEC. 241. Section 8652 of the Government Code is amended to read:
8652. Before payment may be made by the state to any person in
reimbursement for taking or damaging private property necessarily
utilized by the Governor in carrying out his or her
responsibilities under this chapter during a state of war emergency
or state of emergency, or for services rendered at the instance of
the Governor under said those
conditions, such the person
must shall present a claim to the State
Board of Control California Victim Compensation and
Government Claims Board in accordance with the provisions of
the Government Code governing the presentation of claims against the
state for the taking or damaging of private property for public use,
which provisions shall govern the presentment, allowance, or
rejection of such the claims and the
conditions upon which suit may be brought against the state. Payment
for such property or services shall be made from
any funds appropriated by the state for such
that purpose.
SEC. 242. Section 8894.1 of the Government Code is amended to
read:
8894.1. This chapter shall not apply to potentially hazardous
(unreinforced masonry) buildings covered under Chapter 12.2
(commencing with Section 8875), any building covered under Chapter
13.4 (commencing with Section 8893), school buildings covered under
Article 3 (commencing with Section 39140)
17280) of Chapter 2 3 of Part 10.5
of the Education Code, hospital buildings covered under Chapter
1 (commencing with Section 129675) of Part 7 of Division 107 of the
Health and Safety Code, and historical buildings covered under Part
2.7 (commencing with Section 18950) of Division 13 of the Health and
Safety Code.
SEC. 243. Section 11007.6 of the Government Code is amended to
read:
11007.6. Any state agency may, subject to rules and regulations
of the Board of Control California Victim
Compensation and Government Claims Board , insure its officers
and employees not covered by Part 2.6 (commencing with Section 19815)
of Division 5 against injury or death incurred while flying on state
business in any , except regularly scheduled ,
passenger aircraft.
SEC. 244. Section 11014 of the Government Code is amended to read:
11014. (a) In exercising the powers and
duties granted to and imposed upon it, any state agency may construct
and maintain communication lines as may be necessary.
(b) In providing communications and
necessary powerlines in connection therewith
with activities under subdivision (a), the agency, with the
approval of the Department of General Services , may enter
into contracts with owners of similar facilities for use of their
facilities, such as pole lines, and provisions may be made for
indemnification and holding harmless of the owners of the
those facilities so used by
reason of this use. Insurance may be purchased by the Department of
General Services, upon request of the agency, to protect the state
against loss or expense arising out of any such
the contract.
(c) Any claim for damages arising against
the state under this section shall be presented to the State
Board of Control California Victim Compensation and
Government Claims Board in accordance with Sections 905.2 and
945.4 , and if not covered by insurance as herein
provided under subdivision (b), the claim shall
be payable only out of funds appropriated by the Legislature for
this purpose. If the state elects to insure its liability under this
section , the State Board of Control
California Victim Compensation and Government Claims Board
may automatically deny any such that
claim.
SEC. 245. Section 11030.1 of the Government Code is amended to
read:
11030.1. When a state employee not covered by Part 2.6
(commencing with Section 19815) of Division 5 dies while traveling on
official state business , the state shall, under rules
and regulations adopted by the State Board of Control
California Victim Compensation and Government Claims
Board , pay the traveling expenses necessary to return the body
to his or her official headquarters or the place of burial. This
subdivision shall not be construed to authorize the payment of the
traveling expenses, either going or returning, of one accompanying
that body.
SEC. 246. Section 11030.2 of the Government Code is amended to
read:
11030.2. Any state officer or employee not covered by Part 2.6
(commencing with Section 19815) of Division 5 when working overtime
at his or her headquarters on state business may receive his or her
actual and necessary expenses, during his or her regular
work week work week , subject to
rules and regulations adopted by the Board of Control
California Victim Compensation and
Government Claims Board limiting the amount of the expenses and
prescribing the conditions under which the expenses may be paid
; provided, however, that . However,
each state agency may determine the necessity for and limit
such these expenses of its employees in
such a manner as that
does not conflict with and is within the limitations prescribed
by the Board of Control California Victim
Compensation and Government Claims Board .
SEC. 247. Section 11031 of the Government Code is amended to read:
11031. The headquarters of elective constitutional officers
(other , other than Members
of the Legislature) Legislature, shall
be established by the filing of a written statement with the
State Board of Control California Victim Compensation
and Government Claims Board that certifies that the selected
headquarters is the place where the officer spends the largest
portion of his or her regular workdays or working time.
SEC. 248. Section 11125.7 of the Government Code is amended to
read:
11125.7. (a) Except as otherwise provided in this section, the
state body shall provide an opportunity for members of the public to
directly address the state body on each agenda item before or during
the state body's discussion or consideration of the item. This
section is not applicable if the agenda item has already been
considered by a committee composed exclusively of members of the
state body at a public meeting where interested members of the public
were afforded the opportunity to address the committee on the item,
before or during the committee's consideration of the item, unless
the item has been substantially changed since the committee heard the
item, as determined by the state body. Every notice for a special
meeting at which action is proposed to be taken on an item shall
provide an opportunity for members of the public to directly address
the state body concerning that item prior to action on the item. In
addition, the notice requirement of Section 11125 shall not preclude
the acceptance of testimony at meetings, other than emergency
meetings, from members of the public , provided, however,
that if no action is taken by the state body at
the same meeting on matters brought before the body by members of the
public.
(b) The state body may adopt reasonable regulations to ensure that
the intent of subdivision (a) is carried out, including, but not
limited to, regulations limiting the total amount of time allocated
for public comment on particular issues and for each individual
speaker.
(c) The state body shall not prohibit public criticism of the
policies, programs, or services of the state body, or of the acts or
omissions of the state body. Nothing in this subdivision shall confer
any privilege or protection for expression beyond that otherwise
provided by law.
(d) This section is not applicable to closed sessions held
pursuant to Section 11126.
(e) This section is not applicable to decisions regarding
proceedings held pursuant to Chapter 5 (commencing with Section
11500), relating to administrative adjudication, or to the conduct of
those proceedings.
(f) This section is not applicable to hearings conducted by the
State Board of Control California Victim
Compensation and Government Claims Board pursuant to Sections
13963 and 13963.1.
(g) This section is not applicable to agenda items that involve
decisions of the Public Utilities Commission regarding adjudicatory
hearings held pursuant to Chapter 9 (commencing with Section 1701) of
Part 1 of Division 1 of the Public Utilities Code. For all other
agenda items, the commission shall provide members of the public,
other than those who have already participated in the proceedings
underlying the agenda item, an opportunity to directly address the
commission before or during the commission's consideration of the
item.
SEC. 249. Section 11125.8 of the Government Code is amended to
read:
11125.8. (a) Notwithstanding Section 11131.5, in any hearing that
the State Board of Control California Victim
Compensation and Government Claims Board conducts pursuant to
Section 13963.1 and that the applicant or applicant's representative
does not request be open to the public, no notice, agenda,
announcement, or report required under this article need identify the
applicant.
(b) In any hearing that the board conducts pursuant to Section
13963.1 and that the applicant or applicant's representative does not
request be open to the public, the board shall disclose that the
hearing is being held pursuant to Section 13963.1. That disclosure
shall be deemed to satisfy the requirements of subdivision (a) of
Section 11126.3.
SEC. 250. Section 11270 of the Government Code is amended to read:
11270. As used in this article , "administrative costs"
means the amounts expended by the Legislature, Controller, and
Treasurer, the State Personnel Board, the Department of General
Services, the State Board of Control
California Victim Compensation and Government Claims Board ,
the State Department of Finance, the Office of
Administrative Law, the Department of Personnel Administration, the
Secretary of the State and Consumer Services
Agency , the Secretary of the
Business, Transportation and Housing Agency , the
Secretary of the Health and Welfare Agency
Cal ifornia Health and Human Services , the
Secretary of the Resources Agency, the Secretary of the
Youth and Adult Correctional Agency Department of
Corrections and Rehabilitation , and the California
State Library , and the Department of Information Technology
, and a proration of any other cost to or expense of the
state for services or facilities provided for the Legislature and the
above agencies, for supervision or administration of the state
government or for services to the various state agencies.
SEC. 251. Section 11275 of the Government Code is amended to read:
11275. If, upon receipt of the statement provided in Section
11274, the state agency does not have funds available by law for the
payment of the administrative costs, or if it has any other reason
why the payment of those costs should not be made at the time
specified on the statement, the state agency shall, prior to the
expiration of the 30-day period referred to in the statement, file
with the Controller, in duplicate, a written request to defer payment
of those administrative costs, which request shall set forth the
reasons why that payment should be deferred. Upon receipt of any
request filed because of lack of availability of funds, the
Controller shall forthwith transmit one copy of that request to the
Department of Finance ; and shall defer action to
effect the transfer of funds covering the administrative costs
referred to in the request until the transfer has been approved by
the Director of Finance. The Department of Finance shall notify the
Controller of the approval of the deferral request. Upon receipt of
any request filed because of any reason other than lack of
availability of funds, the Controller shall forthwith transmit one
copy of that request to the Board of Control;
California Victim Compensation and Government Claims Board and
shall defer action to effect the transfer of funds until that
transfer has been approved by the Board of Control
California Victim Compensation and Government Claims
Board .
SEC. 252. Section 12467 of the Government Code is amended to read:
12467. (a) (1) The Legislature finds and declares that the
General Fund has experienced significant deficits in recent years due
to economic factors and extraordinary demand for public services
supported by the General Fund. In order to meet the cash needs of the
state , it has been necessary to obtain external loans.
The Legislature desires to provide a specific mechanism to eliminate
chronic General Fund cash deficits, provide fiscal stability ,
and facilitate temporary, short-term borrowing.
(2) For purposes of this section, "unused borrowable resources,"
as of any date, means total available borrowable resources on that
date less total cummulative cumulative
loan balances on that date.
(b) On November 15, 1994, the Controller shall provide a detailed
report to the Legislature and the Governor of the estimated cash
condition of the General Fund for the 1994-95 fiscal year. The
Legislative Analyst shall prepare an analysis of General Fund
revenues and expenditures for the 1994-95 fiscal year for use by the
Controller in the estimate of the 1994-95 General Fund cash
condition. The Legislative Analyst shall review the Controller's
estimate of the General Fund cash condition and within five working
days shall advise the Controller, the Treasurer, the Chairperson of
the Joint Legislative Budget Committee, and the Director of Finance
whether that estimate reasonably reflects anticipated expenditures
and revenues during the fiscal year. The Controller's report shall
identify the amount of any 1995 cash shortfall, as set forth in this
subdivision. To that end, the Controller shall identify the projected
amount by which the unused borrowable resources on June 30, 1995,
will differ from the unused borrowable resources on June 30, 1995, as
indicated in the cash-flow cash flow
analysis included in the official statement accompanying the sale of
the July 1994 revenue anticipation warrants. If the Controller's
report identifies a decrease in the unused borrowable resources on
June 30, 1995, of more than four hundred thirty million dollars
($430,000,000), then the 1995 cash shortfall shall be the amount of
the difference that exceeds four hundred thirty million dollars
($430,000,000). On or before January 10, 1995, the Governor shall
propose legislation providing for sufficient General Fund expenditure
reductions, revenue increases, or both, to offset the amount of the
estimated 1995 cash shortfall as reported by the Controller. This
legislation, or legislation providing equivalent expenditure
reductions, revenue increases, or both, shall be enacted on or before
February 15, 1995.
(c) The Director of Finance shall include updated
cash-flow cash flow statements for
the 1994 -95 and 1995-96 fiscal years in the May revision to the
budget proposal for the 1995-96 fiscal year submitted to the
Legislature pursuant to Section 13308. The revised budget proposal
for the 1995-96 fiscal year shall not result in any projected
negative amount of unused borrowable resources as of June 30, 1996.
By June 1, 1995, the Controller shall concur with those updated
statements or provide a report to the Governor and the Legislature
identifying specific corrections, objections, or concerns and the
Controller's estimate of the cash condition of the General Fund for
the 1994-95 and 1995-96 fiscal years. If the Controller identifies
any projected negative amount of unused borrowable resources as of
June 30, 1996, then the Governor shall propose additional General
Fund expenditure reductions, revenue increases, or both, to eliminate
that cash shortfall. The enacted budget shall not result in any
projected negative unused borrowable resources as of June 30, 1996.
(d) On October 15, 1995, the Controller shall provide a detailed
report to the Legislature and the Governor of the estimated cash
condition of the General Fund for the 1995-96 fiscal year. The
Legislative Analyst shall prepare an analysis of General Fund
revenues and expenditures for the 1995-96 fiscal year for use by the
Controller in the estimate of the 1995-96 General Fund cash
condition. The Legislative Analyst shall review the Controller's
estimate of the General Fund cash condition and within five working
days shall advise the Controller, the Treasurer, the Chairperson of
the Joint Legislative Budget Committee, and the Director of Finance
whether that estimate reasonably reflects anticipated expenditures
and revenues during the fiscal year. The Controller's report shall
identify the amount of any 1996 cash shortfall, as set forth in this
subdivision. The Controller shall identify the projected amount of
unused borrowable resources as of June 30, 1996. If the Controller's
report identifies a negative amount of unused borrowable resources as
of June 30, 1996, then the 1996 cash shortfall shall be the amount
necessary to bring the balance of unused borrowable resources on June
30, 1996, to zero. Within 10 days of the Legislative Analyst's
review, the Governor shall propose legislation providing for
sufficient General Fund expenditure reductions, revenue increases, or
both, to offset the estimated 1996 cash shortfall as reported by the
Controller. This legislation, or legislation providing equivalent
expenditure reductions, revenue increases, or both, shall be enacted
on or before December 1, 1995.
(e) (1) If the legislation required by subdivision (b) is not
enacted, within five days the Director of Finance shall reduce all
General Fund appropriations for the 1994-95 fiscal year, except those
required by subdivision (b) of Section 8 of Article XVI, Section 25
of Article XIII, Section 6 of Article XIII B, or any other provision
of the California Constitution, and general obligation debt service,
or law of the United States, by the percentage equal to the ratio of
the 1995 cash shortfall to total remaining General Fund
appropriations for the 1994 -95 fiscal
year, after excluding the appropriations that are not
subject to reduction.
(2) If the legislation required by subdivision (d) is not enacted,
within five days the Director of Finance shall reduce all General
Fund appropriations for the 1995-96 fiscal year, except those
required by subdivision (b) of Section 8 of Article XVI, Section 25
of Article XIII, Section 6 of Article XIII B, or any other provision
of the California Constitution, and General Obligation
any general obligation debt service, or law of
the United States, by the percentage equal to the ratio of the 1996
cash shortfall to total remaining General Fund appropriations for the
1995-96 fiscal year, after excluding the appropriations that are not
subject to reduction.
(3) Notwithstanding any other provision of law, in the
event if a General Fund appropriation that is
reduced pursuant to paragraph (1) or (2) is for a program under which
individuals other than an officer or employee of the state receive
an amount determined pursuant to statute, whether that amount is an
entitlement or not, that amount shall be reduced by the same
percentage as the General Fund appropriation from which that payment
is made is reduced.
(f) The State of California hereby pledges to and agrees with the
holders of any registered reimbursement warrants and any revenue
anticipation notes issued in July 1994, and any banking institutions
that provide credit support for these warrants or notes, that the
state will not limit or alter the obligation hereby required of the
state by this section until the registered reimbursement warrants and
revenue anticipation notes, together with interest thereon, are
fully met and discharged.
SEC. 253. Section 12807.5 of the Government Code is amended to
read:
12807.5. The Secretary of the Resources Agency, in reviewing
projects pursuant to Sections 5096.87 and 5096.128 of the Public
Resources Code, shall consider the arborescent prototype park project
of the Southgate Recreation and Park District in Sacramento County.
It is the intent of the Legislature that, if the secretary deems
that project to be among projects of highest priority and there are
insufficient money moneys available
under the Z'berg-Collier Park Bond Act and the Nejedly-Hart State,
Urban, and Coastal Park Bond Act of 1976 to fund a one hundred
seventy-two thousand dollar ($172,000) grant to the district for that
project, any deficiency in that grant be made from other available
sources.
SEC. 254. Section 12838.1 of the Government Code is amended to
read:
12838.1. (a) There is hereby created within
the Department of Corrections and Rehabilitation, under the Chief
Deputy Secretary for Adult Operations, the Division of Adult
Institutions and the Division of Adult Parole Operations. Each
division shall be headed by a division chief, who shall be appointed
by the Governor, upon recommendation of the secretary, subject to
Senate confirmation, who shall serve at the pleasure of the Governor.
(b) The Governor shall, upon recommendation of the secretary,
appoint five subordinate officers to the Chief of the Division of
Adult Institutions, subject to Senate confirmation, who shall serve
at the pleasure of the Governor. Each subordinate officer appointed
pursuant to this subdivision shall oversee an identified category of
adult institutions, one of which shall be female offender facilities.
SEC. 255. Section 13300 of the Government Code is amended to read:
13300. (a) The department shall devise, install, supervise, and,
at its discretion, revise and modify, a modern and complete
accounting system for each agency of the state permitted or charged
by law with the handling of public money or its equivalent, to the
end that all revenues, expenditures, receipts, disbursements,
resources, obligations, and property of the state be properly,
accurately, and systematically accounted for and that there shall be
obtained accurate and comparable records, reports, and statements of
all the financial affairs of the state.
(b) This system shall be of a nature so as to permit a comparison
of budgeted expenditures, actual expenditures , and
encumbrances and payables, as defined by the California Fiscal
Advisory Board, and estimated revenue to actual revenue, which is
compatible with a budget coding system, developed by the department.
In addition, the system shall provide for a federal revenue
accounting system with cross-references of federal fund sources to
state activities.
(c) This system shall include a cost accounting system
which that accounts for expenditures by line
item, governmental unit , and fund source. The system
shall also be capable of performing program cost accounting as
required. The system and the accounts maintained by the several
agencies of the state shall be coordinated with the central accounts
maintained by the Controller, and shall provide the Controller with
all information necessary to the maintenance by the Controller of a
comprehensive system of central accounts for the entire state
government. The Controller or the Director of Finance may submit to
the State Board of Control California Victim
Compensation and Government Claims Board and the State
Board of Control California Victim Compensation and
Government Claims Board shall consider and adopt any rule or
regulation required to implement this section.
(d) The requirements of this section shall apply to departments
commencing with the second fiscal year following the fiscal year for
which funds are appropriated by the Legislature to implement
the provisions of this section. The department shall
adopt guidelines and instructions to implement the application of
this section.
SEC. 256. Section 13332.09 of the Government Code is amended to
read:
13332.09. (a) No purchase order or other form of documentation
for acquisition or replacement of motor vehicles shall be issued
against any appropriation until the Department of General Services
has investigated and established the necessity therefor.
(b) A state agency may not acquire surplus mobile equipment from
any source for program support until the Department of General
Services has investigated and established the necessity therefor.
(c) Notwithstanding any other provision of law, all contracts for
the acquisition of motor vehicles or general use mobile equipment for
a state agency shall be made by or under the supervision of the
Department of General Services. Pursuant to Section 10298 ,
the Department of General Services may collect a fee to offset
the cost of the services provided.
(d) All passenger-type motor vehicles purchased for state officers
and employees, except constitutional officers, shall be
American-made vehicles of the light class, as defined by the
State Board of Control California Victim Compensation
and Government Claims Board , unless excepted by the Director
of General Services on the basis of unusual requirements, including,
but not limited to, use by the California Highway Patrol, that would
justify the need for a motor vehicle of a heavier class.
(e) No general use mobile equipment having an original purchase
price of twenty-five thousand dollars ($25,000) or more shall be
rented or leased from a nonstate source and payment therefor made
from any appropriation for the use of the Department of
Transportation, without the prior approval of the Department of
General Services after a determination that comparable state-owned
equipment is not available, unless obtaining approval would endanger
life or property, in which case the transaction and the justification
for not having sought prior approval shall be reported immediately
thereafter to the Department of General Services.
(f) As used in this section:
(1) "General use mobile equipment" means equipment that is listed
in the Mobile Equipment Inventory of the State Equipment Council and
which that is capable of being used by
more than one state agency, and shall not be deemed to refer to
equipment having a practical use limited to the controlling state
agency only. Section 575 of the Vehicle Code shall have no
application to this section.
(2) "State agency" means a state agency, as defined pursuant to
Section 11000, and each campus of the California State University.
The University of California is requested and encouraged to have the
Department of General Services perform the tasks identified in this
section with respect to the acquisition or replacement of motor
vehicles by the University of California.
SEC. 257. Section 13905 of the Government Code is amended to read:
13905. The board shall have a seal, bearing the following
inscription: "State Board of Control."
"California Victim Compensation and Government Claims Board.
" The seal shall be fixed to all writs and authentications
of copies of records and to such other
instruments as that the board directs.
SEC. 258. Section 13972 of the Government Code is amended to read:
13972. In the event (a)
If a private citizen incurs personal injury or death or
damage to his or her property in preventing the commission of a crime
against the person or property of another, in apprehending a
criminal, or in materially assisting a peace officer in prevention of
a crime or apprehension of a criminal, or rescuing a person in
immediate danger of injury or death as a result of fire, drowning, or
other catastrophe, the private citizen, his or her surviving spouse,
his or her surviving children, a person dependent upon such
the citizen for his or her principal support,
or a public safety or law enforcement agency acting on behalf of any
of the above may file a claim with the State Board of
Control California Victim Compensation and Government
Claims Board for indemnification to the extent that the
claimant is not compensated from any other source for such
the injury, death, or damage. The claim shall
generally show all of the following :
(a)
(1) The date, place , and other
circumstances of the occurrence or events which
that gave rise to the claim ; .
(b)
(2) A general description of the activities of the
private citizen in prevention of a crime, apprehension of a criminal,
or rescuing a person in immediate danger of injury or death as a
result of fire, drowning, or other catastrophe ;
.
(c)
(3) The amount or estimated amount of the injury,
death, or damage sustained for which the claimant is not compensated
from any other source, insofar as it may be known at the time of the
presentation of the claim ; .
(d) Such
(4) Any other information
as that the Board of Control
California Victim Compensation and Government Claims
Board may require.
The
(b) A claim filed under
subdivision (a) shall be accompanied by a corroborating
statement and recommendation from the appropriate state or local
public safety or law enforcement agency.
SEC. 259. Section 13973 of the Government Code is amended to read:
13973. (a) Upon presentation of
any such a claim pursuant to this chapter
, the Board of Control California
Victim Compensation and Government Claims Board shall fix a
time and place for the hearing of the claim, and shall mail notices
thereof of the hearing to interested
persons or agencies. At the hearing, the board shall receive
recommendations from public safety or law enforcement agencies, and
evidence showing all of the following :
(a)
(1) The nature of the crime committed by the
apprehended criminal or prevented by the action of the private
citizen, or the nature of the action of the private citizen in
rescuing a person in immediate danger of injury or death as a result
of fire, drowning, or other catastrophe, and the circumstances
involved ; .
(b)
(2) That the actions of the private citizen
substantially and materially contributed to the apprehension of a
criminal, the prevention of a crime, or the rescuing of a person in
immediate danger of injury or death as a result of fire, drowning, or
other catastrophe ; .
(c)
(3) That as a direct consequence, the private citizen
incurred personal injury or damage to property or died ;
.
(d)
(4) The extent of such the
injury or damage for which the claimant is not compensated from
any other source ; .
(e) Such
(5) Any other evidence
as that the board may require.
(b) If the board determines, on the basis of
a preponderance of such the evidence,
that the state should indemnify the claimant for the injury, death,
or damage sustained, it shall approve the claim for payment. In no
event shall a claim be approved by the board under this article in
excess of ten thousand dollars ($10,000).
(c) In addition to any award made under this
article chapter , the board may award,
as attorney's fees, an amount representing the reasonable value of
legal services rendered a claimant, but in no event to exceed 10
percent of the amount of the award. No attorney shall charge, demand,
receive, or collect for services rendered in connection with any
proceedings under this article chapter
any amount other than that awarded as attorney's fees under this
section. Claims approved under this article
chapter shall be paid from a separate appropriation made to the
State Board of Control California Victim
Compensation and Government Claims Board in the Budget Act and
as such the claims are approved by the
board.
SEC. 260. Section 13974 of the Government Code is amended to read:
13974. The Board of Control California
Victim Compensation and Government Claims Board is hereby
authorized to make all needful rules and regulations consistent with
the law for the purpose of carrying into effect the
provisions of this article.
SEC. 261. Section 13974.1 of the Government Code is amended to
read:
13974.1. (a) The board shall utilize the provisions of this
article, insofar as they may be made applicable, to establish a claim
and reward procedure to reward persons providing information leading
to the location of any child listed in the missing children registry
compiled pursuant to former Section 11114 of the Penal
Code or maintained pursuant to the system maintained pursuant to
Sections 14201 and 14202 of the Penal Code .
(b) Awards shall be made upon recommendation of the Department of
Justice in an amount of not to exceed five hundred dollars ($500) to
any one individual. However, as a condition to an award, in any
particular case, an amount equal to or greater in nonstate funds
shall have been first offered as a reward for information leading to
the location of that missing child.
(c) The Missing Children Reward Fund is hereby created in the
State Treasury and is continuously appropriated to the State
Board of Control California Victim Compensation and
Government Claims Board to make awards pursuant to this
section.
SEC. 262. Section 14084 of the Government Code is amended to read:
14084. If at any time, in carrying out any agreement made
pursuant to Section 14081, the required payment of reimbursements
becomes a matter in dispute which that
cannot be resolved by the governing body and the director, it shall
be brought before the State Board of Control
California Victim Compensation and Government Claims Board ,
which shall conduct the necessary audits and interviews to determine
the facts, hear both parties to the dispute, and make a final
determination as to the reimbursement actually due.
SEC. 263. Section 14670.4 of the Government Code is amended to
read:
14670.4. (a) The Director
of General Services may, subject to the approval of the State Public
Works Board, enter into an agreement or agreements whereby the state
will acquire all interest of its concessionaire at Squaw Valley, the
Squaw Valley Improvement Corporation, in exchange for an
approximately 400-acre portion of land at the former Stockton State
Hospital farm declared surplus by the Legislature in 1953, the sale
of an additional portion of such the
land, and an option to purchase the remaining portion for its fair
market value.
SEC. 264. Section 14682 of the Government Code is amended to read:
14682. (a) Final determination of the use of existing state-owned
and state-leased facilities that are currently under the
jurisdiction of the Department of General Services by state agencies
shall be made by the Department of General Services.
(b) A request of an agency that is required to be made to and
approved by the Department of General Services to acquire new
facilities through lease, purchase, or construction shall first
consider the utilization of existing state-owned, state-leased, or
state-controlled facilities before considering the leasing of
additional facilities on behalf of a state agency. If no available
appropriate state facilities exist, the Department of General
Services shall procure approved new facilities for the agency that
meets meet the agency's needs using
cost efficiency as a primary criterion, among other agency-specific
criteria, as applicable.
(c) When tenant state agencies located in existing state-owned or
state-leased facilities vacate their premises, they shall continue
paying rent for the facilities unless and until a new tenant can be
assigned or until the Department of General Services can negotiate a
mutual termination of the lease. If the department generates the
tenant's relinquishment, or if the tenant is vacating in accordance
with the provisions of its lease agreement, the tenant shall not be
obligated to pay rent after vacating the premises.
SEC. 265. Section 15202 of the Government Code is amended to read:
15202. (a) A county which
that is responsible for the cost of a trial or
trials or any hearing of a person for the offense of homicide may
apply to the Controller for reimbursement of the costs incurred by
the county in excess of the amount of money derived by the county
from a tax of 0.0125 of 1 percent of the full value of property
assessed for purposes of taxation within the county.
(b) The Controller shall not reimburse any
county for costs that exceed the State Board of Control's
California Victim Compensation and Government Claims
Board 's standards for travel and per diem expenses.
The Controller may reimburse extraordinary costs in unusual cases if
the county provides sufficient justification of the need for these
expenditures. Nothing in this section shall permit the reimbursement
of costs for travel in excess of 1,000 miles on any single round
trip, without the prior approval of the Attorney General.
This section shall become operative on January 1, 2005.
SEC. 266. Section 15492 of the Government Code is amended to read:
15492. (a) The Department of General Services shall assign one
full-time position within the Office of Public School Construction to
the performance of the following functions:
(1) Providing advisory assistance to school districts regarding
the process of site acquisition for projects for which the State
Allocation Board has approved funding under Chapter 22
1 (commencing with Section 17700)
17210) of Part 10 10.5
of the Education Code.
(2) Formulating recommendations for administrative or statutory
revision to the manner in which school sites are acquired under
Chapter 22 1 (commencing with Section
17700) 17210) of Part 10
10.5 of the Education Code, and submitting those
recommendations to the State Allocation Board.
(b) The Department of General Services shall establish a screening
unit or other mechanism within the Office of Public School
Construction to ensure that the office responds in a timely manner to
any inquiry regarding the status of an application for project
funding under Chapter 22 1 (commencing
with Section 17700) 17210) of Part
10 10.5 of the Education Code.
(c) The requirements set forth in this section shall not increase
the staffing level of the Office of Public School Construction, as
that staffing level existed on the operative date of this section.
SEC. 267. Section 15815 of the Government Code is amended to read:
15815. (a) The plans and specifications for any public building
constructed pursuant to this part shall be prepared by the Department
of General Services, and the board shall reimburse the department
for the costs of its services from the funds available for that
purpose. Any public building constructed under this part shall be
constructed in accordance with the State Contract Act.
(b) Subdivision (a) does not apply to any public building
constructed by, or on behalf of, the board for lease-purchase by the
board to, or in connection with, a contract between the board and any
of the following entities:
(1) The Regents of the University of California, if the public
building is constructed under Article 1 (commencing with Section
10500) of Chapter 2.1 of Part 2 of Division 2 of the Public Contract
Code.
(2) The Trustees of the California State University, if the public
building is constructed under Chapter 2.5 (commencing with Section
10700) of Part 2 of Division 2 of the Public Contract Code.
(3) A community college district, if the building is constructed
under Article 47 41 (commencing with
Section 20650) of Chapter 1 of Part 3 of Division 2 of the Public
Contract Code.
(c) Subdivision (a) does not apply to any public building
constructed with the Administrative Office of the Courts serving as
the implementing agency under subdivision (b) of Section 70374.
SEC. 268. Section 15952 of the Government Code is amended to read:
15952. (a) Centralized administration of consolidated social
service transportation services shall utilize, to the maximum extent
possible, existing public and private administrative capabilities and
expertise. Utilization of existing administrative capabilities and
expertise shall not require employment of those public and private
administrative personnel nor shall it preclude any consolidated
agency from developing a necessary administrative organization.
(b) Efficient and continual use of all existing sources of
funding, utilized prior to the enactment of this part for social
service transportation services, shall, to the maximum extent
possible, be continued. Social service agencies participating in
consolidation or coordination shall continue to maintain funding
levels for consolidated services necessary to meet the transportation
needs of their social service consumers. Rescinding or eliminating
funding for consolidated services by any participating agency shall
require cancellation of service to the agency's consumers by the
consolidated agency. Cancellation of such the
service shall not be required if recission
rescission or elimination of funding occurs because of a
program change with respect to the source of funding.
(c) Consolidation of social service transportation services shall,
to the maximum extent possible, utilize existing agency operating
and maintenance personnel and expertise. Effective use of employees
of participating agencies shall be achieved without mandating that
such the employees become directly
employed by the designated consolidated agency.
(d) Consolidation of existing social service transportation
services shall more appropriately be achieved if local elected
officials are involved in the process. Local elected officials shall,
to the maximum extent possible, be involved in the development of
the action plans and other local actions necessary for the successful
implementation of this part.
SEC. 269. Section 16302.1 of the Government Code is amended to
read:
16302.1. (a) Whenever any person pays to
any state agency pursuant to law an amount covering taxes, penalties,
interest, license , or other fees, or any other payment,
and it is subsequently determined by the state agency responsible for
the collection thereof that this amount includes an overpayment of
ten dollars ($10) or less of the amount due the state pursuant to the
assessment, levy, or charge to which the payment is applicable, the
amount of the overpayment may be disposed of in either of the
following ways:
(a)
(1) The state agency responsible for the collection to
which the overpayment relates may apply the amount of the overpayment
as a payment by the person on any other taxes, penalties, interest,
license , or other fees, or any other amount due the state
from that person if the state agency is responsible by law for the
collection to which the overpayment is to be applied as a payment.
(b)
(2) Upon written request of the state agency
responsible for the collection to which the overpayment relates, the
amount of the overpayment shall, on order of the Controller, be
deposited as revenue in the fund in the State Treasury into which the
collection, exclusive of overpayments, is required by law to be
deposited.
(b) The State Board of Control
California Victim Compensation and Government
Claims Board may adopt rules and regulations to permit
state agencies to retain these overpayments where a demand for refund
permitted by law is not made within six months after the refund
becomes due, and the retained overpayments shall belong to the state.
(c) Except as provided in the
foregoing paragraph subdivision (b) , this
section shall not affect the right of any person making overpayment
of any amount to the state to make a claim for refund of the
overpayment, nor the authority of any state agency or official to
make payment of any amount so claimed, if otherwise authorized by
law.
SEC. 270. Section 16304.6 of the Government Code is amended to
read:
16304.6. Within the time during which the appropriation is
available for expenditure, the State Board of Control
California Victim Compensation and Government Claims
Board at the request of the director of the department
concerned and with the approval of the Director of Finance, may
authorize that unneeded funds in any appropriation for the support of
an institution, school, or college or for family care or private
home care or for parole supervision activities within any of the
following departments shall be available and be deemed appropriated
for the support of any
institution, school, or college or for family care or private home
care or for parole supervision activities within the same department:
(a) Department of Corrections and Rehabilitation .
(b) Department of the Youth Authority.
(c) State Department of Education.
(d) State Department of Mental Health.
SEC. 271. Section 16366.3 of the Government Code is amended to
read:
16366.3. Federal block grant legislation provides that, for the
first fiscal year, states have the option to accept or reject
designated block grants. Consistent with this federal policy, the
state shall, prior to July 1, 1982, accept only those block grants
which that meet all of the following
criteria:
(a) The block grant includes programs and services which
that the state has previous
previously administered.
(b) The block grant program, and funding, has been previously
integrated into state and local service systems.
(c) The block grant program does not require increased state or
local matching funds.
(d) There is a distinct advantage as a result of state assumption.
SEC. 272. Section 16383 of the Government Code is amended to read:
16383. Warrants may be drawn by the Controller against the
General Cash Revolving Fund, to the extent of the amounts available,
in accordance with demands audited pursuant to law and rules and
regulations prescribed from time to time by the Board of
Control California Victim Compensation and Government
Claims Board , and also to meet other payments provided by law
to be made from the General Fund. The Treasurer may pay from the
General Cash Revolving Fund the warrants so drawn.
SEC. 273. Section 16431 of the Government Code is amended to read:
16431. (a) Notwithstanding any other
provisions of this code, funds held by the state pursuant to a
written agreement between the state and employees of the state to
defer a portion of the compensation otherwise receivable by the state'
s employees and pursuant to a plan for such
that deferral as adopted by the state and approved by the
State Board of Control California Victim
Compensation and Government Claims Board , may be invested in
the types of investments set forth in Sections 53601 and 53602
of this code , and may additionally be invested in
corporate stocks, bonds, and securities, mutual funds, savings and
loan accounts, credit union accounts, annuities, mortgages, deeds of
trust, or other security interests in real or personal property.
Nothing herein in this section shall be
construed to permit any type of investment prohibited by the
California Constitution.
(b) Deferred compensation funds are public
pension or retirement funds for the purposes of Section 42
17 of Article XIII XVI
of the California Constitution.
SEC. 274. Section 16585 of the Government Code is amended to read:
16585. (a) A city, county, or city and county may sell or
transfer part or all of its accounts receivable to a private debt
collector or private persons or entities, provided the city, county,
or city and county notifies the debtor in writing at the address of
record that the alleged accounts receivable debt will be turned over
for private collection unless the debt is paid, or appealed within a
time period, as determined by the city, county, or city and county
providing the notice.
(b) No city, county, or city and county shall assign or sell any
account receivable pursuant to subdivision (a) if the account
receivable debt has been contested.
SEC. 275. Section 17051.5 of the Government Code is amended to
read:
17051.5. A state agency shall notify the Treasurer not to pay a
warrant drawn by the Controller upon that agency's request whenever
that agency has reason to believe that the Controller has drawn or is
about to draw his or her warrant without legal authority, for a
larger amount than is owed by the state, or in a manner not in
conformity with the regulations adopted by the State Board
of Control California Victim Compensation and
Government Claims Board for the presentation and audit of
claims. Upon notification from a state agency as described in this
section, the Treasurer shall refuse payment of the subject warrant
until he or she is otherwise directed by the agency or the
Legislature.
SEC. 276. Section 17201 of the Government Code is amended to read:
17201. The State Board of Control
California Victim Com pensation and Government Claims
Board may make rules and regulations governing the issuance and
sale of registered warrants.
SEC. 277. Section 17520 of the Government Code is amended to read:
17520. "Special district" means any agency of the state that
performs governmental or proprietary functions within limited
boundaries. "Special district" includes a county service area, a
maintenance district or area, an improvement district or improvement
zone, or any other zone or area. "Special district" does not include
a city, a county, a school district, or a community college district.
County free libraries established pursuant to Chapter 2
6 (commencing with Section 27151)
19100 of Division 20
Part 11 of the Education Code, areas receiving county fire
protection services pursuant to Section 25643 of the Government Code,
and county road districts established pursuant to Chapter 7
(commencing with Section 1550) of Division 2 of the Streets and
Highways Code shall be considered "special districts" for all
purposes of this part.
SEC. 278. Section 17553 of the Government Code is amended to read:
17553. (a) The commission shall adopt procedures for receiving
claims pursuant to this article and for providing a hearing on those
claims. The procedures shall do all of the following:
(1) Provide for presentation of evidence by the claimant, the
Department of Finance , and any other affected department
or agency, and any other interested person.
(2) Ensure that a statewide cost estimate is adopted within 12
months after receipt of a test claim, when a determination is made by
the commission that a mandate exists. This deadline may be extended
for up to six months upon the request of either the claimant or the
commission.
(3) Permit the hearing of a claim to be postponed at the request
of the claimant, without prejudice, until the next scheduled hearing.
(b) All test claims shall be filed on a form prescribed by the
commission and shall contain at least the following elements and
documents:
(1) A written narrative that identifies the specific sections of
statutes or executive orders alleged to contain a mandate and shall
include all of the following:
(A) A detailed description of the new activities and costs that
arise from the mandate.
(B) A detailed description of existing activities and costs that
are modified by the mandate.
(C) The actual increased costs incurred by the claimant during the
fiscal year for which the claim was filed to implement the alleged
mandate.
(D) The actual or estimated annual costs that will be incurred by
the claimant to implement the alleged mandate during the fiscal year
immediately following the fiscal year for which the claim was filed.
(E) A statewide cost estimate of increased costs that all local
agencies or school districts will incur to implement the alleged
mandate during the fiscal year immediately following the fiscal year
for which the claim was filed.
(F) Identification of all of the following:
(i) Dedicated state funds appropriated for this program.
(ii) Dedicated federal funds appropriated for this program.
(iii) Other nonlocal agency funds dedicated for this program.
(iv) The local agency's general purpose funds for this program.
(v) Fee authority to offset the costs of this program.
(G) Identification of prior mandate determinations made by the
Board of Control California Victim
Compensation and Government Claims Board or the Commission on
State Mandates that may be related to the alleged mandate.
(2) The written narrative shall be supported with declarations
under penalty of perjury, based on the declarant's personal
knowledge, information , or belief, and signed by persons
who are authorized and competent to do so, as follows:
(A) Declarations of actual or estimated increased costs that will
be incurred by the claimant to implement the alleged mandate.
(B) Declarations identifying all local, state, or federal funds,
or fee authority that may be used to offset the increased costs that
will be incurred by the claimant to implement the alleged mandate,
including direct and indirect costs.
(C) Declarations describing new activities performed to implement
specified provisions of the new statute or executive order alleged to
impose a reimbursable state-mandated program. Specific references
shall be made to chapters, articles, sections, or page numbers
alleged to impose a reimbursable state-mandated program.
(3) (A) The written narrative shall be supported with copies of
all of the following:
(i) The test claim statute that includes the bill number or
executive order, alleged to impose or impact a mandate.
(ii) Relevant portions of state constitutional provisions, federal
statutes, and executive orders that may impact the alleged mandate.
(iii) Administrative decisions and court decisions cited in the
narrative.
(B) State mandate determinations made by the Board of
Control California Victim Compensation and Government
Claims Board and the Commission on State Mandates and published
court decisions on state mandate determinations made by the
Commission on State Mandates are exempt from this requirement.
(4) A test claim shall be signed at the end of the document, under
penalty of perjury by the claimant or its authorized representative,
with the declaration that the test claim is true and complete to the
best of the declarant's personal knowledge or
, information , or belief. The date of signing,
the declarant's title, address, telephone number, facsimile machine
telephone number, and electronic mail address shall be included.
(c) If a completed test claim is not received by the commission
within 30 calendar days from the date that an incomplete test claim
was returned by the commission, the original test claim filing date
may be disallowed, and a new test claim may be accepted on the same
statute or executive order.
(d) In addition, the commission shall determine whether an
incorrect reduction claim is complete within 10 days after the date
that the incorrect reduction claim is filed. If the commission
determines that an incorrect reduction claim is not complete, the
commission shall notify the local agency and school district that
filed the claim stating the reasons that the claim is not complete.
The local agency or school district shall have 30 days to complete
the claim. The commission shall serve a copy of the complete
incorrect reduction claim on the Controller. The Controller shall
have no more than 90 days after the date the claim is delivered or
mailed to file any rebuttal to an incorrect reduction claim. The
failure of the Controller to file a rebuttal to an incorrect
reduction claim shall not serve to delay the consideration of the
claim by the commission.
SEC. 279. Section 17556 of the Government Code is amended to read:
17556. The commission shall not find costs mandated by the state,
as defined in Section 17514, in any claim submitted by a local
agency or school district, if, after a hearing, the commission finds
that any one of the following :
(a) The claim is submitted by a local agency or school district
that requested legislative authority for that local agency or school
district to implement the program specified in the statute, and that
statute imposes costs upon that local agency or school district
requesting the legislative authority. A resolution from the governing
body or a letter from a delegated representative of the governing
body of a local agency or school district that requests authorization
for that local agency or school district to implement a given
program shall constitute a request within the meaning of this
paragraph subdivision .
(b) The statute or executive order affirmed for the state a
mandate that had been declared existing law or regulation by action
of the courts.
(c) The statute or executive order imposes a requirement that is
mandated by a federal law or regulation and results in costs mandated
by the federal government, unless the statute or executive order
mandates costs that exceed the mandate in that federal law or
regulation. This subdivision applies regardless of whether the
federal law or regulation was enacted or adopted prior to or after
the date on which the state statute or executive order was enacted or
issued.
(d) The local agency or school district has the authority to levy
service charges, fees, or assessments sufficient to pay for the
mandated program or increased level of service.
(e) The statute, executive order, or an appropriation in a Budget
Act or other bill provides for offsetting savings to local agencies
or school districts that result in no net costs to the local agencies
or school districts, or includes additional revenue that was
specifically intended to fund the costs of the state mandate in an
amount sufficient to fund the cost of the state mandate.
(f) The statute or executive order imposes duties that are
necessary to implement, reasonably within the scope of, or expressly
included in , a ballot measure approved by the voters in a
statewide or local election. This subdivision applies regardless of
whether the statute or executive order was enacted or adopted before
or after the date on which the ballot measure was approved by the
voters.
(g) The statute created a new crime or infraction, eliminated a
crime or infraction, or changed the penalty for a crime or
infraction, but only for that portion of the statute relating
directly to the enforcement of the crime or infraction.
SEC. 280. Section 18708 of the Government Code is amended to read:
18708. The board shall cooperate with the Director of Finance,
the Department of Personnel Administration, the State Board
of Control California Victim Compensation and
Government Claims Board , the Controller, and other state
agencies, in matters not covered by this part, and not inconsistent
herewith with this part , to promote
the efficient and economical administration of the state's business.
SEC. 281. Section 19583.5 of the Government Code is amended to
read:
19583.5. (a) Any person, except for a current ward of the
California Youth Authority Division of
Juvenile Facilities , a current inmate of the Department of
Corrections and Rehabilitation , or a current patient of a
facility operated by the State Department of Mental Health, with the
consent of the board or the appointing power may file charges
against an employee requesting that adverse action be taken for one
or more causes for discipline specified in this article. Charges
filed by a person who is a state employee shall not include issues
covered by the state's employee grievance or other merit appeals
processes. Any request of the board to file charges pursuant to this
section shall be filed within one year of the event or events that
led to the filing. The employee against whom the charges are filed
shall have a right to answer as provided in this article. In all of
these cases, a hearing shall be conducted in accord with this article
and if the board finds that the charges are true it shall have the
power to take any adverse action as in its judgment is just and
proper. An employee who has sought to bring a charge or an adverse
action against another employee using the grievance process, shall
first exhaust that administrative process prior to bringing the case
to the board.
(b) This section shall not be construed to supersede Section
19682.
SEC. 282. Section 19583.51 of the Government Code is amended to
read:
19583.51. (a) Effective January 1, 1996, notwithstanding Section
19583.5, this section shall only apply to state employees in State
Bargaining Unit 5. Any person, except for a current ward of the
California Youth Authority Division of
Juvenile Facilities , a current inmate of the Department of
Corrections and Rehabilitation , or a current patient of a
facility operated by the State Department of Mental Health, with the
consent of the board or the appointing power may file charges
against an employee requesting that adverse action be taken for one
or more causes for discipline specified in this article. Any request
of the board to file charges pursuant to this section shall be filed
within one year of the event or events that led to the filing. The
employee against whom the charges are filed shall have a right to
answer as provided in this article. In all of these cases, a hearing
shall be conducted in accordance with this article and if the board
finds that the charges are true it shall have the power to take any
adverse action as in its judgment is just and proper.
(b) This section shall not be construed to supersede Section
19682.
(c) Any adverse action, as defined by Section 19576.1, that
results from a request to file charges pursuant to this section, is
subject to the appeal procedures in Section 19576.1.
SEC. 283. Section 19792.5 of the Government Code is amended to
read:
19792.5. (a) In order to permit the public to track upward
mobility and the impact of equal opportunities on persons,
categorized by race, ethnicity, gender, and disability in state civil
service, the State Personnel Board shall annually track, by
incremental levels of ten thousand dollars ($10,000), the salaries of
persons, categorized by race, ethnicity, gender, and disability
, in state civil service. For purposes of this subdivision,
"upward mobility" means the advancement of persons, categorized by
race, ethnicity, gender, and disability , to better paying
and higher level positions.
(b) The board shall report salary data collected pursuant to
subdivision (a) to the Governor and the Legislature in its Annual
Census of State Employees and Equal Employment Opportunity Report, as
required in Section 19793, and shall include in this report
information regarding the progress of individuals by race, ethnicity,
and gender , and disability in
attaining high-level positions in state employment. The salary data
shall be reported in annual increments of ten thousand dollars
($10,000) by job category, race, ethnicity, gender, and disability in
a format easily understandable by the public.
SEC. 284. Section 19815.4 of the Government Code is amended to
read:
19815.4. The director shall do all of the following :
(a) Be responsible for the management of the department.
(b) Administer and enforce the laws pertaining to personnel.
(c) Observe and report to the Governor on the conditions of the
nonmerit aspects of personnel.
(d) Formulate, adopt, amend, or repeal rules, regulations, and
general policies affecting the purposes, responsibilities, and
jurisdiction of the department and which that
are consistent with the law and necessary for personnel
administration.
All regulations relating to personnel administration heretofore
adopted pursuant to this part by the State Personnel Board,
State Board of Control California Victim Compensation
and Government Claims Board , Department of General Services,
and the Department of Finance, and in effect on the operative date of
this part, shall remain in effect and shall be fully enforceable
unless and until readopted, amended, or repealed by the director.
(e) Hold hearings, subpoena witnesses, administer oaths, and
conduct investigations concerning all matters relating to the
department's jurisdiction.
(f) Act on behalf of the department and delegate powers to any
authorized representative.
(g) Serve as the Governor's designated representative pursuant to
the provisions of Section 3517.
(h) Perform such any other duties
as that may be prescribed by law, and
such any other administrative and
executive duties as that have by other
provisions of law been previously imposed.
SEC. 285. Section 19816 of the Government Code is amended to read:
19816. (a) Except as provided by Section
19816.2, the department succeeds to and is vested with the duties,
purposes, responsibilities, and jurisdiction exercised by the State
Personnel Board with respect to the administration of salaries, hours
, and other personnel related
personnel -related matters, training, performance
evaluations, and layoffs and grievances.
(b) The department succeeds to and is vested
with the duties, purposes, responsibilities, and jurisdiction
exercised by the State Board of Control
California Victim Compensation and Government Claims Board and
the Department of General Services with respect to the administration
of miscellaneous employee entitlements.
(c) The department succeeds to and is vested
with the duties, purposes, responsibilities, and jurisdiction
exercised by the Department of Finance with respect to the
administration of salaries of employees exempt from civil service and
within range salary adjustments.
SEC. 286. Section 19816.4 of the Government Code is amended to
read:
19816.4. The department shall have possession and control of all
records, papers, offices, equipment, supplies, moneys, funds,
appropriations, land, and other property real or personal held for
the benefit or use by the State Personnel Board, the State
Board of Control California Victim Compensation and
Government Claims Board , the Department of General Services,
and the Department of Finance in the performance of the duties,
powers, purposes, responsibilities, and jurisdiction that are vested
in the department by Section 19816.
SEC. 287. Section 19816.6 of the Government Code is amended to
read:
19816.6. All officers and employees of the State Personnel Board,
the State Board of Control California Victim
Compensation and Government Claims Board , the Department of
General Services, and the Department of Finance, who, on the
operative date of this part, are serving in the state civil service,
other than as temporary employees, and engaged in the performance of
a function vested in the department by Section 19816 shall be
transferred to the department. The status, positions, and rights of
such these persons shall not be
affected by the transfer and shall be retained by them as officers
and employees of the department pursuant to the State Civil Service
Act, except as to positions exempt from civil service.
SEC. 288. Section 19879.1 of the Government Code is amended to
read:
19879.1. (a) For the purpose of this section, an eligible
employee is an employee defined by Section 19858.3.
(b) Notwithstanding any other provision of this article, an
eligible employee who has enrolled in the annual leave program under
Article 2.5 (commencing with Section 19858.3) shall receive
nonindustrial disability leave benefits in accordance with all of the
following:
(1) A disabled employee shall be eligible to receive Nonindustrial
Disability Insurance benefits in an amount equal to one-half full
pay, 50 percent of gross salary.
(2) A disabled employee shall be eligible to receive Nonindustrial
Disability Insurance benefits without being required to use any sick
leave accrued under Article 3 (commencing with Section 19859) or
annual leave accrued under Article 2.5 (commencing with Section
19858.3) unless the employee, in his or her sole discretion, elects
to use sick leave or annual leave in lieu of receiving benefits.
(3) If the employee elects to use sick leave or annual leave
credits prior to receiving Nonindustrial Disability Insurance
payments, he or she shall not be required to exhaust the accrued
leave balance.
(4) Following the start of Nonindustrial Disability Insurance
payments, an employee may at any time change from the receipt of
Nonindustrial Disability Insurance payments to the utilization of
sick leave or annual leave. Once such an this
election is made, the employee may not recommence receiving
Nonindustrial Disability Insurance payments until that leave is
exhausted.
(5) In accordance with the state's return to work policy, an
employee who is eligible to receive Nonindustrial Disability
Insurance benefits and who is medically certified as unable to return
to his or her full-time work during the period of his or her
disability, may, with medical approval, and at the discretion of his
or her appointing power, work up to the number of hours, in hour
increments, which when combined with his or her Nonindustrial
Disability Insurance benefits will result in a salary which
that does not exceed 100 percent of his or her
regular full pay.
(6) If an employee refuses to return to work in a position offered
by the employer under the state's Injured State Worker Assistance
Program, Nonindustrial Disability Insurance benefits shall be
terminated effective as of the date of the offer.
(7) An employee may with his or her department head's approval
elect to supplement Nonindustrial Disablity
Disability Insurance benefits with sick or annual leave up to
100 percent of his or her regular full pay.
SEC. 289. Section 19999.2 of the Government Code is amended to
read:
19999.2. (a) The Legislature hereby finds and declares that this
chapter is intended to satisfy the requirements prescribed by the
Omnibus Budget Reconciliation Act of 1990 (OBRA). Section 3121(b)(7)
(F) of the Internal Revenue Code requires that state employees who
are not members of the Public Employees' Retirement System must be
covered by social security, or, in the alternative, be provided
benefits through a qualified pension or annuity program, effective
with compensated services rendered on or after July 2, 1991.
Therefore, the Legislature hereby authorizes the development of a
retirement program under the State's Deferred Compensation Plan, the
Savings Plan, or any other acceptable defined contribution plan in
which state employees can defer compensation at 7.5 percent of wages,
as the term "wages" is defined for social security purposes.
(b) "State employees," as used in subdivision (a), includes
the employees defined in Section 19815, as well as employees of the
California State University, who are not covered by social security
or by the Public Employees' Retirement System.
(c) This section shall not apply to employees of the California
State University unless and until the trustees authorizes
authorize their coverage in this retirement
program.
(d) In the event that the retirement program authorized by this
section is inconsistent with federal laws or rules or becomes
unnecessary under the state or federal law, this section shall become
inoperative.
SEC. 290. Section 20035.6 of the Government Code is amended 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 5 -percent reduction had not
occurred. This section shall only 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. 291. Section 20094 of the Government Code is amended to read:
20094. The counsel to the board shall notify each new member of
the board upon his or her assumption of office and each member of the
board annually that he or she is subject to the gift provisions of
, Chapter 9.5 (commencing with Section 89500) of
Title 9.
SEC. 292. Section 20163 of the Government Code is amended to read:
20163. (a) If more or less than the correct
amount of contribution required of members, the state, or any
contracting agency, is paid, proper adjustment shall be made in
connection with subsequent payments, or the adjustments may be made
by direct cash payments between the member, state, or contracting
agency concerned and the board or by adjustment of the employer's
rate of contribution. Adjustments to correct any other errors in
payments to or by the board, including adjustments of contributions,
with interest, that are found to be erroneous as the result of
corrections of dates of birth, may be made in the same manner.
Adjustments to correct overpayment of a retirement allowance may also
be made by adjusting the allowance so that the retired person or the
retired person and his or her beneficiary, as the case may be, will
receive the actuarial equivalent of the allowance to which the member
is entitled. Losses or gains resulting from error in amounts within
the limits set by the California Victim Compensation and
Government Claims Board for automatic writeoff, and losses or gains
in greater amounts specifically approved for writeoff by the
California Victim Compensation and Government Claims Board,
shall be debited or credited, as the case may be, to the reserve
against deficiencies in interest earned in other years, losses under
investments, and other contingencies.
(b) No adjustment shall be made because less
than the correct amount of normal contributions was paid by a member
if the board finds that the error was not known to the member and
was not the result of erroneous information provided by him or her to
this system or to his or her employer and the
. The failure to adjust shall not preclude action under
Section 20160 correcting the date upon which the person became a
member.
(c) The actuarial equivalent under this
section shall be computed on the basis of the mortality tables and
actuarial interest rate in effect under this system on December 1,
1970, for retirements effective through December 31, 1979. Commencing
with retirements effective January 1, 1980, and at corresponding
10-year intervals thereafter, or more frequently at the board's
discretion, the board shall change the basis for calculating
actuarial equivalents under this article to agree with the interest
rate and mortality tables in effect at the commencement of each
10-year or succeeding interval.
SEC. 293. Section 20462 of the Government Code is amended to read:
20462. The governing body of a public agency that has established
a pension trust or retirement plan funded by individual or group
life insurance or annuity contracts may, notwithstanding any
provision of this part to the contrary, enter into a contract to
participate in this system making its employees members of this
system, and continue the trust or plan with respect to service
rendered prior to the contract date. A pension trust or retirement
plan so continued shall be deemed not a local retirement, pension, or
annuity fund or system for the purpose of any provision of
this chapter. The public agency shall have all the rights
of any other contracting agency to provide prior service benefits for
its employees but may elect in the contract instead not to provide a
benefit with respect to prior service, in which case the service
rendered by its employees prior to the contract date shall
be deemed not to be state service.
SEC. 294. Section 20805 of the Government Code is amended to read:
20805. As used in determining the state's contribution,
"compensation paid" includes the compensation a member absent on
military service would have received were it not for his or her
absence is in that service, if the
normal contributions for the period of absence are made. The rate of
his or her compensation shall be his or her compensation at the
commencement of his or her absence. The percentages of state
contribution specified in this chapter apply to all compensation upon
the basis of which member's member
s' contributions are deducted after those percentages
became or become effective, without regard to the time when the
service was rendered for which the compensation is paid.
SEC. 295. Section 20808 of the Government Code is amended to read:
20808. (a) The actuary may, in determining contributions required
of contracting agencies, establish a contribution with respect to
industrial disability allowances, special death benefits, and any
other death benefit, singly or in any combination, separate from and
independent of the contribution required for other benefits under
their contracts. The total contribution, in that case, for the
agencies as a group shall be established and from time to time
adjusted by actuarial valuation performed by the actuary of the
liability for the benefit or benefits on account of the employees of
all those agencies. Adjustments shall affect only future
contributions and shall take into account the difference between
contributions on hand and the amount required to fund the allowances
or benefits for which entitlement has already been established as
well as liability for future entitlements to benefits. The
contribution as so established and adjusted from time to time shall
be allocated between the agencies on a basis that, in the opinion of
the board, after recommendation of the actuary, provides an equitable
distribution between the agencies. However, the allocation shall not
be based on differences in the incidence of death or disability in
the respective agencies.
(b) (1) Whenever the board, pursuant to
subdivision (a), establishes a separate contribution, it shall
maintain the contribution and any contributions required to be made
by employees towards the cost of the benefit or benefits as a
separate account, which shall be available only for payment of the
benefit or benefits and shall not be a part of the accumulated
contributions under this system of any of the employers or members
included.
(2) All contributions in that account,
irrespective of the agency from which they were received, shall be
available for payment of the benefit or benefits with respect to the
employees of any agency included , and in .
In the event of termination of any the
agency's participation in this system , the liability with
respect to all those benefits to which the agency's employees have
become entitled, after establishment of the rate and prior to the
termination, shall be its contributions, as established under
subdivision (a), which that have become
due and payable as of the date of termination.
SEC. 296. Section 21095 of the Government Code is amended to read:
21095. (a) Participation in the plan afforded by this article
shall be made available to any employee who was included in the
federal system and who was a member of this system prior to the
effective date of the employer's contract amendment to be subject to
this article. The election shall be irrevocable, shall be effective
on the first day of the pay period following the member's
election , and shall apply to all future service rendered
by the member with that agency. Each contracting agency shall ensure
each eligible member receives sufficient information to permit an
informed election, is counseled regarding the benefits provided by
this article, and receives an election document. The election
document shall be filed with the contracting agency, and the
contracting agency shall report the member's irrevocable election to
the board.
(b) A member subject to this article shall be subject to all other
provisions of this part. However, in the event of a conflict, this
article shall supersede and prevail over other provisions contained
in this part.
SEC. 297. Section 21223 of the Government Code is amended to read:
21223. A retired person may serve without reinstatement from
retirement or loss or interruption of benefits provided under this
system upon approval of the Director of the Department of
Personnel Administration or the governing body of a contracting
agency, as the case may be, under employment by any state or
contracting agency in which he or she previously served while a
member of this system, where by reason of actual litigation, or a
proceeding before the State Board of Control
California Victim Compensation and Government Claims Board or
the governing body of a contracting agency, as the case may be, or
where the state or contracting agency desires to perpetuate testimony
in connection with any anticipated litigation involving the state or
contracting agency, and adverse interests, the services of the
person are or may be necessary in preparing for trial or in
testifying as to matters within or based upon his or her knowledge
acquired while employed. He or she may be paid a per diem and actual
and necessary traveling expenses, but he or she shall not be paid at
a greater rate of compensation per diem than the rate ordinarily paid
other persons by state agencies or the contracting agency for
similar services. However, there shall be deducted from the per diem
compensation sums equal to the retirement annuity allocable to the
days of actual employment under this section.
SEC. 298. Section 21265 of the Government Code is amended to read:
21265. Retired members of this system, and beneficiaries who are
entitled to receive allowances or benefits under the
provisions of this part, may authorize deductions to be
made from their retirement allowance payments or from the allowances
and benefits, respectively, or from either or both where
when both are being received in accordance with
regulations established by the board for the payment of charitable
contributions under any plan approved by the board. In lieu of
approving individual plans, the board, at its discretion, may adopt
by reference those plans approved by the State Board of
Control California Victim Compensation and Government
Claims Board under Section 13923. The board shall determine the
additional cost involved in making deductions under this section
, and the agency to receive the contributions shall pay
the amount of the additional cost to the board for deposit in the
retirement fund.
SEC. 299. Section 21752 of the Government Code is amended to read:
21752. (a) (1) In accordance with Section 21756, a member's
annual retirement benefits, adjusted to the actuarial equivalent of a
straight-life annuity if payable in a form other than a
straight-life annuity or a qualified joint and survivor annuity as
provided under Section 21460, and determined without regard to any
employee contributions or rollover contributions, as defined in
Sections 402(a)(5), 403(a)(4), and 408(d)(3))
408(d)(3) of Title 26 of the United States Code, otherwise
payable to the member under Part 3 (commencing with Section 20000)
and under any other defined benefit plan maintained by the employer
that is subject to Section 415 of Title 26 of the United States Code,
shall not exceed, in the aggregate, the dollar limit applicable
pursuant to Section 415(b)(1)(A) of Title 26 of the United States
Code ; , as appropriately modified by
Section 415(b)(2)(F) and (G) of Title 26 of the United States Code.
(2) However, the annual retirement benefit payable to a member
shall be deemed not to exceed the limitations prescribed in paragraph
(1) if the benefit does not exceed ten thousand dollars ($10,000)
and the member has at no time participated in a tax qualified defined
contribution plan maintained by the employer.
(b) These limitations shall be applied pursuant to Section 415(b)
(10) of Title 26 of the United States Code.
(c) Part 3 (commencing with Section 20000) shall be construed as
if it included this section.
SEC. 300. Section 22100 of the Government Code is amended to read:
22100. (a) For all purposes under this
part, the following group of employees shall constitute a separate
coverage group :
(a) Civilian
: civilian employees of National Guard units of
the State state who are employed
pursuant to Section 90 of the National Defense Act of June 3, 1916
(32 U.S.C. ; Section Sec. 42), and paid
from funds allotted to such those
units by the Department of Defense. The
(b) The Adjutant General may
enter into an agreement with the board pursuant to Section 22203 for
the purpose of obtaining coverage under the federal system for
such these employees.
SEC. 301. Section 26749 of the Government Code is amended to read:
26749. The sheriff shall receive expenses necessarily incurred in
conveying insane persons to and from the state hospitals and in
conveying persons to and from the state prisons or other state
institutions, or to other destinations for the purpose of deportation
to other states, or in advancing actual traveling expenses to any
person committed to a state institution who is permitted to report to
an institution without escort, which expenses shall be allowed as
provided by Chapter 6 (commencing with Section 4750) of Title 5 of
Part 3 of the Penal Code for cases subject to that chapter, and,
otherwise, by the State Board of Control
California Victim Compensation and Government Claims Board
and paid by the state.
SEC. 302. Section 29965 of the Government Code is amended to read:
29965. Unless prevented by petition protesting the passage of the
ordinance, signed and filed with the board pursuant to Division
4 9 (commencing with Section 9000) of
the Elections Code, the bonds shall be publicly canceled at the time
and place fixed, and the clerk of the board of supervisors shall
enter on the minutes of the board of supervisors a record of the
bonds canceled sufficient to identify them and the fact and date of
the cancellation.
SEC. 303. Section 31461.1 of the Government Code is amended to
read:
31461.1. (a) This section applies only to a county of the first
class, as defined by Section 28020, as amended by Chapter 1204 of the
Statutes of 1971, and Section 28022, as amended by Chapter 43 of the
Statutes of 1961.
(b) Notwithstanding Sections 31460 and Section
31461, neither "compensation" nor "compensation earnable" shall
include any of the following: cafeteria or flexible benefit plan
contributions, transportation allowances, car allowances, or security
allowances, as enumerated in a resolution adopted pursuant to
subdivision (c).
(c) Except as provided in subdivision (d), this section shall not
be operative until the board of supervisors, by resolution adopted by
a majority vote, makes this section operative with respect to any
employee who becomes a member after the effective date of the
resolution . resolution.
(d) Regardless of whether it has acted pursuant to subdivision
(c), at any time the board of supervisors, by separate resolution
adopted by a majority vote, may make this section operative with
respect to any member not represented by a certified employee
organization who makes an irrevocable election to become subject to
this section.
(e) Nothing in this section shall be construed to affect any
determination made by the board of retirement, pursuant to Section
31461, prior to the effective date of this section.
(f) Nothing in this section shall be construed to affect the
validity of any memorandum of understanding or similar agreement that
has been executed prior to the effective date of this section.
SEC. 304. Section 31469 of the Government Code is amended to read:
31469. (a) "Employee" means any officer or other person employed
by a county whose compensation is fixed by the board of supervisors
or by statute and whose compensation is paid by the county, and any
officer or other person employed by any district within the county.
(b) "Employee" includes any officer or attache of any superior
court or municipal court which that has
been brought within the operation of this chapter.
(c) "Employee" includes any officer or other person employed by a
district as defined in subdivision (c) of Section 31468 and whose
compensation is paid from funds of the district.
(d) "Employee" includes any member paid from the county school
service fund who elected pursuant to Education Code
Section 873.1 1313 of the Education
Code to remain a member of this system.
(e) "Employee" includes any person permanently employed by a local
agency formation commission including the executive officer thereof.
SEC. 305. Section 31470.25 of the Government Code is amended to
read:
31470.25. (a) All sheriffs, undersheriffs, assistant sheriffs,
chief deputy sheriffs, captains, lieutenants, sergeants, jailers,
turnkeys, deputy sheriffs, bailiffs, constables, deputy constables,
motorcycle officers, aircraft pilots, detectives, and investigators
in the office of the district attorney, and marshals and all
regularly appointed deputy marshals, who are first so employed on or
after the operative date of this section in a county, are eligible.
This section is an alternative to Section 31470.2.
(b) This section shall apply only in a county of the second class,
as defined by Sections 28020 and 28022 28023
, as amended by Chapter 1204 of the Statutes of 1971.
(c) This section shall not be operative in a county unless and
until the board of supervisors shall , by
resolution adopted by a majority vote, makes this section operative
in that county.
SEC. 306. Section 31485.12 of the Government Code is amended to
read:
31485.12. (a) Notwithstanding any other provision of law, in a
county of the 16th class, as defined in Sections 28020 and 28037, or
a county of the 22nd class, as defined in Sections 28020 and 28043,
each as amended by Chapter 1204 of the Statutes of 1971, the board of
supervisors may, by resolution, ordinance, contract, or contract
amendment under this chapter, provide different retirement benefits
for some safety member bargaining units within the safety member
classification of a county retirement system.
(b) The resolution, ordinance, contract, or contract amendment
described in subdivision (a) may provide a different formula for
calculation of retirement benefits , by making any
section of this chapter that is applicable to different
safety member bargaining units within the safety member
classification , applicable to service credit
earned on and after the date specified in the resolution, which date
may be earlier than the date the resolution is adopted. The terms of
an agreement or memorandum of understanding reached with a recognized
employee organization, pursuant to this subdivision, may be made
applicable by the board of supervisors to any unrepresented group
within the same or similar membership classification as the employees
represented by the recognized employee organization or bargaining
unit.
(c) A resolution, ordinance, contract, or contract amendment
adopted pursuant to this section may require members to pay all or
part of the contributions by a member or employer, or both, that
would have been required if the section or sections specified in
subdivision (b), as adopted by the board or governing body, had been
in effect during the period of time designated in the resolution,
ordinance, contract, or contract amendment. The payment by a member
shall become part of the accumulated contributions of the member. For
those members who are represented by a bargaining unit, the payment
requirement shall be approved in a memorandum of understanding
executed by the board of supervisors and the employee
representatives.
(d) This section shall only apply to members who retire on or
after the effective date of the resolution, ordinance, contract, or
contract amendment described in subdivision (a) or (b) ,
or on or after the date provided in the memorandum of understanding
described in subdivision (c).
(e) The board of supervisors, in the resolution, ordinance,
contract, or contract amendment described in subdivision (a), shall
not require that a bargaining unit be divided solely for the purpose
of providing different retirement benefits. However, if the members
of a bargaining unit within the same or similar membership
classification so elect, retirement benefits may be separately
negotiated with that bargaining unit.
(f) 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. 307. Section 31585.1 of the Government Code is amended to
read:
31585.1. When an employee paid from the county school service
fund elects to remain a member of this retirement system as
authorized by Education Code Section
873.1 1313 of the Education Code , the same
appropriations, transfers , and disposition of funds shall
be made as those required of the county by this article, and
such those charges are legal charges
against the funds of the county school service fund.
SEC. 308. Section 31691 of the Government Code is amended to read:
31691. (a) The board of supervisors of any
county by ordinance , or the governing body of any
district under the County Employees Retirement Law may
, by ordinance or resolution , may
provide for the contribution by the county or district from its funds
and not from the retirement fund , toward the payment of
all or a portion of the premiums on a policy or certificate of life
insurance or disability insurance issued by an admitted insurer, or
toward the payment of all or part of the consideration for any
hospital service or medical service corporation, including any
corporation lawfully operating under Section 9201 of the Corporations
Code, contract, or for any combination thereof, for the benefit of
any member heretofore or hereafter retired or his or her
dependents. At least one of these plans shall include free choice of
physician and surgeon.
(b) The benefits provided by this section
are in addition to any other benefits provided by this chapter
(commencing with Section 31450) .
(c) The board of retirement may provide on
behalf of a member who has retired , or ,
an eligible surviving spouse who was married to the member
for one year prior to the date of retirement of the member ,
or, if there is no such spouse, the surviving unmarried
children of the member who are under 18 years of age , or
under the age of 22 years of age and
full-time students, for the benefits enumerated herein from the
earnings of the retirement fund which that
are in excess of the total interest credited to contributions
and reserves plus 1 percent of the total assets of the retirement
fund. The board may provide for the benefits enumerated from like
sources when the board of supervisors or the governing body of a
district has elected to provide these benefits to its active
employees, even though they the benefits
are not provided to those who have retired from the service of
the county or district.
(d) Except in a county of the first class,
upon adoption by any county providing benefits pursuant to this
section, of Article 5.5 (commencing with Section 31510) of
this chapter, the board of retirement shall, instead, pay
those benefits from the Supplemental Retiree Benefits Reserve
established pursuant to Section 31510.8 31618
.
SEC. 309. Section 31691.1 of the Government Code is amended to
read:
31691.1. (a) In lieu of the benefits
prescribed by the last paragraph subdivision
(d) of Section 31691, the board of retirement may provide on
behalf of a member who has retired , or an eligible
surviving spouse who was married to the member prior to the date of
retirement of the member, or, if there is no such spouse, the
surviving unmarried children of the member who are under 18 years of
age , or under the age of 22 years
of age and full-time students, for an equivalent increase in
allowance from the earnings of the retirement fund which
that are in excess of the total interest
credited to contributions and reserves plus 1 percent of the total
assets of the retirement fund. Any benefit provided by this section
shall be subject to the provisions of Section
31692.
(b) Except in a county of the first class,
upon adoption by any county providing benefits pursuant to this
section, of Article 5.5 (commencing with Section 31510) of
this chapter, the board of retirement shall, instead, pay
those benefits from the
Supplemental Retiree Benefits Reserve established pursuant to Section
31510.8 31618 .
SEC. 310. Section 45002 of the Government Code is amended to read:
45002. The system may include the librarian, secretary, and other
officers and employees, except members of the board of trustees, of
the public library established pursuant to Chapter 3
5 (commencing with Section 27301)
18900) of Division 20
Part 11 of the Education Code.
SEC. 311. Section 54957.1 of the Government Code is amended to
read:
54957.1. (a) The legislative body of any local agency shall
publicly report any action taken in closed session and the vote or
abstention on that action of every member present
thereon , as follows:
(1) Approval of an agreement concluding real estate negotiations
pursuant to Section 54956.8 shall be reported after the agreement is
final, as specified below follows :
(A) If its own approval renders the agreement final, the body
shall report that approval and the substance of the agreement in open
session at the public meeting during which the closed session is
held.
(B) If final approval rests with the other party to the
negotiations, the local agency shall disclose the fact of that
approval and the substance of the agreement upon inquiry by any
person, as soon as the other party or its agent has informed the
local agency of its approval.
(2) Approval given to its legal counsel to defend, or seek or
refrain from seeking appellate review or relief, or to enter as an
amicus curiae in any form of litigation as the result of a
consultation under Section 54956.9 shall be reported in open session
at the public meeting during which the closed session is held. The
report shall identify, if known, the adverse party or parties and the
substance of the litigation. In the case of approval given to
initiate or intervene in an action, the announcement need not
identify the action, the defendants, or other particulars, but shall
specify that the direction to initiate or intervene in an action has
been given and that the action, the defendants, and the other
particulars shall, once formally commenced, be disclosed to any
person upon inquiry, unless to do so would jeopardize the agency's
ability to effectuate service of process on one or more unserved
parties, or that to do so would jeopardize its ability to conclude
existing settlement negotiations to its advantage.
(3) Approval given to its legal counsel of a settlement of pending
litigation, as defined in Section 54956.9, at any stage prior to or
during a judicial or quasi-judicial proceeding shall be reported
after the settlement is final, as specified below
follows :
(A) If the legislative body accepts a settlement offer signed by
the opposing party, the body shall report its acceptance and identify
the substance of the agreement in open session at the public meeting
during which the closed session is held.
(B) If final approval rests with some other party to the
litigation or with the court, then as soon as the settlement becomes
final, and upon inquiry by any person, the local agency shall
disclose the fact of that approval, and identify the substance of the
agreement.
(4) Disposition reached as to claims discussed in closed session
pursuant to Section 54956.95 shall be reported as soon as reached in
a manner that identifies the name of the claimant, the name of the
local agency claimed against, the substance of the claim, and any
monetary amount approved for payment and agreed upon by the claimant.
(5) Action taken to appoint, employ, dismiss, accept the
resignation of, or otherwise affect the employment status of a public
employee in closed session pursuant to Section 54957 shall be
reported at the public meeting during which the closed session is
held. Any report required by this paragraph shall identify the title
of the position. The general requirement of this paragraph
notwithstanding, the report of a dismissal or of the nonrenewal of an
employment contract shall be deferred until the first public meeting
following the exhaustion of administrative remedies, if any.
(6) Approval of an agreement concluding labor negotiations with
represented employees pursuant to Section 54957.6 shall be reported
after the agreement is final and has been accepted or ratified by the
other party. The report shall identify the item approved and the
other party or parties to the negotiation.
(7) Pension fund investment transaction decisions made pursuant to
Section 54956.81 shall be disclosed at the first open meeting of the
legislative body held after the earlier of the close of the
investment transaction or the transfer of pension fund assets for the
investment transaction.
(b) Reports that are required to be made pursuant to this section
may be made orally or in writing. The legislative body shall provide
to any person who has submitted a written request to the legislative
body within 24 hours of the posting of the agenda, or to any person
who has made a standing request for all documentation as part of a
request for notice of meetings pursuant to Section 54954.1 or 54956,
if the requester is present at the time the closed session ends,
copies of any contracts, settlement agreements, or other documents
that were finally approved or adopted in the closed session. If the
action taken results in one or more substantive amendments to the
related documents requiring retyping, the documents need not be
released until the retyping is completed during normal business
hours, provided that the presiding officer of the legislative body or
his or her designee orally summarizes the substance of the
amendments for the benefit of the document requester or any other
person present and requesting the information.
(c) The documentation referred to in paragraph
subdivision (b) shall be available to any person on the
next business day following the meeting in which the action referred
to is taken or, in the case of substantial amendments, when any
necessary retyping is complete.
(d) Nothing in this section shall be construed to require that the
legislative body approve actions not otherwise subject to
legislative body approval.
(e) No action for injury to a reputational, liberty, or other
personal interest may be commenced by or on behalf of any employee or
former employee with respect to whom a disclosure is made by a
legislative body in an effort to comply with this section.
(f) This section is necessary to implement , and
reasonably within the scope of , paragraph (1) of
subdivision (b) of Section 3 of Article I of the California
Constitution.
SEC. 312. Section 54999.5 of the Government Code is amended to
read:
54999.5. Capital facilities fees paid by school districts for
public utility facilities to serve school facilities for which an
application for funding is filed on or after the effective date of
this chapter may, for purposes of Chapter 22
12 (commencing with Section 17700)
17000) of Part 10 of Division 1 of Title 1
of the Education Code, be included by the State Allocation Board as a
"cost of project" within the meaning of subdivision (b) of Section
17702 of the Education Code.
SEC. 313. Section 65050 of the Government Code is amended to read:
65050. (a) As used in this article, the following phrases have
the following meanings:
(1) "Military base" means a military base that is designated for
closure or downward realignment where real property will be made
available for disposal pursuant to the Defense Authorization
Amendments and Base Closure and Realignment Act (P.L. 100-526), the
Defense Base Closure and Realignment Act of 1990 (P.L. 101-510), or
any subsequent closure or realignment approved by the President of
the United States without objection by the Congress.
(2) "Effective date of a base closure" means the date a base
closure decision becomes final under the terms specified by federal
law. These decisions become final 45 legislative days after the date
the federal Base Closure Commission submits its recommendations to
the President, he or she approves those recommendations, and the
Congress does not disapprove those recommendations or adjourns.
(b) It is not the intent of the Legislature in enacting this
section to preempt local planning efforts or to supersede any
existing or subsequent authority invested in the Office of Military
and Aerospace Support. It is the intent of this article to provide a
means of conflict resolution between local agencies vying to seek
recognition from the United States Department of Defense's Office of
Economic Adjustment as a single base reuse entity.
(c) For the purposes of this article, a single local base reuse
entity shall be recognized pursuant to the regulations of the United
States Department of Defense's Office of Economic Adjustment.
(d) The following entities or their successors, including, but not
limited to, separate airport or port authorities, are recognized by
the United States Department of Defense's Office of Economic
Adjustment as the single local reuse entity for the following
military bases listed :
Military Base Local Reuse Entity
Victor Valley
George Air Force Base Economic
Development Authority
Hamilton Army Base City of Novato
Mather Air Force Base County of Sacramento
Inland Valley
Norton Air Force Base Development
Authority
City and County
Presidio Army Base of
San Francisco
Salton Sea Navy Base Imperial County
County
Castle Air Force Base of
Merced
Hunters Point City and County
Naval of
Annex San Francisco
Long Beach Naval City of Long Beach
Station
MCAS Tustin City of Tustin
Sacramento Army Depot City of Sacramento
Local
redevelopment
authority recognized
by
MCAS El Toro the United
States
Department
of
Economic Adjustment
March Joint
March Air Force Base Powers
Authority
Mare Island Naval City of Vallejo
Shipyard
Naval Training
Center, City of San Diego
San Diego
City and County
NS Treasure Island of
San Francisco
NAS Alameda, San
Francisco Alameda
Bay Public Reuse
Works and
Center, Alameda Redevelopment
Naval Authority
Aviation Depot
Oakland Military Oakland Base Reuse
Complex Authority
Fort Ord Army Base Fort Ord Reuse
Authority
Sierra Army Depot County of Lassen
Any military base reuse authority created pursuant to Title 7.86
(commencing with Section 67800) that is recognized by the United
States Department of Defense's Office of Economic Adjustment as the
single local reuse entity for the specific military base.
(e) For any military base that is closed and not listed in
subdivision (d), the United States Department of Defense's Office of
Economic Adjustment will follow its established procedures in
recognizing a single local reuse entity.
(f) If, after 60 days from the effective date of the base closure
decision, a single local reuse entity cannot be recognized by the
United States Department of Defense's Office of Economic Adjustment,
the Director of the Office of Planning and Research, in consultation
with the federal Office of Economic Adjustment, shall select a
mediator, from a list submitted by the Office of Military and
Aerospace Support containing no fewer than seven recommendations, to
affect effect an agreement among the
effected affected jurisdictions on a
single local reuse entity acceptable to the federal Office of
Economic Adjustment for recognition. In selecting a mediator, the
director shall appoint a neutral person or persons, with experience
in local land use issues, to facilitate communication between the
disputants and assist them in reaching a mutually acceptable
agreement prior to 120 days from the effective date of the base
closure decision.
(g) As a last resort, and only if no recognition is made pursuant
to the procedure specified in subdivisions (e) and (f) within 120
days after a base closure decision has become final or within 120
days after the date on which this section becomes operative,
whichever date is later, the Office of Military and Aerospace Support
shall hold public hearings, in consultation with the federal Office
of Economic Adjustment, and recognize a single local base reuse
entity for each closing base for which agreement is reached among the
local jurisdictions with responsibility for complying with Chapter 3
(commencing with Section 65100) and Chapter 4 (commencing with
Section 65800) on the base, or recommend legislation or action by the
local agency formation commission if necessary to identify a single
reuse entity that would be recognized by the federal Office of
Economic Adjustment.
(h) In recognizing a single local reuse entity pursuant to
subdivision (g), preference shall be given to existing entities and
entities with responsibility for complying with Chapter 3 (commencing
with Section 65100) and Chapter 4 (commencing with Section 65800).
(i) Any recognition of a single local reuse entity made pursuant
to subdivision (f) or (g) shall be submitted by the Director of the
Office of Planning and Research to the Governor, the Legislature, and
the United States Department of Defense.
SEC. 314. Section 65852.9 of the Government Code is amended to
read:
65852.9. (a) The Legislature recognizes that unused
school sites school sites represent a
potentially major source of revenue for school districts and that
current law reserves a percentage of unused school sites
schoolsites for park and recreational purposes.
It is therefore the intent of the Legislature to ensure that unused
school sites schoolsites not leased or
purchased for park or recreational purposes pursuant to Article 5
(commencing with Section 39390) 17485)
of Chapter 3 4 of Part 20
10.5 of the Education Code can be developed to
the same extent as is permitted on adjacent property. It is further
the intent of the Legislature to expedite the process of zoning
such the property to avoid unnecessary
costs and delays to the school district ; however
. However , school districts shall be charged for the
administrative costs of such this
rezoning.
(b) If all of the public entities enumerated in Section
39394 17489 of the Education Code decline a
school district's offer to sell or lease school property pursuant to
Article 5 (commencing with Section 39390)
17485 of Chapter 3 4 of Part
23 10.5 of the Education Code, the city
or county having zoning jurisdiction over the property shall, upon
request of the school district, zone the school site
school site as defined in Section
39392 of the Education Code, consistent with the provisions of the
applicable general and specific plans and compatible with the uses of
property surrounding the school site
schoolsite . The school site schoolsite
shall be given the same land use control treatment as if it
were privately owned. In no event shall the city or county, prior to
the school district's sale or lease of the school site
schoolsite , rezone the site to open-space, park
or recreation, or similar designation unless the adjacent property
is so zoned, or if so requested or agreed to by the school district.
(c) A rezoning effected pursuant to this
section shall be subject to any applicable procedural requirements of
state law or of the city or county.
(d) A school district which
that requests a zoning change pursuant to this
section shall, in the fiscal year in which the city or county incurs
costs in effecting the requested zoning change, reimburse the city or
county for the actual costs incurred by it.
SEC. 315. Section 65971 of the Government Code is amended to read:
65971. (a) The governing body of a school district which
that operates an elementary or high school
shall notify the city council or board of supervisors of the city or
county within which the school district is located if the governing
body makes both of the following findings supported by clear and
convincing evidence:
(1) That conditions of overcrowding exist in one or more
attendance areas within the district which
that will impair the normal functioning of educational programs
, including the reason for the existence of those
conditions.
(2) That all reasonable methods of mitigating conditions of
overcrowding have been evaluated and no feasible method for reducing
those conditions exist.
(b) (1) The notice of findings sent to the
city or county pursuant to subdivision (a) shall specify the
mitigation measures considered by the school district. The notice of
findings shall include a completed application to the Office of
Public School Construction for preliminary determination of
eligibility under the Leroy F. Greene State School Building
Lease-Purchase Law of 1976 (Chapter 22 12
(commencing with Section 17700) 17000)
of Part 10 of the Education Code). The city council or board of
supervisors shall take no action on the notice of findings sent to
the city or county pursuant to subdivision (a) until the findings
have been made available to the public for 60 days after the date of
receipt by the city or county. The city council or board of
supervisors shall either concur or not concur in the notice of
findings within 61 days to 150 days after the date of receipt of the
findings. The city council or board of supervisors may extend the
period to concur or not to concur for one 30-day period. The failure
of the city council or board of supervisors to either concur or not
concur within the time period prescribed in this subdivision shall
not be deemed as an act of concurrence in the notice of findings by
the council or board.
(2) The date of receipt of the notice of
findings is the date when all of the materials required by this
section are completed and filed by the school district with the city
council or board of supervisors.
(3) If the city council or board of
supervisors concurs in those findings, Section 65972 shall be
applicable to actions taken on residential development by the city
council or board of supervisors.
SEC. 316. Section 65973 of the Government Code is amended to read:
65973. As used in this chapter , the following terms
means have the following meanings :
(a) "Conditions of overcrowding" means that the total enrollment
of a school, including enrollment from proposed development, exceeds
the capacity of the school as determined by the governing body of the
district.
(b) "Reasonable methods for mitigating conditions of overcrowding"
shall include includes , but
are is not limited to, agreements between a
subdivider or builder and the affected school district whereby
temporary-use buildings will be leased to the school district or
temporary-use buildings owned by the school district will be used and
agreements between the affected school district and other school
districts whereby the affected school district agrees to lease or
purchase surplus or underutilized school facilities from other school
districts.
(c) "Residential development" means a project containing
residential dwellings, including mobilehomes, of one or more units or
a subdivision of land for the purpose of constructing one or more
residential dwelling units.
SEC. 317. Section 65974 of the Government Code is amended to read:
65974. (a) For the purpose of establishing an interim method of
providing classroom facilities where overcrowded conditions exist, as
determined necessary pursuant to Section 65971, and notwithstanding
Section 66478, a city, county, or city and county may, by ordinance,
require the dedication of land, the payment of fees in lieu thereof,
or a combination of both, for classroom and related facilities for
elementary or high schools as a condition to the approval of a
residential development, if all of the following occur:
(1) The general plan provides for the location of public schools.
(2) The ordinance has been in effect for a period of 30 days prior
to the implementation of the dedication or fee requirement.
(3) The land or fees, or both, transferred to a school district
shall be used only for the purpose of providing interim elementary or
high school classroom and related facilities. If fees are paid in
lieu of the dedication of land and those fees are utilized to
purchase land, no more land shall be purchased than is necessary for
the placement thereon of interim facilities.
(4) The location and amount of land to be dedicated or the amount
of fees to be paid, or both, shall bear a reasonable relationship and
be limited to the needs of the community for interim elementary or
high school facilities and shall be reasonably related and limited to
the need for schools caused by the development. However, the value
of the land to be dedicated or the amount of fees to be paid, or
both, shall not exceed the amount necessary to pay five annual lease
payments for the interim facilities. In lieu of the dedication of
land or the payment of fees, or both, the builder of a residential
development may, at his or her option and at his or her expense,
provide interim facilities, owned or controlled by the builder, at
the place designated by the school district, and at the conclusion of
the fifth school year the builder shall, at the builder's expense,
remove the interim facilities from that place.
(5) A finding is made by the city council or board of supervisors
that the facilities to be constructed from the fees or the land to be
dedicated, or both, is consistent with the general plan.
(b) The ordinance may specify the methods for mitigating the
conditions of overcrowding which that
the school district shall consider when making the finding required
by paragraph (2) of subdivision (a) of Section 65971.
(c) If the payment of fees is required, the payment shall be made
at the time the building permit is issued or at a later time as may
be specified in the ordinance.
(d) Only the payment of fees may be required in subdivisions
containing 50 parcels or less.
(e) (1) Notwithstanding any other provision
of this chapter, contracts entered into or contracts to be entered
into pursuant to a school facilities master plan administered by a
joint powers authority created under Chapter 5 (commencing with
Section 6500) of Division 7 of Title 1 of the Government
Code for a designated community plan area adopted by a
city, county, or city and county, whether general law or chartered,
on or before September 1, 1986, that requires the payment of a fee,
charge, or dedication for the construction of school facilities as a
condition to the approval of residential development shall not be
subject to the provisions of subdivision (b) of
Section 65995. However, in determining developer fees under that
school facilities master plan, the cost and maximum building area
standards for school buildings prescribed by Chapter 22
12 (commencing with Section 17700)
17000) of Part 10 of the Education Code shall
apply, and the school district or districts involved are required to
have on file with the Office of Public School Construction, and
actively pursue in good faith, an application for preliminary
determination of eligibility for project funding under that chapter,
and shall actively pursue in good faith the establishment of a
community capital facilities district or other permanent financing
mechanisms to reduce or eliminate developer fees.
(2) Any fees collected or land dedicated
after September 1, 1986, pursuant to this section, and not used to
avoid overcrowding of the facilities to be built pursuant to the
school facilities master plan, shall be subject to disposition in
accordance with subdivision (b) of Section 65979.
(3) Fees collected in excess of the
limitations set forth in subdivision (b) of Section 65995 for schools
constructed under that school facilities master plan shall neither
advantage nor disadvantage a school district's application for
project funding under Chapter 22 12
(commencing with Section 17700) 17000)
of Part 10 of the Education Code.
SEC. 318. Section 65979 of the Government Code is amended to read:
65979. (a) One year after receipt of an apportionment pursuant to
the Leroy F. Greene State School Building Lease-Purchase Law of 1976
(Chapter 22 12 (commencing with
Section 17700 17000 of Part 10 of the
Education Code) for the construction of a school, the city or county
shall not be permitted thereafter, pursuant to this chapter or
pursuant to any other school facilities financing arrangement the
district may have with builders of residential development, to levy
any fee or to require the dedication of any land within the
attendance area of the school for which the apportionment was
received. However, any time after receipt of the apportionment there
may be a determination of overcrowding pursuant to Section 65971, if
both of the following further findings are made:
(1) That during the period of construction, or after construction
has been completed, additional overcrowding would occur from
continued residential development.
(2) That any fee levied and any required dedication of land levied
after the receipt of the construction apportionment can be used to
avoid the additional overcrowding prior to the school being available
for use by the school district.
(b) Any amounts of fees collected or land dedicated after the
receipt of the construction apportionment and not used to avoid
overcrowding shall be returned to the person who paid the fee or made
the land dedication.
SEC. 319. Section 66000 of the Government Code is amended to read:
66000. As used in this chapter , the following terms have
the foll owing meanings :
(a) "Development project" means any project undertaken for the
purpose of development. "Development project" includes a project
involving the issuance of
a permit for construction or reconstruction, but not a permit to
operate.
(b) "Fee" means a monetary exaction other than a tax or special
assessment, whether established for a broad class of projects by
legislation of general applicability or imposed on a specific project
on an ad hoc basis, that is charged by a local agency to the
applicant in connection with approval of a development project for
the purpose of defraying all or a portion of the cost of public
facilities related to the development project, but does not include
fees specified in Section 66477, fees for processing applications for
governmental regulatory actions or approvals, fees collected under
development agreements adopted pursuant to Article 2.5 (commencing
with Section 65864) of Chapter 4, or fees collected pursuant to
agreements with redevelopment agencies which
that provide for the redevelopment of property in furtherance
or for the benefit of a redevelopment project for which a
redevelopment plan has been adopted pursuant to the Community
Redevelopment Law (Part 1 (commencing with Section 33000) of Division
24 of the Health and Safety Code Code)
.
(c) "Local agency" means a county, city, whether general law or
chartered, city and county, school district, special district,
authority, agency, any other municipal public corporation or
district, or other political subdivision of the state.
(d) "Public facilities" includes public improvements, public
services , and community amenities.
SEC. 320. Section 66017 of the Government Code is amended to read:
66017. (a) Any action adopting a fee or charge, or increasing a
fee or charge adopted, upon a development project, as defined in
Section 66000, which applies to the filing, accepting, reviewing,
approving, or issuing of an application, permit, or entitlement to
use shall be enacted in accordance with the notice and public hearing
procedures specified in Section 54986 or 66016 and shall be
effective no sooner that than 60 days
following the final action on the adoption of the fee or charge or
increase in the fee or charge.
(b) Without following the procedure otherwise required for the
adoption of a fee or charge, or increasing a fee or charge, the
legislative body of a local agency may adopt an urgency measure as an
interim authorization for a fee or charge, or increase in a fee or
charge, to protect the public health, welfare and safety. The interim
authorization shall require four-fifths vote of the legislative body
for adoption. The interim authorization shall have no force or
effect 30 days after its adoption. The interim authority shall
contain findings describing the current and immediate threat to the
public health, welfare , and safety. After notice and
public hearing pursuant to Section 54986 or 66016, the legislative
body may extend the interim authority for an additional 30 days. Not
more than two extensions may be granted. Any extension shall also
require a four-fifths vote of the legislative body.
SEC. 321. Section 67401 of the Government Code is amended to read:
67401. The provisions of this interstate compact are as follows:
Western Interstate Nuclear CompactArticle I. Policy and Purpose
The party states recognize that the proper employment of
scientific and technological discoveries and advances in nuclear and
related fields and direct and collateral application and adaptation
of processes and techniques developed in connection therewith,
properly correlated with the other resources of the region, can
assist substantially in the industrial progress of the West and the
further development of the economy of the region. They also recognize
that optimum benefit from nuclear and related scientific or
technological resources, facilities and skills requires systematic
encouragement, guidance, assistance, and promotion from the party
states on a cooperative basis. It is the policy of the party states
to undertake such cooperation on a continuing basis. It is the
purpose of this compact to provide the instruments and framework for
such a cooperative effort in nuclear and related fields, to enhance
the economy of the West and contribute to the individual and
community well-being of the region's people.
Article II. The Board
(a) There is hereby created an agency of the party states to be
known as the "Western Interstate Nuclear Board" (hereinafter called
the board). The board shall be composed of one member from each party
state designated or appointed in accordance with the law of the
state which he represents and serving and subject to removal in
accordance with such law. Any member of the board may provide for the
discharge of his duties and the performance of his functions thereon
(either for the duration of his membership or for any lesser period
of time) by a deputy or assistant, if the laws of his state make
specific provisions therefor. The federal government may be
represented without vote if provision is made by federal law for such
representation.
(b) The board members of the party states shall each be entitled
to one vote on the board. No action of the board shall be binding
unless taken at a meeting at which a majority of all members
representing the party states are present and unless a majority of
the total number of votes on the board are cast in favor thereof.
(c) The board shall have a seal.
(d) The board shall elect annually, from among its members, a
chairman, a vice chairman, and a treasurer. The board shall appoint
and fix the compensation of an executive director who shall serve at
its pleasure and who shall also act as secretary, and who, together
with the treasurer, and such other personnel as the board may direct,
shall be bonded in such amounts as the board may require.
(e) The executive director, with the approval of the board, shall
appoint and remove or discharge such personnel as may be necessary
for the performance of the board's functions irrespective of the
civil service, personnel or other merit system laws of any of the
party states.
(f) The board may establish and maintain, independently or in
conjunction with any one or more of the party states, or its
institutions or subdivisions, a suitable retirement system for its
full-time employees. Employees of the board shall be eligible for
social security coverage in respect of old age and survivors
insurance provided that the board takes such steps as may be
necessary pursuant to federal law to participate in such program of
insurance as a governmental agency or unit. The board may establish
and maintain or participate in such additional programs of employee
benefits as may be appropriate.
(g) The board may borrow, accept, or contract for the services of
personnel from any state or the United States or any subdivision or
agency thereof, from any interstate agency, or from any institution,
person, firm or corporation.
(h) The board may accept for any of its purposes and functions
under this compact any and all donations, and grants of money,
equipment, supplies, materials and services (conditional or
otherwise) from any state or the United States or any subdivision or
agency thereof, or interstate agency, or from any institution,
person, firm, or corporation, and may receive, utilize, and dispose
of the same. The nature, amount and conditions, if any, attendant
upon any donation or grant accepted pursuant to this paragraph or
upon any borrowing pursuant to paragraph (g) of this article,
together with the identity of the donor, grantor or lender, shall be
detailed in the annual report of the board.
(i) The board may establish and maintain such facilities as may be
necessary for the transacting of its business. The board may
acquire, hold, and convey real and personal property and any interest
therein.
(j) The board shall adopt bylaws, rules, and regulations for the
conduct of its business, and shall have the power to amend and
rescind these bylaws, rules, and regulations. The board shall publish
its bylaws, rules, and regulations in convenient form and shall file
a copy thereof, and shall also file a copy of any amendment thereto,
with the appropriate agency or officer in each of the party states.
(k) The board annually shall make to the governor of each party
state, a report covering the activities of the board for the
preceding year, and embodying such recommendations as may have been
adopted by the board, which report shall be transmitted to the
legislature of said state. The board may issue such additional
reports as it may deem desirable.
Article III. Finances
(a) The board shall submit to the Governor or designated officer
or officers of each party state a budget of its estimated
expenditures for such period as may be required by the laws of that
jurisdiction for presentation to the legislature thereof.
(b) Each of the board's budgets of estimated expenditures shall
contain specific recommendations of the amount or amounts to be
appropriated by each of the party states. Each of the board's
requests for appropriations pursuant to a budget of estimated
expenditures shall be apportioned equally among the party states.
Subject to appropriation by their respective legislatures, the board
shall be provided with such funds by each of the party states as are
necessary to provide the means of establishing and maintaining
facilities, a staff of personnel, and such activities as may be
necessary to fulfill the powers and duties imposed upon and entrusted
to the board.
(c) The board may meet any of its obligations in whole or in part
with funds available to it under Article II(h) of this compact;
provided, that the board takes specific action setting aside such
funds prior to the incurring of any obligation to be met in whole or
in part in this manner. Except where the board makes use of funds
available to it under Article II(h), the board shall not incur any
obligation prior to the allotment of funds by the party jurisdictions
which are adequate to meet any such obligation.
(d) Any expenses and any other costs for each member of the board
in attending board meeting meetings
shall be met by the board.
(e) The board shall keep accurate accounts of all receipts and
disbursements. The receipts and disbursements of the board shall be
subject to the audit and accounting procedures established under its
bylaws. However, all receipts and disbursements of funds handled by
the board shall be audited yearly by a certified or licensed public
accountant and the report of the audit shall be included in and
become a part of the annual report of the board.
(f) The accounts of the board shall be open at any reasonable time
for inspection to persons authorized by the board, and duly
designated representatives of governments contributing to the board's
support.
Article IV. Advisory Committees
The board may establish such advisory and technical committees as
it may deem necessary, membership on which may include but not be
limited to private citizens, expert and lay personnel,
representatives of industry, labor, commerce, agriculture, civic
associations, medicine, education, voluntary health agencies, and
officials of local, state and federal government, and may cooperate
with and use the services of any such committees and the
organizations which they represent in furthering any of its
activities under this compact.
Article V. Powers
The board shall have power to:
(a) Encourage and promote cooperation among the party states in
the development and utilization of nuclear and related technologies
and their application to industry and other fields.
(b) Ascertain and analyze on a continuing basis the position of
the West with respect to the employment in industry of nuclear and
related scientific findings and technologies.
(c) Encourage the development and use of scientific advances and
discoveries in nuclear facilities, energy, materials, products,
byproducts, and all other appropriate adaptations of scientific and
technological advances and discoveries.
(d) Collect, correlate, and disseminate information relating to
the peaceful uses of nuclear energy, materials, and products, and
other products and processes resulting from the application of
related science and technology.
(e) Encourage the development and use of nuclear energy,
facilities, installations, and products as part of a balanced
economy.
(f) Conduct, or cooperate in conducting, programs of training for
state and local personnel engaged in any aspects of:
1. Nuclear industry, medicine, or education, or the promotion or
regulation thereof.
2. Applying nuclear scientific advances or discoveries, and any
industrial commercial or other processes resulting therefrom.
3. The formulation or administration of measures designed to
promote safety in any matter related to the development, use or
disposal of nuclear energy, materials, products, byproducts,
installations, or wastes, or to safety in the production, use and
disposal of any other substances peculiarly related thereto.
(g) Organize and conduct, or assist and cooperate in organizing
and conducting, demonstrations or research in any of the scientific,
technological or industrial fields to which this compact relates.
(h) Undertake such nonregulatory functions with respect to
nonnuclear sources of radiation as may promote the economic
development and general welfare of the West.
(i) Study industrial, health, safety, and other standards, laws,
codes, rules, regulations, and administrative practices in or related
to nuclear fields.
(j) Recommend such changes in, or amendments or additions to the
laws, codes, rules, regulations, administrative procedures and
practices or local laws or ordinances of the party states or their
subdivisions in nuclear and related fields, as in its judgment may be
appropriate. Any such recommendations shall be made through the
appropriate state agency, with due consideration of the desirability
of uniformity but shall also give appropriate weight to any special
circumstances which may justify variations to meet local conditions.
(k) Consider and make recommendations designed to facilitate the
transportation of nuclear equipment, materials, products, byproducts,
wastes, and any other nuclear or related substances, in such manner
and under such conditions as will make their availability or disposal
practicable on an economic and efficient basis.
(l) Consider and make recommendations with respect to the
assumption of and protection against liability actually or
potentially incurred in any phase of operations in nuclear and
related fields.
(m) Advise and consult with the federal government concerning the
common position of the party states or assist party states with
regard to individual problems where appropriate in respect to nuclear
and related fields.
(n) Cooperate with the Atomic Energy Commission, the National
Aeronautics and Space Administration, the Office of Science and
Technology, or any agencies successor thereto, any other officer or
agency of the United States, and any other governmental unit or
agency or officer thereof, and with any private persons or agencies
in any of the fields of its interest.
(o) Act as licensee, contractor or subcontractor of the United
States government or any party state with respect to the conduct of
any research activity requiring such license or contract and operate
such research facility or undertake any program pursuant thereto,
provided that this power shall be exercised only in connection with
the implementation of one or more other powers conferred upon the
board by this compact.
(p) Prepare, publish and distribute (with or without charge) such
reports, bulletins, newsletters or other materials as it deems
appropriate.
(q) Ascertain from time to time such methods, practices,
circumstances, and conditions as may bring about the prevention and
control of nuclear incidents in the area comprising the party states,
to coordinate the nuclear incident prevention and control plans and
the work relating thereto of the appropriate agencies of the party
states and to facilitate the rendering of aid by the party states to
each other in coping with nuclear incidents.
The board may formulate and, in accordance with need from time to
time, revise a regional plan or regional plans for coping with
nuclear incidents within the territory of the party states as a whole
or within any subregion or subregions of the geographic area covered
by this compact.
Any nuclear incident plan in force pursuant to this paragraph
shall designate the official or agency in each party state covered by
the plan who shall coordinate requests for aid pursuant to Article
VI of this compact and the furnishing of aid in response thereto.
Unless the party states concerned expressly otherwise agree, the
board shall not administer the summoning and dispatching of aid, but
this function shall be undertaken directly by the designated agencies
and officers of the party states.
However, the plan or plans of the board in force pursuant to this
paragraph shall provide for reports to the board concerning the
occurrence of nuclear incidents and the requests for aid on account
thereof, together with summaries of the actual working and
effectiveness of mutual aid in particular instances.
From time to time, the board shall analyze the information
gathered from reports of aid pursuant to Article VI and such other
instances of mutual aid as may have come to its attention, so that
experience in the rendering of such aid may be available.
(r) Prepare, maintain, and implement a regional plan or regional
plans for carrying out the duties, powers, or functions conferred
upon the board by this compact.
(s) Undertake responsibilities imposed or necessarily involved
with regional participation pursuant to such cooperative programs of
the federal government as are useful in connection with the fields
covered by this compact.
Article VI. Mutual Aid
(a) Whenever a party state, or any state or local governmental
authorities request aid from any other party state pursuant to this
compact in coping with a nuclear incident, it shall be the duty of
the requested state to render all possible aid to the requesting
state which is consonant with the maintenance of protection of its
own people.
(b) Whenever the officers or employees of any party state are
rendering outside aid pursuant to the request of another party state
under this compact, the officers or employees of such state shall,
under the direction of the authorities of the state to which they are
rendering aid, have the same powers, duties, rights, privileges and
immunities as comparable officers and employees of the state to which
they are rendering aid.
(c) No party state or its officers or employees rendering outside
aid pursuant to this compact shall be liable on account of any act or
omission on their part while so engaged, or on account of the
maintenance or use of any equipment or supplies in connection
therewith.
(d) All liability that may arise either under the laws of the
requesting state or under the laws of the aiding state or under the
laws of a third state on account of or in connection with a request
for aid, shall be assumed and borne by the requesting state.
(e) Any party state rendering outside aid pursuant to this compact
shall be reimbursed by the party state receiving such aid for any
loss or damage to, or expense incurred in the operation of any
equipment answering a request for aid, and for the cost of all
materials, transportation, wages, salaries and maintenance of
officers, employees and equipment incurred in connection with such
requests: provided that nothing herein contained shall prevent any
assisting party state from assuming such loss, damage, expense or
other cost or from loaning such equipment or from donating such
services to the receiving party state without charge or cost.
(f) Each party state shall provide for the payment of compensation
and death benefits to injured officers and employees and the
representatives of deceased officers and employees in case officers
or employees sustain injuries or death while rendering outside aid
pursuant to this compact, in the same manner and on the same terms as
if the injury or death were sustained within the state by or in
which the officer or employee was regularly employed.
Article VII. Supplementary Agreements
(a) To the extent that the board has not undertaken an activity or
project which would be within its power under the provisions of
Article V of this compact, any two or more of the party states
(acting by their duly constituted administrative officials) may enter
into supplementary agreements for the undertaking and continuance of
such an activity or project. Any such agreement shall specify the
purpose or purposes; its duration and the procedure for termination
thereof or withdrawal therefrom; the method of financing and
allocating the costs of the activity or project; and such other
matters as may be necessary or appropriate.
No such supplementary agreement entered into pursuant to this
article shall become effective prior to its submission to and
approval by the board. The board shall give such approval unless it
finds that the supplementary agreement or activity or project
contemplated thereby is inconsistent with the provisions of this
compact or a program or activity conducted by or participated in by
the board.
(b) Unless all of the party states participate in a supplementary
agreement, any cost or costs thereof shall be borne separately by the
states party thereto. However, the board may administer or otherwise
assist in the operation of any supplementary agreement.
(c) No party to a supplementary agreement entered into pursuant to
this article shall be relieved thereby of any obligation or duty
assumed by said party state under or pursuant to this compact, except
that timely and proper performance of such obligation or duty by
means of the supplementary agreement may be offered as performance
pursuant to the compact.
(d) The provisions of this article shall apply to supplementary
agreements and activities thereunder, but shall not be construed to
repeal or impair any authority which officers or agencies of party
states may have pursuant to other laws to undertake cooperative
arrangements or projects.
Article VIII. Other Laws and Relations
Nothing in this compact shall be construed to have the following
effect:
(a) Permit or require any person or other entity to avoid or
refuse compliance with any law, rule, regulation, order or ordinance
of a party state or subdivision thereof now or hereafter made,
enacted or in force.
(b) Limit, diminish, or otherwise impair jurisdiction exercised by
the Atomic Energy Commission, any agency successor thereto, or any
other federal department, agency or officer pursuant to and in
conformity with any valid and operative act of Congress; nor limit,
diminish, affect, or otherwise impair jurisdiction exercised by any
officer or agency of a party state, except to the extent that the
provisions of this compact may provide therefor.
(c) Alter the relations between and respective internal
responsibilities of the government of a party state and its
subdivisions.
(d) Permit or authorize the board to own or operate any facility,
reactor, or installation for industrial or commercial purposes.
Article IX. Eligible Parties, Entry Into Force and Withdrawal
(a) Any or all of the States of Alaska, Arizona, California,
Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico, Oregon, Utah,
Washington, and Wyoming shall be eligible to become party to this
compact.
(b) As to any eligible party state, this compact shall become
effective when its legislature shall have enacted the same into law;
provided, that it shall not become initially effective until enacted
into law by five states.
(c) Any party state may withdraw from this compact by enacting a
statute repealing the same, but no such withdrawal shall take effect
until two years after the Governor of the withdrawing state has given
notice in writing of the withdrawal to the Governors of all other
party states. No withdrawal shall affect any liability already
incurred by or chargeable to a party state prior to the time of such
withdrawal.
(d) Guam and American Samoa, or either of them may participate in
the compact to such extent as may be mutually agreed by the board and
the duly constituted authorities of Guam or American Samoa, as the
case may be. However, such participation shall not include the
furnishing or receipt of mutual aid pursuant to Article VI, unless
that article has been enacted or otherwise adopted so as to have the
full force and effect of law in the jurisdiction affected. Neither
Guam nor American Samoa shall be entitled to voting participation on
the board, unless it has become a full party to the compact.
Article X. Severability and Construction
The provisions of this compact and of any supplementary agreement
entered into hereunder shall be severable and if any phrase, clause,
sentence or provision of this compact or such supplementary agreement
is declared to be contrary to the constitution of any participating
state or of the United States or the applicability thereof to any
government, agency, person, or circumstance is held invalid, the
validity of the remainder of this compact or such supplementary
agreement and the applicability thereof to any government, agency,
person or circumstance shall not be affected thereby. If this compact
or any supplementary agreement entered into hereunder shall be held
contrary to the constitution of any state participating therein, the
compact or such supplementary agreement shall remain in full force
and effect as to the remaining states and in full force and effect as
to the state affected as to all severable matters. The provisions of
this compact and of any supplementary agreement entered into
pursuant thereto shall be liberally construed to effectuate the
purposes thereof.
SEC. 322. Section 68058 of the Government Code is amended to read:
68058. Unless the context otherwise requires, the following
definitions govern the construction of this title:
(a) "Annual operating revenue" means revenue and support from all
sources except capital construction revenue, designated funds for
capital needs, Fresno Metropolitan Projects Authority revenue, and
in-kind revenue. Revenue from events, auxiliary programs ,
and special programs shall be
net of expenses.
(b) "Authority" means the Fresno Metropolitan Projects Authority.
(c) "Board" means the Board of Directors of the Fresno
Metropolitan Projects Authority.
(d) "Cultural facility or program" means a nonprofit institutional
organization which that meets the
requirements of Section 501(c)(3) of the federal Internal Revenue
Code of 1986, as amended, or program thereof having as its primary
purpose the advancement and preservation of art, music, history,
literature, theater, or dance. This does not include any agency of
local government, the state, any educational institution, any cable
communications system, or any newspaper or magazine.
(e) "Multicultural facility and program" means a nonprofit
institutional organization which that
meets the requirements of Section 501(c)(3) of the federal Internal
Revenue Code of 1986, as amended, or program thereof having as its
primary purpose advancement and preservation of the various ethnic
populations of the area and the promotion of public education and
understanding of those populations. This does not include any agency
of local government, the state, any educational institution, any
cable communications system, or any newspaper or magazine.
(f) "Paid attendance" means the total paid attendance at all
programs as verified by annual audit reports.
(g) "Proceeds" means the revenues from the retail transactions and
use taxes imposed pursuant to this title and remaining after payment
of operating and administrative expenses, including charges by the
State Board of Equalization for collection and distribution, not to
exceed 3.5 percent of revenues.
(h) "Scientific facility and program" means a nonprofit
institutional organization which that
meets the requirements of Section 501(c)(3) of the federal Internal
Revenue Code of 1986, as amended, or program thereof having as its
primary purpose the advancement and preservation of physical
sciences, natural sciences, or natural history. This does
not include any agency of local government, the state, any
educational institution, any cable communications system, or any
newspaper or magazine.
(i) "Public Broadcast Entity" broadcast
entity" means an on-the-air radio or television station
operating under a noncommercial educational license granted by the
Federal Communications Commission and that is not owned, operated, or
controlled by any religious or political organization.
SEC. 323. Section 68059.15 of the Government Code is amended to
read:
68059.15. Any action or proceeding in which the validity of the
adoption of the retail transactions and use tax ordinance provided
for in this title or any of the proceedings in relation thereto is
contested, questioned, or denied, shall be commenced pursuant to
Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the
Code of Civil Procedure within six months from the date of the
election at which the ordinance is approved. Otherwise, the bonds and
all proceedings in relation thereto, including the adoption and
approval of the ordinance and the retail transactions and use tax
provided for therein, shall be held to be valid and in every respect
legal and incontestible incontestable .
SEC. 324. Section 68503 of the Government Code is amended to read:
68503. Members of such committees
appointed pursuant to Section 68501 shall receive no
compensation from the State state for
their services. When called into session by the Chairman
Chairperson of the Judicial Council,
they members shall receive their actual and
necessary expenses for travel, board, and lodging, which shall be
paid from the funds appropriated to the use of the council.
Such These expenses shall be approved in
such the manner as
that the council directs, and shall be audited by the
Controller in accordance with the rules of the Board of
Control California Victim Compensation and Government
Claims Board .
SEC. 325. Section 68506 of the Government Code is amended to read:
68506. All salaries and expenses incurred by the council pursuant
to this article, including the necessary expenses for travel, board,
and lodging of the members of the council and its officers,
assistants, and other employees incurred in the performance of the
duties and business of the council, shall be paid from the funds
appropriated for the use of the council. Such
The salaries and expenses shall be approved in such
the manner as that
the council directs, and shall be audited by the Controller in
accordance with the rules of the Board of Control
California Victim Compensation and Government Claims Board
.
SEC. 326. Section 68511.3 of the Government Code is amended to
read:
68511.3. (a) The Judicial Council shall formulate and adopt
uniform forms and rules of court for litigants proceeding in forma
pauperis. These rules shall provide for all of the following:
(1) Standard procedures for considering and determining
applications for permission to proceed in forma pauperis, including,
in the event of a denial of permission, a written statement detailing
the reasons for denial and an evidentiary hearing where
if there is a substantial evidentiary conflict.
(2) Standard procedures to toll relevant time limitations when a
pleading or other paper accompanied by the application is timely
lodged with the court and delay is caused due to the processing of
the application to proceed in forma pauperis.
(3) Proceeding in forma pauperis at every stage of the proceedings
at both the appellate and trial levels of the court system.
(4) The confidentiality of the financial information provided to
the court by these litigants.
(5) That the court may authorize the clerk of the court, county
financial officer, or other appropriate county officer to make
reasonable efforts to verify the litigant's financial condition
without compromising the confidentiality of the application.
(6) That permission to proceed in forma pauperis be granted to all
of the following:
(A) Litigants who are receiving benefits pursuant to the
Supplemental Security Income (SSI) and State Supplemental Payments
(SSP) programs (Sections 12200 to 12205, inclusive, of the Welfare
and Institutions Code), the California Work Opportunity and
Responsibility to Kids Act (CalWORKs) program (Chapter 2 (commencing
with Section 11200) of Part 3 of Division 9 of the Welfare and
Institutions Code), the Food Stamp Program (7 U.S.C. Sec. 2011 et
seq.), or Section 17000 of the Welfare and Institutions Code.
(B) Litigants whose monthly income is 125 percent or less of the
current monthly poverty line annually established by the Secretary of
California Health and Human Services pursuant to the
Omnibus Budget Reconciliation Act of 1981, as amended.
(C) Other persons when , in the court's discretion,
this permission is appropriate because the litigant is unable to
proceed without using money which that
is necessary for the use of the litigant or the litigant's family to
provide for the common necessaries of life.
(b) (1) Litigants who apply for permission to proceed in forma
pauperis pursuant to subparagraph (A) of paragraph (6) of subdivision
(a) shall declare under penalty of perjury that they are receiving
the benefits , and may voluntarily provide the court with
their date of birth and social security number or their Medi-Cal
identification number to permit the court to verify the applicant's
receipt of public assistance. The court may require any applicant,
except a defendant in an unlawful detainer action, who chooses not to
disclose his or her social security number for verification purposes
to attach to the application documentation of benefits to support
the claim and all other financial information on a form promulgated
by the Judicial Council for this purpose.
(2) Litigants who apply for permission to proceed in forma
pauperis pursuant to subparagraph (B) or (C) of paragraph (6) of
subdivision (a) shall file a financial statement under oath on a form
promulgated by, and pursuant to rules adopted by, the Judicial
Council.
(c) (1) The forms and rules adopted by the
Judicial Council shall provide for the disclosure of the following
information about the litigant:
(1)
(A) Current street address.
(2)
(B) Occupation and employer.
(3)
(C) Monthly income and expenses.
(4)
(D) Address and value of any real property owned
directly or beneficially.
(5)
(E) Personal property with a value that exceeds five
hundred dollars ($500).
(2) The information furnished by the
litigant shall be used by the court in determining his or her ability
to pay all or a portion of the fees and costs.
(d) (1) At any time after the court has
granted a litigant permission to proceed in forma pauperis ,
and prior to final disposition of the case, the clerk of the
court, county financial officer, or other appropriate county officer
may notify the court of any changed financial circumstances
which that may enable the litigant to pay all or
a portion of the fees and costs which that
had been waived. The court may authorize the clerk of the
court, county financial officer, or other appropriate county officer
to require the litigant to appear before and be examined by the
person authorized to ascertain the validity of their
his or her indigent status. However, no litigant
shall be required to appear more than once in any four-month period.
A litigant proceeding in forma pauperis shall notify the court
within five days of any settlement or monetary consideration received
in settlement of this litigation and of any other change in
financial circumstances that affects the litigant's ability to pay
court fees and costs. After the litigant either (1)
(A) appears before and is examined by the person
authorized to ascertain the validity of his or her indigent status
, or (2) (B) notifies the
court of a change in financial circumstances, the court may then
order the litigant to pay to the court the sum and in any manner the
court believes is compatible with the litigant's financial ability.
(2) In any action or proceeding in which the
litigant whose fees and costs have been waived would have been
entitled to recover those fees and costs from another party to the
action or proceeding had they been paid, the court may assess the
amount of the waived fees and costs against the other party and order
the other party to pay that sum to the court or to the clerk and
serving and levying officers respectively, or the court may order the
amount of the waived fees and costs added to the judgment and so
identified by the clerk.
(3) Execution may be issued on any order
provided for in this subdivision in the same manner as on a judgment
in a civil action. When an amount equal to the sum due and payable to
the clerk has been collected upon the judgment, these amounts shall
be remitted to the clerk within 30 days. Thereafter, when an amount
equal to the sum due to the serving and levying officers has been
collected upon the judgment, these amounts shall be due and payable
to those officers and shall be remitted within 30 days. If the
remittance is not received by the clerk within 30 days ,
or there is a filing of a partial satisfaction of judgment in an
amount at least equal to the fees and costs payable to the clerk
, or a satisfaction of judgment has been filed,
notwithstanding any other provision of law, the court may issue an
abstract of judgment, writ of execution, or both for recovery of
those sums, plus the fees for issuance and execution and an
additional fee for administering this section. The court shall
establish a fee, not to exceed actual costs of administering this
subdivision , and in no case exceeding twenty-five dollars
($25), which that shall be added to
the writ of execution.
(e) Notwithstanding subdivision (a), a person who is sentenced to
imprisonment in a the state prison or
confined in a county jail and, during the period of imprisonment or
confinement, files a civil action or notice of appeal of a civil
action in forma pauperis shall be required to pay the full amount of
the filing fee to the extent provided in this subdivision.
as follows:
(1) In addition to the form required by this section for filing in
forma pauperis, an inmate shall file a copy of a statement of
account for any sums due to the inmate for the six-month period
immediately preceding the filing of the civil action or notice of
appeal of a civil action. This copy shall be certified by the
appropriate official of the Department of Corrections and
Rehabilitation or a county jail.
(2) Upon filing the civil action or notice of appeal of a civil
action, the court shall assess, and when funds exist, collect, as a
partial payment of any required court fees, an initial partial filing
fee of 20 percent of the greater of one of the
following:
(A) The average monthly deposits to the inmate's account.
(B) The average monthly balance in the inmate's account for the
six-month period immediately preceding the filing of the civil action
or notice of appeal.
(3) After payment of the initial partial filing fee, the inmate
shall be required to make monthly payments of 20 percent of the
preceding month's income credited to the inmate's account. The
Department of Corrections and Rehabilitation shall forward
payments from this account to the clerk of the court each time the
amount in the account exceeds ten dollars ($10) until the filing fees
are paid.
(4) In no event shall the filing fee collected pursuant to this
subdivision exceed the amount of fees permitted by law for the
commencement of a civil action or an appeal of a civil action.
(5) In no event shall an inmate be prohibited from bringing a
civil action or appeal of a civil action solely because the inmate
has no assets and no means to pay the initial partial filing fee.
SEC. 327. Section 68543 of the Government Code is amended to read:
68543. The extra compensation and expenses for travel, board, and
lodging of judges sitting in the Supreme Court and courts of appeal
under assignments made by the Chairperson of the Judicial Council
shall be paid by the state under the rules adopted by the
Board of Control which California Victim Compensation
and Government Claims Board that are applicable to officers of
the state provided for in Article VI of the California
Constitution while traveling on official state business.
SEC. 328. Section 68543.5 of the Government Code is amended to
read:
68543.5. (a) Whenever a judge who has retired under the Judges'
Retirement System or the Judges' Retirement System II is assigned to
serve in a court of record, the state shall pay the judge for each
day of service in the court in the amount specified in Section
68543.7, without loss or interruption of retirement benefits, unless
the judge waives compensation under this section. Whenever a retired
judge of a justice court who is not a member of the Judges'
Retirement System nor the Judges' Retirement System II is assigned to
serve in a court of record, the state shall pay the judge for each
day of service in the court in the amount specified in Section
68543.7, or the compensation specified in Section 68541, whichever is
greater. The compensation shall be paid by the Judicial Council out
of any appropriation for extra compensation of judges assigned by the
Chairperson of the Judicial Council.
(b) If a judge who has retired under the Judges' Retirement System
or the Judges' Retirement System II is assigned to serve in a court
of record, the 8-percent difference between the compensation of the
retired judge while so assigned and the compensation of a judge of
the court to which the retired judge is assigned shall be paid to the
Judges' Retirement Fund or the Judges' Retirement System II Fund, as
applicable.
(c) During the period of assignment, a retired judge shall be
allowed expenses for travel, board, and lodging incurred in the
discharge of the assignment. When assigned to sit in the county in
which he or she resides, the judge shall be allowed expenses for
travel and board incurred in the discharge of the assignment. The
expenses for travel, board, and lodging shall be paid by the state
under the rules adopted by the Board of Control
California Victim Compensation and Government Claims Board
that are applicable to officers of the state provided for in Article
VI of the California Constitution while traveling on
official state business.
(d) Notwithstanding the above provisions
subdivisions (a), (b), and (c) pertaining to compensation, a
retired judge on senior judge status shall receive compensation from
the state as provided in Sections 75028 and 75028.2, and shall be
allowed expenses for travel, board, and lodging incurred in the
discharge of the assignment as provided in this section.
SEC. 329. Section 68543.8 of the Government Code is amended to
read:
68543.8. (a) The Legislature finds that there is a shortage of
judicial officers available to provide temporary assistance to courts
in rural counties, under assignment by the chief justice. When
courts are unable to obtain temporary assistance, delay of both civil
trials and case settlements occur. The availability of an assigned
judge can substantially reduce these delays. The purpose of this
section is to make judicial assistance more available.
(b) The Judicial Council shall contract with up to 10 retired
judges who shall be available to be assigned up to 110 court days
each year by the Chairperson of the Judicial Council to courts in
counties which that have requested
these judges for purposes of reducing delays in civil trials in those
courts. If counties request more than 10 retired judges pursuant to
this section, the Judicial Council shall give priority in assigning
the retired judges to counties with fewer than 10 judges.
A judge under contract pursuant to this section shall serve as
assigned during the period of the contract and waives any right to
refuse assignment as otherwise provided by law. This section shall
not be construed to limit the authority of the Chief Justice to make
assignments to expedite judicial business and to equalize the
workload of judges.
(c) Notwithstanding Section 68543.5, each judge under contract
pursuant to this section shall receive one-half of the daily salary
of a superior court judge for each day of service, in addition to any
retirement benefits to which the judge may be entitled.
(d) The assigned judge's salary shall be paid by the state. A
retired judge under contract pursuant to this section shall be
allowed expenses for travel, board, and lodging incurred in the
discharge of each assignment. When assigned to sit in the county in
which he or she resides, the judge shall be allowed necessary and
reasonable expenses for travel and board incurred in the discharge of
the assignment. The expenses for travel, board, and lodging shall be
paid by the state under the rules adopted by the State
Board of Control which California Victim Compensation
and Government Claims Board that are applicable to officers of
the state provided for in Article VI of the California Constitution
while traveling on official state business.
SEC. 330. Section 68565 of the Government Code is amended to read:
68565. (a) The Judicial Council may
establish a court interpreters advisory panel to assist the council
in performing its duties under this article. The panel shall include
a majority of court interpreters and may include judges and court
administrators, members of the bar, and others interested in
interpreter services in the courts. The panel shall develop operating
guidelines and procedures for Judicial Council approval.
(b) The panel shall seek the advice of
judges, attorneys, court administrators, court interpreters,
providers of legal services, and individuals and organizations
representing the interests of foreign language users.
(c) Panel members shall receive no
compensation for their services but shall be allowed necessary
expenses for travel, board, and lodging incurred in the discharge of
their duties under the rules adopted by the Board of Control
California Victim Compensation and Government Claims
Board .
SEC. 331. Section 70622 of the Government Code is amended to read:
70622. (a) In addition to the uniform
filing fee authorized pursuant to Section 70611, 70612, 70613, 70614,
70650, 70651, 70652, 70653, 70655, or 70670, after giving notice and
holding a public hearing on the proposal, the Board of Supervisors
of Riverside County may impose a surcharge not to exceed fifty
dollars ($50) for the filing in superior court of (a) a
any of the following:
(1) A complaint, petition, or
other first paper in a civil or probate action or special proceeding
, (b) a .
(2) A first paper on behalf of any
defendant, respondent, intervenor, or adverse party , (c) a
.
(3) A petition for dissolution of
marriage, dissolution of domestic partnership, legal separation, or
nullity of marriage , (d) a .
(4) A response to such a petition
, or (e) a .
(5) A first paper on behalf of any
party in a proceeding under Section 98.2 of the Labor Code.
The
(b) The county shall notify in
writing the Superior Court of Riverside County and the Administrative
Office of the Courts of any change in a surcharge under this
section. When
(c) When a surcharge under this
section is imposed on a filing fee, the distribution that would
otherwise be made to the State Court Facilities Construction Fund
under subdivision (c) of Section 68085.3 or subdivision (c) of
Section 68085.4 shall be reduced as provided in Section 70603.
(b)
(d) The surcharge shall be in an amount determined to
be necessary by the board of supervisors to cover the costs of the
seismic stabilization, construction, and rehabilitation of the
Riverside County Courthouse, the Indio Branch Courthouse, and the
family law courthouse, and collection thereof shall terminate upon
repayment of the amortized costs incurred. When the amortized costs
have been repaid, the county shall notify in writing the Superior
Court of Riverside County and the Administrative Office of the
Courts.
SEC. 332. Section 75560.4 of the Government Code is amended to
read:
75560.4. (a) A judge who retires for disability shall receive a
retirement allowance in an amount equal to the lower of the
following:
(1) The benefit factor under subdivision (d) of Section 75522
multiplied by the judge's final compensation on the effective date of
the disability retirement , multiplied by the number of
years of service the judge would have been credited if the judge's
service had continued to the age the judge would have first been
eligible to retire under subdivision (a) of Section 75522.
(2) Sixty-five percent of the judge's final compensation on the
effective date of the disability retirement.
(b) Notwithstanding subdivision (a), the retirement allowance of a
judge who retires for disability shall equal 65 percent of the judge'
s final compensation on the effective date of the disability
retirement regardless of the judge's age or length of service, if the
Commission on Judicial Performance determines that the disability is
predominantly a result of injury arising out of and in the course of
judicial service .
SEC. 333. 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, which shall be submitted to the Governor
and the Legislature, shall meet the needs of all trial courts in a
manner that ensures a predictable fiscal environment for labor
negotiations in accordance with the Trial Court Employment Protection
and Governance Act, that promotes equal access to the courts
statewide, and that promotes court financial accountability. The
annual budget request shall include the following components:
(1) In order to ensure that trial court funding is not eroded and
that sufficient funding is provided to trial courts to be able to
accommodate increased costs without degrading the quantity or quality
of court services, a base funding adjustment for operating costs
shall be included that is computed based upon the year-to-year
percentage change in the annual state appropriations limit. For
purposes of this adjustment, operating costs include, but are not
limited to, all expenses for court operations and court employee
salaries and salary-driven benefits, but do not include the costs of
compensation for judicial officers, subordinate judicial officers, or
funding for the assigned judges program.
(2) Nondiscretionary costs necessitated by law or county
government that exceed the annual state appropriations limit and
other adjustments required to accommodate other operational and
programmatic changes shall be separately identified and justified
through the annual budget process.
(b) 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.
(c) (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 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. 334. Section 87102.6 of the Government Code is amended to
read:
87102.6. (a) "Nongeneral legislation" means legislation as to
which both of the following apply:
(1) It is reasonably foreseeable that the legislation will have
direct and significant financial impact on one or more identifiable
persons, or one or more identifiable pieces of real property.
(2) It is not reasonably foreseeable that the legislation will
have a similar impact on the public generally or on a significant
segment of the public.
(b) For purposes of this section and Section 87102.5, all of the
following apply:
(1) "Legislation" means a bill, resolution, or constitutional
amendment.
(2) The term "public "Public
generally" includes an industry, trade, or profession.
(3) Any recognized subgroup or specialty of the industry, trade,
or profession constitutes a significant segment of the public.
(4) A legislative district, county, city, or special district
constitutes a significant segment of the public.
(5) More than a small number of persons or pieces of real property
is a significant segment of the public.
(6) Legislation, administrative action, or other governmental
action impacts in a similar manner all members of the public, or all
members of a significant segment of the public, on which it has a
direct financial effect, whether or not the financial effect on
individual members of the public or the significant segment of the
public is the same as the impact on the other members of the public
or the significant segment of the public.
(7) The Budget Bill as a whole is not nongeneral legislation.
(8) Legislation that contains at least one provision that
constitutes nongeneral legislation is nongeneral legislation, even if
the legislation also contains other provisions that are general and
do not constitute nongeneral legislation.
SEC. 335. Section 87104 of the Government Code, as added by
Section 1 of Chapter 274 of the Statutes of 1994, is repealed.
87104. (a) No public official of a state agency shall, for
compensation, act as an agent or attorney for, or otherwise
represent, any other person by making any formal or informal
appearance before, or by making any oral or written communication to,
his or her state agency or any officer or employee thereof, if the
appearance or communication is made for the purpose of influencing
action on a contract, grant, loan, license, permit, or other
entitlement for use.
(b) For purposes of this section, a "public official" is any
person defined in Section 82048, and every member of any advisory
committee of a state agency, whether the committee is created by
statute or otherwise.
SEC. 336. Section 89513 of the Government Code is amended to read:
89513. The following provisions govern
This section governs the use of campaign funds for the specific
expenditures set forth in this section. It is the intent of the
Legislature that these provisions shall this
section guide the interpretation of the standard imposed by
Section 89512 as applied to other expenditures not specifically set
forth below in this section .
(a) (1) Campaign funds shall not be used to
pay or reimburse the candidate, the elected officer, or any
individual or individuals with authority to approve the expenditure
of campaign funds held by a committee, or employees or staff of the
committee or the elected officer's governmental agency for travel
expenses and necessary accommodations except when these expenditures
are directly related to a political, legislative, or governmental
purpose.
(1)
(2) For the purposes of this section, payments or
reimbursements for travel and necessary accommodations shall be
considered as directly related to a political, legislative, or
governmental purpose if the payments would meet standards similar to
the standards of the Internal Revenue Service pursuant to Sections
162 and 274 of the Internal Revenue Code for deductions of travel
expenses under the federal income tax law.
(2)
(3) For the purposes of this section, payments or
reimbursement for travel by the household of a candidate or elected
officer when traveling to the same destination in order to accompany
the candidate or elected officer shall be considered for the same
purpose as the candidate's or elected officer's travel.
(3)
(4) Whenever campaign funds are used to pay or
reimburse a candidate, elected officer, his or her representative, or
a member of the candidate's household for travel expenses and
necessary accommodations, the expenditure shall be reported as
required by paragraph (7) of subdivision (j) of Section 84211.
(4)
(5) Whenever campaign funds are used to pay or
reimburse for travel expenses and necessary accommodations, any
mileage credit which that is earned or
awarded pursuant to an airline bonus mileage program shall be deemed
personally earned by or awarded to the individual traveler. Neither
the earning or awarding of mileage credit, nor the redeeming of
credit for actual travel, shall be subject to reporting pursuant to
Section 84211.
(b) (1) Campaign funds shall not be used to
pay for or reimburse the cost of professional services unless the
services are directly related to a political, legislative, or
governmental purpose.
(1)
(2) Expenditures by a committee to pay for professional
services reasonably required by the committee to assist it in the
performance of its administrative functions are directly related to a
political, legislative, or governmental purpose.
(2)
(3) Campaign funds shall not be used to pay
health-related expenses for a candidate, elected officer, or any
individual or individuals with authority to approve the expenditure
of campaign funds held by a committee, or members of his or her
household. "Health-related expenses" include
includes , but are is not limited
to, expenses for examinations by physicians, dentists,
psychiatrists, psychologists, or counselors, expenses or
for medications, treatments , or
medical equipment, and expenses for hospitalization,
health club dues, and special dietary foods. However, campaign funds
may be used to pay employer costs of health care benefits of a bona
fide employee or independent contractor of the committee.
(c) Campaign funds shall not be used to pay or reimburse fines,
penalties, judgments, or settlements, except those resulting from
either of the following:
(1) Parking citations incurred in the performance of an activity
which that was directly related to a
political, legislative, or governmental purpose.
(2) Any other action for which payment of attorney's fees from
contributions would be permitted pursuant to this title.
(d) Campaign funds shall not be used for campaign, business, or
casual clothing except specialty clothing that is not suitable for
everyday use, including, but not limited to, formal wear,
where if this attire is to be worn by the
candidate or elected officer and is directly related to a political,
legislative, or governmental purpose.
(e) (1) Except where otherwise prohibited by
law, campaign funds may be used to purchase or reimburse for the
costs of purchase of tickets to political fundraising events for the
attendance of a candidate, elected officer, or his or her immediate
family, or an officer, director, employee, or staff of the committee
or the elected officer's governmental agency.
(1)
(2) Campaign funds shall not be used to pay for or
reimburse for the costs of tickets for entertainment or sporting
events for the candidate, elected officer, or members of his or her
immediate family, or an officer, director, employee, or staff of the
committee, unless their attendance at the event is directly related
to a political, legislative, or governmental purpose.
(2)
(3) The purchase of tickets for entertainment or
sporting events for the benefit of persons other than the candidate,
elected officer, or his or her immediate family are governed by
subdivision (f).
(f) (1) Campaign funds shall not be used to make personal gifts
unless the gift is directly related to a political, legislative, or
governmental purpose. The refund of a campaign contribution does not
constitute the making of a gift.
(2) Nothing in this section shall prohibit
the use of campaign funds to reimburse or otherwise compensate a
public employee for services rendered to a candidate or committee
while on vacation, leave, or otherwise outside of compensated public
time.
(2)
(3) An election victory celebration or similar campaign
event, or gifts with a total cumulative value of less than two
hundred fifty dollars ($250) in a single year made to an individual
employee, a committee worker, or an employee of the elected officer's
agency, are considered to be directly related to a political,
legislative, or governmental purpose. For purposes of this paragraph,
a gift to a member of a person's immediate family shall be deemed to
be a gift to that person.
(g) Campaign funds shall not be used to make loans other than to
organizations pursuant to Section 89515, or, unless otherwise
prohibited, to a candidate for elective office, political party, or
committee.
SEC. 337. Section 92201 of the Government Code is amended to read:
92201. (a) The commission is authorized to
acquire by deed, purchase, lease, contract, gift, devise, or
otherwise, any real or personal property, structures, rights,
rights-of-way, franchises, easements, and other interests in lands
located within this state necessary or convenient for the
construction or operation of a project, upon terms and conditions it
deems advisable, and to lease, sell, or dispose of the property or
interest therein in the manner that may be necessary or desirable to
carry out the objects and purposes of this title.
(b) Nothing in this division shall
authorizes authorize the commission to exercise
the power of eminent domain.
SEC. 338. Section 92251 of the Government Code is amended to read:
92251. (a) At times that the commission
desires to issue bonds, as defined in Section 92252, it shall adopt a
resolution specifying the total amount of bonds proposed to be
issued.
(b) The maximum aggregate principal amount
of bonds which that may be issued under
the authority of this title is one billion two hundred fifty million
dollars ($1,250,000,000) plus the amount of any indebtedness
authorized by Section 99270 92270 .
(c) The above limitation
in subdivision (b) does not apply to bonds or other
evidence of indebtedness, including bond anticipation notes and
commercial paper, issued to refund bonds, bond anticipation notes, or
commercial paper.
SEC. 339. Section 92268 of the Government Code is amended to read:
92268. Bonds issued pursuant to Section 99265
92265 are subject to this title in the same manner and to
the same extent as other bonds issued pursuant to this title.
SEC. 340. Section 92309 of the Government Code is amended to read:
92309. Notwithstanding any other provision of law:
(a) The commission and its revenues, amounts for administration
expenses, and any other income shall be exempt from all taxes on, or
measured by, income.
(b) Bonds issued by the commission shall be exempt from all
property taxation, and the interest on the bonds shall be exempt from
all taxes on income.
(c) All property owned by the commission shall be exempt from
property taxes, assessments, and other public charges secured by
liens.
(d) All interest of the participating party in the property of any
project shall, for purposes of property taxation, be subject to
Division 1 (commencing with Section 101) of the Revenue and Taxation
Code, and the interests that constitute the tax base for property
taxation is subject to assessments and charges on the same basis as
other property.
(e) "Sale" and "purchase," for the purposes of Part 1 (commencing
with Section 6001) of Division 2 of the Revenue and Taxation Code, do
not include any lease or transfer of title of tangible personal
property constituting any project of or
facility to the commission by a participating party, nor any lease
or transfer of title of tangible personal property constituting any
project or facility by the commission to a participating party, when
the transfer or lease is made pursuant to this title.
SEC. 341. Section 72.4 of the Harbors and Navigation Code is
amended to read:
72.4. Any An agreement or contract
for a transfer pursuant to former Section 5823 of the
Public Resources Code or a loan pursuant to former Section
5827 or 6499.5 of said that code,
executed prior to the effective date of this chapter, shall, for the
purposes of this chapter, be considered as an agreement or contract
executed pursuant to this chapter.
SEC. 342. Section 303 of the Harbors and Navigation Code is
amended to read:
303. Every A person who
wilfully willfully and maliciously burns,
injures, or destroys any part of, of or
the whole of any , a pile
or raft of wood, plank, boards, or other lumber, or cuts loose or
sets adrift any such the raft or part
of a the raft, which
that is the property of another, is guilty of a
misdemeanor.
SEC. 343. Section 444 of the Harbors and Navigation Code is
amended to read:
444. It shall be understood and agreed, and shall be the essence
of any an agreement under which
services of the pilot are tendered to and are accepted by owners,
agents, charterers, or operators, as follows:
(a) The vessel requesting pilotage services and its owners,
agents, charterers, and operators covenant and agree not to assert
any claims a claim against the pilot,
the pilot's employer, or other employees of the pilot's employer for
damages, including any rights over, arising out of, or connected
with, directly or indirectly, any damage, loss, or expense sustained
by the vessel, its owners, agents, charterers, operators, or crew,
and by any third parties, even through th
ough resulting in whole or in part from acts,
omissions, or negligence of the pilot, the pilot's employer, or other
employees of the pilot's employer. The vessel and its owners,
agents, charterers, and operators further covenant and agree, subject
to any limitation of liability to which they are entitled by reason
of any contract, bill of lading, statute, or other provision of law
in force, to indemnify and hold harmless the pilot, the pilot's
employer, and other employees of the pilot's employer with respect to
liability arising from any and all claims, suits, or actions, by
whomsoever asserted, resulting in whole or in part from acts,
omissions, or negligence of the pilot, the pilot's employer, or other
employees of the pilot's employer. These covenants and agreements do
not apply to such liability and rights
as that may arise from the willful misconduct or
gross negligence of the pilot, the pilot's employer, or other
employees of the pilot's employer.
(b) If any vessel on whose behalf pilotage services are requested
is not owned by the person or entity ordering the services, that
person or entity warrants its authority to bind the vessel and its
owners, charterers, and operators to all the provisions contained in
subdivision (a), and that person and entity agree to indemnify and
hold harmless , the pilot, the pilot's employer,
and other employees of the pilot's employer with respect to all
losses, damages, and expenses that may be suffered or incurred in
consequence of the person or entity not having that authority.
(c) Pilotage services are voluntarily requested ,
and are voluntarily rendered in reliance upon the terms
specified in subdivisions (a) and (b).
(d) This article does not affect the rights of third parties
against a vessel, its master, owners, agents, charterers, or
operators, or a pilot, the pilot's employer, or other employees of a
pilot's employer.
(e) This article does not preclude any pilot or pilot's employer
from entering into contracts with the owners, agents, charterers, or
operators of a vessel which that
contain additional pilotage terms and conditions.
SEC. 344. Section 504 of the Harbors and Navigation Code is
amended to read:
504. (a) For vessels with a value determined to be one thousand
five hundred dollars ($1,500) or less, the department shall promptly
furnish the lienholder with the names and addresses of the registered
and legal owners of record.
(b) The lienholder shall, immediately upon receipt of the names
and addresses, send by mail, with return receipt requested, a
completed notice of pending lien sale form, a blank declaration of
opposition form, and a return envelope preaddressed to the
department, to the registered owner and legal owner at their
addresses of record with the department, to any other person known to
have a proprietary interest in the vessel, and to the department.
(c) Upon receipt of the notice, the department shall mark its
records and thereafter notify any person having a proprietary
interest in the vessel that there is a pending lien sale and that
title will not be transferred until the lien is satisfied or
released.
(d) All notices shall be signed under penalty of perjury and shall
include all of the following information and statements:
(1) A description of the vessel, including make, identification
number, and state of registration, to the extent available.
(2) The specific date, exact time, and place of sale, which shall
be set not less then than 35 days, but
not more than 60 days, from the date of mailing.
(3) The names and addresses of the registered and legal owners of
the vessel and any other person known to have an interest in the
vessel.
(4) All of the following statements:
(A) The amount of the lien and the facts which
that give rise to the lien. The statement shall include,
as a separate item, an estimate of any additional storage costs
accruing pending the lien sale.
(B) The person has a right to a hearing in court.
(C) If a court hearing is desired, a declaration of opposition
signed under penalty of perjury is required to be signed and returned
to the department within 15 days of the date the notice of pending
lien sale was mailed.
(D) If the declaration of opposition is signed and returned, the
lienholder will be allowed to sell the vessel only if he or she
obtains a court judgment or if he or she obtains a subsequent release
from the declarant.
(E) If a court action is filed, the declarant will be served by
mail with legal process in the court proceedings at the address shown
on the declaration of opposition and may appear to contest the
claim.
(F) The person may be liable for court costs if a judgment is
entered in favor of the lienholder.
(e) If the department receives the completed declaration of
opposition within the time provided, the department shall notify the
lienholder within 16 days that a lien sale shall not be conducted
unless the lienholder files an action in court within 20 days of the
notice and judgment is subsequently entered in favor of the
lienholder or the declarant subsequently releases his or her
interest in the vessel.
(f) Service on the declarant by mail with return receipt
requested, signed by the declarant or an authorized agent of the
declarant at the address shown on the declaration of opposition,
shall be effective. Return of a declaration of opposition shall
constitute consent by the declarant to service of legal process for
the desired court hearing upon him or her in the foregoing manner. If
the lienholder has attempted service upon the declarant by that
method at the address shown on the declaration of opposition and the
mail has been returned unclaimed, the lienholder may proceed with the
sale.
SEC. 345. Section 508 of the Harbors and Navigation Code is
amended to read:
508. Any A lien provided for in
this article for repairs, labor, supplies, or materials for
, or for storage or safekeeping of , a vessel may be
assigned by written instrument accompanied by delivery of possession
of the vessel subject to the lien, and the assignee may exercise the
rights of a lienholder as provided in this article. Any
A lienholder assigning a lien as authorized in
this section shall at the time of assigning the lien give written
notice of the assignment either by personal delivery of
or by certified mail, to the registered and
legal owners of the vessel, indicating the name and address of the
person to whom the lien is assigned.
SEC. 346. Section 773.2 of the Harbors and Navigation Code is
amended to read:
773.2. As used in this article , the following definitions
shall apply :
(a) "For-hire vessel" means a for-hire vessel as defined in
Section 4661 of the Public Utilities Code, irrespective of the number
of passengers carried.
(b) "Charter boat" means a for-hire vessel operating on navigable
water of the state in the coastal zone , as defined in
Section 30103 of the Public Resources Code, whether or not the vessel
is licensed by the state. However, "charter boat" does not include
any boat operating solely within a harbor, as defined in Section 34,
or any boat licensed for point-to-point service while operating
within the scope of that license.
(c) "Operator" means a person owning, controlling, operating, or
managing a for-hire vessel.
(d) "Charterer" means a person who receives compensation for
contracting with an operator to transport three or more passengers.
(e) "Coast Guard" means the United States Coast Guard.
(f) "Life preserver" means a life preserver approved and certified
by the Coast Guard and capable of providing at least 90 percent of
factory-rated flotation capacity.
(g) "Person" means any individual, firm, partnership, for-profit
corporation, not for-profit nonprofit
corporation, limited liability company, company, association, joint
stock association, trustee, receiver, assignee, or other similar
entity or representative.
SEC. 347. Section 1176 of the Harbors and Navigation Code is
amended to read:
1176. Pilots and inland pilots shall undergo physical
examinations in accordance with standards prescribed by the board in
conjuction conjunction with the renewal
of their license. The examination shall designate that each pilot or
inland pilot is fit to peform perform
his or her duties as a pilot.
SEC. 348. Section 6037.4 of the Harbors and Navigation Code is
amended to read:
6037.4. (a) The elections officials in
charge of conducting the election shall cause a ballot pamphlet
concerning the district formation proposition to be voted on to be
printed and mailed to each voter entitled to vote on the district
formation question.
(b) The ballot pamphlet shall contain the
following in the order prescribed:
(a)
(1) The complete text of the proposition.
(b)
(2) The impartial analysis of the proposition, prepared
by the local agency formation commission.
(c)
(3) The argument for the proposed district formation.
(d)
(4) The argument against the proposed district
formation.
(c) The elections officials shall mail a
ballot pamphlet to each voter entitled to vote in the district
formation election at least 10 days prior to the date of the
election. The a ballot pamphlet is "official
matter" within the meaning of Section 13303 of the Elections Code.
SEC. 349. Section 1250.3 of the Health and Safety Code is amended
to read:
1250.3. (a) As defined in Section 1250, "health facility"
includes the following type: "Chemical dependency recovery hospital"
means a health facility which that
provides 24-hour inpatient care for persons who have a dependency on
alcohol or other drugs, or both alcohol and other drugs.
Such This care shall include, but not be limited
to, the following basic services: patient counseling, group therapy,
physical conditioning, family therapy, outpatient services, and
dietetic services. Each facility shall have a medical director who is
a physician and surgeon licensed to practice in this state.
(b) The Legislature finds and declares that problems related to
the inappropriate use of alcohol or other drugs, or both alcohol and
other drugs , are widespread and adversely affect the
general welfare of the people of the State of California. It is the
intent of the Legislature that the chemical dependency recovery
hospital will provide an innovative inpatient treatment program for
persons who have a dependency on alcohol or drugs, or both alcohol
and other drugs. The Legislature further finds and declares that
significant cost
reductions can be achieved by chemical dependency recovery hospitals
when both of the following conditions exist:
(1) Architectural requirements established by the state
department encourage a flexible and open construction
approach which that significantly
reduce reduces capital construction
costs.
(2) Programs are designed to provide comprehensive inpatient
treatment yet permit while permitting
substantial flexibility in the use of qualified personnel to meet the
specific needs of the patients of the facility.
(c) Beds classified as chemical dependency recovery beds in a
general acute care hospital or acute psychiatric hospital or a
freestanding facility which that is
owned or leased by the general acute care hospital or the acute
psychiatric hospital and which , that
is located on the same premises or adjacent premises thereof, not to
exceed a 15-mile radius within the same health facility planning
area, as defined January 1, 1981, by the Office of Statewide Health
Planning and Development , and that is under
the administrative control of the general acute care hospital or the
acute psychiatric hospital, shall be used exclusively for alcohol or
other drug dependency treatment, or both alcohol and other drug
dependency treatment. No general acute care hospital or acute
psychiatric hospital or a freestanding facility, as defined in this
subdivision, shall, without fulfilling the requirements of the
licensing laws and health planning laws, convert beds classified as
chemical dependency recovery beds to any other bed classification or
provide new chemical dependency recovery beds by increasing bed
capacity.
(d) (1) Chemical dependency recovery
services may be provided as a supplemental service in existing
general acute care beds and acute psychiatric beds in a general acute
care hospital or in existing acute psychiatric beds in an acute
psychiatric hospital or in existing beds in a freestanding facility,
as defined in subdivision (c). When providing chemical dependency
recovery services as a supplemental service, the general acute care
hospital, acute psychiatric hospital, or freestanding facility, as
defined in subdivision (c), shall provide the supplemental services
in a distinct part of the hospital or freestanding facility,
provided that if the distinct part satisfies
the criteria established by law and regulation for approval as a
chemical dependency recovery supplemental service. A
distinct part
(2) For purposes of this
subdivision, "distinct part" means an identifiable
unit of a hospital or a freestanding facility, as defined in
subdivision (c), accommodating beds, and related services, including,
but not limited to, contiguous rooms, a wing, a floor ,
or a building that is approved by the State Department of
Health Services department for a specific
purpose. Notwithstanding any other provisions of this subdivision, an
acute psychiatric hospital which that
provides all of the basic services specified in subdivison
subdivision (b) of Section 1250 may, subject to
the approval of the state department, have all of
its licensed acute psychiatric beds approved for chemical dependency
recovery services. Chemical dependency recovery services provided
under pursuant to this subdivision
shall not require a separate license or reclassification of beds
under the health planning laws.
(e) If the chemical dependency recovery hospital is not a
supplemental service of a general acute care hospital, it shall have
agreements with one or more general acute care hospitals providing
for 24-hour emergency service and pharmacy, laboratory, and
such any other services as
that the state department may require.
(f) Any reference in any statute to Section 1250 shall be deemed
and construed to also be a reference to this section.
SEC. 350. Section 1267.19 of the Health and Safety Code is amended
to read:
1267.19. Congregate living health facilities shall not be subject
to architectural plan review by the Office of Statewide Health
Planning and Development. As part of the application for licensure,
the prospective licensee shall submit evidence of compliance with
local building code requirements. In addition, the physical
environment shall be adequate to provide for the level of
care and service required by the residents of the facility ,
as detemined determined by the
department.
SEC. 351. Section 1276.8 of the Health and Safety Code is amended
to read:
1276.8. Notwithstanding any other provision of law, including,
but not limited to, Section 1276, the following shall apply:
(a) As used in this code, "respiratory care practitioner,"
"respiratory therapist," "respiratory therapy technician," and
"inhalation therapist" mean a respiratory care practitioner certified
under the Respiratory Care Practice Act (Chapter 8.3 (commencing
with Section 3700) of Division 2 of the Business and Professions
Code).
(b) The definition of respiratory care services, respiratory
therapy, inhalation therapy, or the scope of practice of respiratory
care, shall be as described in Section 3702 of the Business and
Professions Code.
(c) Respiratory care may be performed in hospitals, ambulatory or
in-home care, and other settings where respiratory care is performed
under the supervision of a medical director in accordance with the
prescription of a physician and surgeon. Respiratory care may also be
provided during the transportation of a patient, and under any
circumstances where an emergency necessitates respiratory care.
(d) In addition to other licensed health care practitioners
authorized to administer respiratory care, a certified
respiratory care practioners practitioner
may accept, transcribe, and implement the written and verbal
orders of a physician and surgeon pertaining to the practice of
respiratory care.
SEC. 352. Section 1312 of the Health and Safety Code is amended to
read:
1312. Before a person who is required to register as a sex
offender under Section 290 of the Penal Code is released into a
long-term health care facility, as defined in Section 1418, the
Department of Corrections and Rehabilitation, the State Department of
Mental Health, any or any other
official in charge of the place of confinement, shall notify the
facility, in writing, that the sex offender is being released to
reside at the facility.
SEC. 353. Section 1357.09 of the Health and Safety Code is amended
to read:
1357.09. No plan shall be required to offer a health care service
plan contract or accept applications for such a
the contract pursuant to this article in the case of any
of the following:
(a) To a small employer, where if
the small employer is not physically located in a plan's approved
service areas, or where if an eligible
employee and dependents who are to be covered by the plan contract do
not work or reside within a plan's approved service areas.
(b) (1) Within a specific service area or
portion of a service area where , if a
plan reasonably anticipates and demonstrates to the satisfaction of
the director that it will not have sufficient health care delivery
resources to assure that health care services will be available and
accessible to the eligible employee and dependents of the employee
because of its obligations to existing enrollees.
(1)
(2) A plan that cannot offer a health care service plan
contract to small employers because it is lacking in sufficient
health care delivery resources within a service area or a portion of
a service area may not offer a contract in the area in which the plan
is not offering coverage to small employers to new employer groups
with more than 50 eligible employees until the plan notifies the
director that it has the ability to deliver services to small
employer groups, and certifies to the director that from the date of
the notice it will enroll all small employer groups requesting
coverage in that area from the plan unless the plan has met the
requirements of subdivision (d).
(2)
(3) Nothing in this article shall be construed to limit
the director's authority to develop and implement a plan of
rehabilitation for a health care service plan whose financial
viability or organizational and administrative capacity have
has become impaired.
(c) Offer coverage to a small employer or an eligible employee as
defined under paragraph (2) of subdivision (b) of Section 1357
which that , within 12 months of
application for coverage, disenrolled from a plan contract offered by
the plan.
(d) (1) The director approves the plan's
certification that the number of eligible employees and dependents
enrolled under contracts issued during the current calendar year
equals or exceeds (1) in either of the
following:
(A) In the case of a plan that
administers any self-funded health coverage arrangements in
California, 10 percent of the total enrollment of the plan in
California as of December 31 of the preceding year , or (2)
in .
(B) In the case of a plan that
does not administer any self-funded health coverage arrangements in
California, 8 percent of the total enrollment of the plan in
California as of December 31 of the preceding year. If that
certification is approved, the plan shall not offer any health care
service plan contract to any small employers during the remainder of
the current year.
(1)
(2) If a health care service plan treats an affiliate
or subsidiary as a separate carrier for the purpose of this article
because one health care service plan is qualified under the federal
Health Maintenance Organization Act (42 U.S.C. Sec. 300e et
seq.) and does not offer coverage to small employers, while the
affiliate or subsidiary offers a plan contract that is not qualified
under the federal Health Maintenance Organization Act (42
U.S.C. Sec. 300e et seq.) and offers plan contracts to small
employers, the health care service plan offering coverage to small
employers shall enroll new eligible employees and dependents, equal
to the applicable percentage of the total enrollment of both the
health care service plan qualified under the federal Health
Maintenance Organization Act (42 U.S.C. Sec. 300e et seq.)
and its affiliate or subsidiary.
(2)
(3) (A) The certified
statement filed pursuant to this subdivision shall state the
following:
(A)
(i) Whether the plan administers any self-funded health
coverage arrangements in California.
(B)
(ii) The plan's total enrollment as of December 31 of
the preceding year.
(C)
(iii) The number of eligible employees and dependents
enrolled under contracts issued to small employer groups during the
current calendar year.
(B) The director shall, within 45 days,
approve or disapprove the certified statement. If the certified
statement is disapproved, the plan shall continue to issue coverage
as required by Section 1357.03 and be subject to disciplinary action
as set forth in Article 7 (commencing with Section 1386).
(e) A health care service plan that, as of December 31 of the
prior year, had a total enrollment of fewer than 100,000 and 50
percent or more of the plan's total enrollment have premiums paid by
the Medi-Cal program.
(f) A social health maintenance organization, as described in
subdivision (a) of Section 2355 of the federal Deficit Reduction Act
of 1984 (Public Law 97-369) (P.L. 98-369)
, that, as of December 31 of the prior year, had a total
enrollment of fewer than 100,000 and has 50 percent or more of the
organization's total enrollment premiums paid by the Medi-Cal program
or Medicare programs, or by a combination of Medi-Cal and Medicare.
In no event shall this exemption be based upon enrollment in Medicare
supplement contracts, as described in Article 3.5 (commencing with
Section 1358).
SEC. 354. Section 1399.811 of the Health and Safety Code is
amended to read:
1399.811. Premiums for contracts offered, delivered, amended, or
renewed by plans on or after January 1, 2001, shall be subject to the
following requirements:
(a) The premium for new business for a federally eligible defined
individual shall not exceed the following amounts:
(1) For health care service plan contracts identified in
subdivision (d) of Section 1366.35 that offer services through a
preferred provider arrangement, the average premium paid by a
subscriber of the Major Risk Medical Insurance Program who is of the
same age and resides in the same geographic area as the federally
eligible defined individual. However, for federally qualified
individuals who are between the ages of 60 to 64 years ,
inclusive, the premium shall not exceed the average premium paid by a
subscriber of the Major Risk Medical Insurance Program who is 59
years of age and resides in the same geographic area as the federally
eligible defined individual.
(2) For health care service plan contracts identified in
subdivision (d) of Section 1366.35 that do not offer services through
a preferred provider arrangement, 170 percent of the standard
premium charged to an individual who is of the same age and resides
in the same geographic area as the federally eligible defined
individual. However, for federally qualified individuals who are
between the ages of 60 to 64 years , inclusive, the
premium shall not exceed 170 percent of the standard premium charged
to an individual who is 59 years of age and resides in the same
geographic area as the federally eligible defined individual.
(b) The premium for in force business for a federally eligible
defined individual shall not exceed the following amounts:
(1) For health care service plan contracts identified in
subdivision (d) of Section 1366.35 that offer services through a
preferred provider arrangement, the average premium paid by a
subscriber of the Major Risk Medical Insurance Program who is of the
same age and resides in the same geographic area as the federally
eligible defined individual. However, for federally qualified
individuals who are between the ages of 60 and 64 years ,
inclusive, the premium shall not exceed the average premium paid by a
subscriber of the Major Risk Medical Insurance Program who is 59
years of age and resides in the same geographic area as the federally
eligible defined individual.
(2) For health care service plan contracts identified in
subdivision (d) of Section 1366.35 that do not offer services through
a preferred provider arrangement, 170 percent of the standard
premium charged to an individual who is of the same age and resides
in the same geographic area as the federally eligible defined
individual. However, for federally qualified individuals who are
between the ages of 60 and 64 years , inclusive, the
premium shall not exceed 170 percent of the standard premium charged
to an individual who is 59 years of age and resides in the same
geographic area as the federally eligible defined individual. The
premium effective on January 1, 2001, shall apply to in force
business at the earlier of either the time of renewal or July 1,
2001.
(c) The premium applied to a federally eligible defined individual
may not increase by more than the following amounts:
(1) For health care service plan contracts identified in
subdivision (d) of Section 1366.35 that offer services through a
preferred provider arrangement, the average increase in the premiums
charged to a subscriber of the Major Risk Medical Insurance Program
who is of the same age and resides in the same geographic area as the
federally eligible defined individual.
(2) For health care service plan contracts identified in
subdivision (d) of Section 1366.35 that do not offer services through
a preferred provider arrangement, the increase in premiums charged
to a nonfederally qualified individual who is of the same age and
resides in the same geographic area as the federally defined eligible
individual. The premium for an eligible individual may not be
modified more frequently than every 12 months.
(2)
(3) For a contract that a plan has discontinued
offering, the premium applied to the first rating period of the new
contract that the federally eligible defined individual elects to
purchase shall be no greater than the premium applied in the prior
rating period to the discontinued contract.
SEC. 355. Section 1418.8 of the Health and Safety Code is amended
to read:
1418.8. (a) If the attending physician and surgeon of a resident
in a skilled nursing facility or intermediate care facility
prescribes or orders a medical intervention that requires that
informed consent be obtained prior to administration of the
medical intervention, but is unable to obtain informed consent
because the physician and surgeon determines that the resident lacks
capacity to make decisions concerning his or her health care and that
there is no person with legal authority to make those decisions on
behalf of the resident, the physician and surgeon shall inform the
skilled nursing facility or intermediate care facility.
(b) For purposes of subdivision (a), a resident lacks capacity to
make a decision regarding his or her health care if the resident is
unable to understand the nature and consequences of the proposed
medical intervention, including its risks and benefits, or is unable
to express a preference regarding the intervention. To make the
determination regarding capacity, the physician shall interview the
patient, review the patient's medical records, and consult with
skilled nursing or intermediate care facility staff, as appropriate,
and family members and friends of the resident, if any have been
identified.
(c) For purposes of subdivision (a), a person with legal authority
to make medical treatment decisions on behalf of a patient is a
person designated under a valid Durable Power of Attorney for Health
Care, a guardian, a conservator, or next of kin. To determine the
existence of a person with legal authority, the physician shall
interview the patient, review the medical records of the patient
, and consult with skilled nursing or intermediate care
facility staff, as appropriate, and with family members
and friends of the resident, if any have been identified.
(d) The attending physician and the skilled nursing facility or
intermediate care facility may initiate a medical intervention that
requires informed consent pursuant to subdivision (e) in accordance
with acceptable standards of practice.
(e) Where a resident of a skilled nursing facility or intermediate
care facility has been prescribed a medical intervention by a
physician and surgeon that requires informed consent and the
physician has determined that the resident lacks capacity to make
health care decisions and there is no person with legal authority to
make those decisions on behalf of the resident, the facility shall,
except as provided in subdivision (h), conduct an interdisciplinary
team review of the prescribed medical intervention prior to the
administration of the medical intervention. The interdisciplinary
team shall oversee the care of the resident utilizing a team approach
to assessment and care planning , and shall include the
resident's attending physician, a registered professional nurse with
responsibility for the resident, other appropriate staff in
disciplines as determined by the resident's needs, and, where
practicable, a patient representative, in accordance with applicable
federal and state requirements. The review shall include all of the
following:
(1) A review of the physician's assessment of the resident's
condition.
(2) The reason for the proposed use of the medical intervention.
(3) A discussion of the desires of the patient, where known. To
determine the desires of the resident, the interdisciplinary team
shall interview the patient, review the patient's medical records
, and consult with family members or friends, if any have
been identified.
(4) The type of medical intervention to be used in the resident's
care, including its probable frequency and duration.
(5) The probable impact on the resident's condition, with and
without the use of the medical intervention.
(6) Reasonable alternative medical interventions considered or
utilized and reasons for their discontinuance or inappropriateness.
(f) A patient representative may include a family member or friend
of the resident who is unable to take full responsibility for the
health care decisions of the resident, but who has agreed
to serve on the interdisciplinary team, or other person authorized by
state or federal law.
(g) The interdisciplinary team shall periodically evaluate the use
of the prescribed medical intervention at least quarterly or upon a
significant change in the resident's medical condition.
(h) In case of an emergency, after obtaining a physician and
surgeon's order as necessary, a skilled nursing or intermediate care
facility may administer a medical intervention which
that requires informed consent prior to the
facility convening an interdisciplinary team review. If the emergency
results in the application of physical or chemical restraints, the
interdisciplinary team shall meet within one week of the emergency
for an evaluation of the medical intervention.
(i) Physician Physicians and
surgeons and skilled nursing facilities and intermediate care
facilities shall not be required to obtain a court order pursuant to
Section 3201 of the Probate Code prior to administering a medical
intervention which requires informed consent if the requirements of
this section are met.
(j) Nothing in this section shall in any way affect the right of a
resident of a skilled nursing facility or intermediate care facility
for whom medical intervention has been prescribed, ordered, or
administered pursuant to this section to seek appropriate judicial
relief to review the decision to provide the medical intervention.
(k) No physician or other health care provider, whose action under
this section is in accordance with reasonable medical standards, is
subject to administrative sanction if the physician or health care
provider believes in good faith that the action is consistent with
this section and the desires of the resident, or if unknown, the best
interests of the resident.
(l) The determinations required to be made pursuant to
subdivisions (a), (e), and (g), and the basis for those
determinations shall be documented in the patient's medical record
and shall be made available to the patient's representative for
review.
SEC. 356. Section 1451 of the Health and Safety Code is amended to
read:
1451. (a) The Except as otherwise
provided in this section, the board shall not let the care,
maintenance , or attendance of the indigent sick or
dependent poor by contract to any person. However, in cases:
(1) Of unusual difficulty, or
(2) Which require treatment, or hospital services, or the
use of facilities not immediately available in the county hospital,
or (3) Of emergency and for continued treatment
after the emergency has ceased to exist, the
(b) The board may secure for the
indigent sick, and other persons admissible to the county hospital,
at an agreed rate, hospital service , or any portion
thereof , from any public or private hospital, clinic,
rest home, sanitarium, or other suitable facility , or
from any corporation formed under Section 9201 of the Corporations
Code or under Chapter 11A (commencing with Section 11491) of Part 2
, of Division 2 , of
the Insurance Code , and operating that
operates in the state . , in the
following cases:
(1) Cases of unusual difficulty.
(2) Cases that require treatment, or hospital services, or the use
of facilities not immediately available in the county hospital.
(3) Cases requiring emergency care or continued treatment after
the emergency has ceased to exist.
(b)
(c) As used in this section, "hospital service"
includes medical, surgical, radiological, laboratory, nursing
service, convalescent care, and the furnishing of the necessary
professional personnel, equipment, and facilities to manage the needs
of patients on a continuing basis in accordance with accepted
medical standards, with a staff of professional nursing personnel who
are assigned and available under a clear and definite responsibility
to the institution rendering the service for the provision of
services to the patients, and such any
other care, service , or supplies as
that may be necessary for the treatment of the sick or
injured.
(c)
(d) The county may also contract with licensed boarding
homes for 24-hour care for dependent children under the age of 18
years , when suitable facilities are not otherwise
available in any institution or establishment maintained and
operated by the county.
(d)
(e) The county may also contract for medical treatment
of persons admissible to the county hospital with any licensed
physician and surgeon, or a corporation operating under Section 9201
of the Corporations Code.
(e)
(f) The county may also contract for health care
services when the board determines that the hospital services or any
portion thereof rendered by the county hospital should be coordinated
with those provided by any other source.
SEC. 357. Section 1531.1 of the Health and Safety Code is amended
to read:
1531.1. (a) A residential facility licensed as an adult
residential facility, group home, small family home, foster family
home, or a family home certified by a foster family agency may
install and utilize delayed egress devices of the time delay type.
(b) As used in this section, "delayed egress device" means a
device that precludes the use of exits for a predetermined period of
time. These devices shall not delay any resident's departure from the
facility for longer than 30 seconds.
(c) Within the 30 seconds of delay, facility staff may attempt to
redirect a resident who attempts to leave the facility.
(d) Any person accepted by a residential facility or family home
certified by a foster family agency utilizing delayed egress devices
shall meet all of the following conditions:
(1) The person shall have a developmental disability as defined in
Section 4512 of the Welfare and Institutions Code.
(2) The person shall be receiving services and case management from
a regional center under the Lanterman Developmental Disabilities
Services Act (Division 4.5 (commencing with Section 4500) of the
Welfare and Institutions Code Code) .
(3) An interdisciplinary team, through the Individual Program Plan
(IPP) process pursuant to Section 4646.5 of the Welfare and
Institutions Code, shall have determined that the person lacks hazard
awareness or impulse control and requires the level of supervision
afforded by a facility equipped with delayed egress devices, and that
but for this placement, the person would be at risk of admission to,
or would have no option but to remain in, a more restrictive state
hospital or state developmental center placement.
(e) The facility shall be subject to all fire and building codes,
regulations, and standards applicable to residential care facilities
for the elderly utilizing delayed egress devices, and shall receive
approval by the county or city fire department, the local fire
prevention district, or the State Fire Marshal for the installed
delayed egress devices.
(f) The facility shall provide staff training regarding the use
and operation of the egress control devices utilized by the facility,
protection of residents' personal rights, lack of hazard awareness
and impulse control behavior, and emergency evacuation procedures.
(g) The facility shall develop a plan of operation approved by the
State Department of Social Services that includes a description of
how the facility is to be equipped with egress control devices that
are consistent with regulations adopted by the State Fire Marshal
pursuant to Section 13143 of the Health and Safety Code
.
(h) The plan shall include, but shall not be limited to, all of
the following:
(1) A description of how the facility will provide training for
staff regarding the use and operation of the egress control devices
utilized by the facility.
(2) A description of how the facility will ensure the protection
of the residents' personal rights consistent with Sections 4502,
4503, and 4504 of the Welfare and Institutions Code.
(3) A description of how the facility will manage the person's
lack of hazard awareness and impulse control behavior.
(4) A description of the facility's emergency evacuation
procedures.
(i) Delayed egress devices shall not substitute for adequate
staff. The capacity of the facility shall not exceed six residents.
(j) Emergency fire and earthquake drills shall be conducted at
least once every three months on each shift, and shall include all
facility staff providing resident care and supervision on each shift.
SEC. 358. Section 1558 of the Health and Safety Code is amended to
read:
1558. (a) The department may prohibit any person from being a
member of the board of directors, an executive director, or an
officer of a licensee, or a licensee from employing, or continuing
the employment of, or allowing in a licensed facility, or allowing
contact with clients of a licensed facility by, any employee,
prospective employee, or person who is not a client who has:
(1) Violated, or aided or permitted the violation by any other
person of, any provisions of this chapter or of any rules or
regulations promulgated under this chapter.
(2) Engaged in conduct which that is
inimical to the health, morals, welfare, or safety of either an
individual in or receiving services from the facility, or the people
of the State of California.
(3) Been denied an exemption to work or to be present in a
facility, when that person has been convicted of a crime as defined
in Section 1522.
(4) Engaged in any other conduct which
that would constitute a basis for disciplining a licensee.
(5) Engaged in acts of financial malfeasance concerning the
operation of a facility, including, but not limited to, improper use
or embezzlement of client moneys and property or fraudulent
appropriation for personal gain of facility moneys and property, or
willful or negligent failure to provide services.
(b) The excluded person, the facility, and the licensee shall be
given written notice of the basis of the department's action and of
the excluded person's right to an appeal. The notice shall be served
either by personal service or by registered mail. Within 15 days
after the department serves the notice, the excluded person may file
with the department a written appeal of the exclusion order. If the
excluded person fails to file a written appeal within the prescribed
time, the department's action shall be final.
(c) (1) The department may require the immediate removal of a
member of the board of directors, an executive director, or an
officer of a licensee or exclusion of an employee, prospective
employee, or person who is not a client from a facility pending a
final decision of the matter, when, in the opinion of the director,
the action is necessary to protect residents or clients from physical
or mental abuse, abandonment, or any other substantial threat to
their health or safety.
(2) If the department requires the immediate removal of a member
of the board of directors, an executive director, or an officer of a
licensee or exclusion of an employee, prospective employee, or person
who is not a client from a facility, the department shall serve an
order of immediate exclusion upon the excluded person which
that shall notify the excluded person of the
basis of the department's action and of the excluded person's right
to a hearing.
(3) Within 15 days after the department serves an order of
immediate exclusion, the excluded person may file a written appeal of
the exclusion with the department. The department's action shall be
final if the excluded person does not appeal the exclusion within the
prescribed time. The department shall do the following upon receipt
of a written appeal:
(A) Within 30 days of receipt of the appeal, serve an accusation
upon the excluded person.
(B) Within 60 days of receipt of a notice of defense pursuant to
Section 11506 of the Government Code by the excluded person to
conduct a hearing on the accusation.
(4) An order of immediate exclusion of the excluded person from
the facility shall remain in effect until the hearing is completed
and the director has made a final determination on the merits.
However, the order of immediate exclusion shall be deemed vacated if
the director fails to make a final determination on the merits within
60 days after the original hearing has been completed.
(d) An excluded person who files a written appeal with the
department pursuant to this section shall, as part of the written
request, provide his or her current mailing address. The excluded
person shall subsequently notify the department in writing of any
change in mailing address, until the hearing process has been
completed or terminated.
(e) Hearings held pursuant to this section shall be conducted in
accordance with Chapter 5 (commencing with Section 11500) of Division
3 of Title 2 of the Government Code. The standard of proof shall be
the preponderance of the evidence and the burden of proof shall be on
the department.
(f) The department may institute or continue a disciplinary
proceeding against a member of the board of directors, an executive
director, or an officer of a licensee or an employee, prospective
employee, or person who is not a client upon any ground provided by
this section , or . The department may
enter an order prohibiting any person from being a member of the
board of directors, an executive director, or an officer of a
licensee or prohibiting the excluded person's employment
or presence in the facility , or otherwise take
disciplinary action against the excluded person, notwithstanding any
resignation, withdrawal of employment application, or change of
duties by the excluded person, or any discharge, failure to hire, or
reassignment of the excluded person by the licensee or that the
excluded person no longer has contact with clients at the facility.
(g) A licensee's failure to comply with the department's exclusion
order after being notified of the order shall be grounds for
disciplining the licensee pursuant to Section 1550.
(h) (1) (A) In cases where the excluded person appealed the
exclusion order, the person shall be prohibited from working in any
facility or being licensed to operate any facility licensed by the
department or from being a certified foster parent for the remainder
of the excluded person's life, unless otherwise ordered by the
department.
(B) The excluded individual may petition for reinstatement one
year after the effective date of the decision and order of the
department upholding the exclusion order pursuant to Section 11522 of
the Government Code. The department shall provide the excluded
person with a copy of Section 11522 of the Government Code with the
decision and order.
(2) (A) In cases where the department informed the excluded
person of his or her right to appeal the exclusion order and the
excluded person did not appeal the exclusion order, the person shall
be prohibited from working in any facility or being licensed to
operate any facility licensed by the department or a certified foster
parent for the remainder of the excluded person's life, unless
otherwise ordered by the department.
(B) The excluded individual may petition for reinstatement after
one year has elapsed from the date of the notification of the
exclusion order pursuant to Section 11522 of the Government Code. The
department shall provide the excluded person with a copy of Section
11522 of the Government Code with the exclusion order.
SEC. 359. Section 1568.09 of the Health and Safety Code is amended
to read:
1568.09. It is the intent of the Legislature in enacting this
section to require the fingerprints of those individuals whose
contact with residents of residential care facilities for persons
with a chronic, life-threatening illness may pose a risk to the
residents' health and safety.
Therefore, the Legislature supports the use of the fingerprint
live-scan technology, as identified in the long-range plan of the
Department of Justice for fully automating the processing of
fingerprints and other data by the year 1999, otherwise known as the
California Crime Information Intelligence System (CAL-CII), to be
used for applicant fingerprints. It is the intent of the Legislature,
in enacting this section, to require the fingerprints of those
individuals whose contact with community care clients may pose a risk
to the clients' health and safety.
(a) (1) Before issuing a license to any person or persons to
operate or manage a residential care facility, the department shall
secure from an appropriate law enforcement agency a criminal record
to determine whether the applicant or any other person specified in
subdivision (b) has ever been convicted of a crime other than a minor
traffic violation or arrested for any crime specified in Section 290
of the Penal Code, for violating Section 245 or 273.5, subdivision
(b) of Section 273a or, prior to January 1, 1994, paragraph (2) of
Section 273a of the Penal Code, or for any crime for which the
department cannot grant an exemption if the person was convicted and
the person has not been exonerated.
(2) The criminal history information shall include the full
criminal record , if any, of those persons, and subsequent
arrest information pursuant to Section 11105.2 of the Penal Code.
(3) The following shall apply to the criminal record information:
(A) If the State Department of Social Services finds that the
applicant or any other person specified in subdivision (b) has been
convicted of a crime, other than a minor traffic violation, the
application shall be denied, unless the director grants an exemption
pursuant to subdivision (f).
(B) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b) is
awaiting trial for a crime other than a minor traffic violation, the
State Department of Social Services may cease processing the
application until the conclusion of the trial.
(C) If no criminal record information has been recorded, the
Department of Justice shall provide the applicant and the State
Department of Social Services with a statement of that fact.
(D) If the State Department of Social Services finds after
licensure that the licensee, or any other person specified in
paragraph (2) of subdivision (b), has been convicted of a crime other
than a minor traffic violation, the license may be revoked, unless
the director grants an exemption pursuant to subdivision (f).
(E) An applicant and any other person specified in subdivision (b)
shall submit to the Department of Justice a second set of
fingerprints for the purpose of searching the records of the Federal
Bureau of Investigation, in addition to the search required by this
subdivision. If an applicant meets all other conditions for
licensure, except receipt of the Federal Bureau of Investigation's
criminal history information for the applicant and persons listed in
subdivision (b), the department may issue a license if the applicant
and each person described by subdivision (b) has signed and submitted
a statement that he or she has never been convicted of a crime in
the United States, other than a traffic infraction as defined in
paragraph (1) of subdivision (a) of Section 42001 of the Vehicle
Code. If, after licensure, the department determines that the
licensee or person specified in subdivision (b) has a criminal
record, the license may be revoked pursuant to subdivision (a) of
Section 1568.082. The department may also suspend the license pending
an administrative hearing pursuant to subdivision (b) of
Section1568.082 Section 1568.082 .
(b) In addition to the applicant, the provisions of
this section shall be applicable to criminal convictions of
the following persons:
(1) Adults responsible for administration or direct supervision of
staff of the facility.
(2) Any person, other than a resident, residing in the facility.
(3) Any person who provides resident assistance in dressing,
grooming, bathing, or personal hygiene. Any nurse assistant or home
health aide meeting the requirements of Section 1338.5 or 1736.6,
respectively, who is not employed, retained, or contracted by the
licensee, and who has been certified or recertified on or after July
1, 1998, shall be deemed to meet the criminal record clearance
requirements of this section. A certified nurse assistant and
certified home health aide who will be providing client assistance
and who falls under this exemption shall provide one copy of his or
her current certification, prior to providing care, to the
residential care facility for persons with chronic, life-threatening
illness. The facility shall maintain the copy of the certification on
file as long as care is being provided by the certified nurse
assistant or certified home health aide at the facility. Nothing in
this paragraph restricts the right of the department to exclude a
certified nurse assistant or certified home health aide from a
licensed residential care facility for persons with chronic,
life-threatening illness pursuant to Section 1568.092.
(4) (A) Any staff person, volunteer, or employee who has contact
with the residents.
(B) A volunteer shall be exempt from the requirements of
this subdivision if he or she is a relative, significant
other, or close friend of a client receiving care in the facility and
the volunteer does not provide direct care and supervision of
residents. A volunteer who provides direct care and supervision shall
be exempt if the volunteer is a resident's spouse, significant
other, close friend, or family member and provides direct care and
supervision to that resident only at the request of the resident. The
department may define in regulations persons similar to those
described in this subparagraph who may be exempt from the
requirements of this subdivision.
(5) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer or other person serving in
that capacity.
(6) Additional officers of the governing body of the applicant, or
other persons with a financial interest in the applicant, as
determined necessary by the department by regulation. The criteria
used in the development of these regulations shall be based on the
person's capability to exercise substantial influence over the
operation of the facility.
(c) (1) (A) Subsequent to initial licensure, any person specified
in subdivision (b) and not exempted from fingerprinting shall, as a
condition to employment, residence, or presence in a residential care
facility, be fingerprinted and sign a declaration under penalty of
perjury regarding any prior criminal convictions. The licensee shall
submit these fingerprints to the Department of Justice, along with a
second set of fingerprints, for the purpose of searching the records
of the Federal Bureau of Investigation, or to comply with paragraph
(1) of subdivision (g), prior to the person's employment, residence,
or initial presence in the residential care facility.
(B) These fingerprints shall be on a card provided by the State
Department of Social Services for the purpose of obtaining a
permanent set of fingerprints and submitted to the Department of
Justice by the licensee or sent by electronic transmission in a
manner approved by the State Department of Social Services. A
licensee's failure to submit fingerprints to the Department of
Justice, or to comply with paragraph (1) of subdivision (g), as
required in this section, shall result in the citation of a
deficiency and an immediate assessment of civil penalties in the
amount of one hundred dollars ($100) per violation, per day for a
maximum of five days, unless the violation is a second or subsequent
violation within a 12-month period in which case the civil penalties
shall be in the amount of one hundred dollars ($100) per violation
for a maximum of 30 days, and shall be grounds for disciplining the
licensee pursuant to Section 1568.082. The State Department of Social
Services may assess civil penalties for continued violations as
allowed in Section 1568.0822. The fingerprints shall then be
submitted to the State Department of Social Services for processing.
The licensee shall maintain and make available for inspection
documentation of the individual's clearance or exemption.
(2) A violation of the regulations adopted pursuant to Section
1522.04 shall result in the citation of a deficiency and an immediate
assessment of civil penalties in the amount of one hundred dollars
($100) per violation per day for a maximum of five days, unless the
violation is a second or subsequent violation within a 12-month
period in which case the civil penalties shall be in the amount of
one hundred dollars ($100) per violation for a maximum of 30 days,
and shall be grounds for disciplining the licensee pursuant to
Section 1568.082. The department may assess civil penalties for
continued violations as permitted by Section 1568.0822.
(3) Within 14 calendar days of the receipt of the fingerprints,
the Department of Justice shall notify the State Department of Social
Services of the criminal record information, as provided for in this
subdivision. If no criminal record information has been recorded,
the Department of Justice shall provide the licensee and the State
Department of Social Services with a statement of that fact within 14
calendar days of receipt of the fingerprints. If new fingerprints
are required for processing, the Department of Justice shall, within
14 calendar days from the date of receipt of the fingerprints, notify
the licensee that the fingerprints were illegible. When live-scan
technology is operational, as defined in Section 1522.04, the
Department of Justice shall notify the department, as required by
that section, and shall notify the licensee by mail within 14 days of
electronic transmission of the fingerprints to the Department of
Justice, if the person has no criminal history record.
(4) Except for persons specified in paragraph (2) of subdivision
(b), the licensee shall endeavor to ascertain the previous employment
history of persons required to be fingerprinted under this
subdivision. If it is determined by the State Department of Social
Services, on the basis of the fingerprints submitted to the
Department of Justice, that the person has been convicted of a sex
offense against a minor, an offense specified in Section 243.4, 273a,
273d, 273g, or 368 of the Penal Code, or a felony, the department
shall notify the licensee to act immediately to terminate the person'
s employment, remove the person from the residential care facility,
or bar the person from entering the residential care facility. The
department may subsequently grant an exemption pursuant to
subdivision (f). If the conviction was for another crime, except a
minor traffic violation, the licensee shall, upon notification by the
department, act immediately to either (1) terminate the person's
employment, remove the person from the residential care facility, or
bar the person from entering the residential care facility ;
or (2) seek an exemption pursuant to subdivision (f). The
department shall determine if the person shall be allowed to remain
in the facility until a decision on the exemption is rendered. A
licensee's failure to comply with the department's prohibition of
employment, contact with clients, or presence in the facility as
required by this paragraph shall result in a citation of deficiency
and an immediate assessment of civil penalties by the department
against the licensee, in the amount of one hundred dollars ($100) per
violation, per day for a maximum of five days, unless the violation
is a second or subsequent violation within a 12-month period in which
case the civil penalties shall be in the amount of one hundred
dollars ($100) per violation for a maximum of 30 days, and shall be
grounds for disciplining the licensee pursuant to Section 1568.082.
(5) The department may issue an exemption on its own motion
pursuant to subdivision (f) if the person's criminal history
indicates that the person is of good character based on the age,
seriousness, and frequency of the conviction or convictions. The
department, in consultation with interested parties, shall develop
regulations to establish the criteria to grant an exemption pursuant
to this paragraph.
(6) Concurrently with notifying the licensee pursuant to paragraph
(4), the department shall notify the affected individual of his or
her right to seek an exemption pursuant to subdivision (f). The
individual may seek an exemption only if the licensee terminates the
person's employment or removes the person from the facility after
receiving notice from the department pursuant to paragraph (4).
(d) (1) For purposes of this section or any other provision of
this chapter, a conviction means a plea or verdict of guilty or a
conviction following a plea of nolo contendere. Any action that the
department is permitted to take following the establishment of a
conviction may be taken when the time for appeal has elapsed, when
the judgment of conviction has been affirmed on appeal, or when an
order granting probation is made suspending the imposition of the
sentence, notwithstanding a subsequent order pursuant to Sections
1203.4 and 1203.4a of the Penal Code permitting that 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,
information, or indictment. For purposes of this chapter, the record
of a conviction, or a copy thereof certified by the clerk of the
court or by a judge of the court in which the conviction occurred,
shall be conclusive evidence of the conviction. For purposes of this
section or any other provision of this chapter, the arrest
disposition report certified by the Department of Justice, or
documents admissible in a criminal action pursuant to Section 969b of
the Penal Code, shall be prima facie evidence of the conviction,
notwithstanding any other provision of law prohibiting the admission
of these documents in a civil or administrative action.
(2) For purposes of this section or any other provision of this
chapter, the department shall consider criminal convictions from
another state or federal court as if the criminal offense was
committed in this state.
(e) The State Department of Social Services may not use a record
of arrest to deny, revoke, or terminate any application, license,
employment, or residence unless the department investigates the
incident and secures evidence, whether or not related to the incident
of arrest, that is admissible in an administrative hearing to
establish conduct by the person that may pose a risk to the health
and safety of any person who is or may become a client. The State
Department of Social Services is authorized to obtain any arrest or
conviction records or reports from any law enforcement agency as
necessary to the performance of its duties to inspect, license, and
investigate community care facilities and individuals associated with
a community care facility.
(f) (1) After review of the record, the director may grant an
exemption from disqualification for a license as specified in
paragraphs (1) and (4) of subdivision (a), or for employment,
residence, or presence in a residential care facility as specified in
paragraphs (4), (5), and (6) of subdivision (c) if the director has
substantial and convincing evidence to support a reasonable belief
that the applicant and the person convicted of the crime, if other
than the applicant, are of such good character as to justify issuance
of the license or special permit or granting an exemption for
purposes of subdivision (c). However, an exemption may not be granted
pursuant to this subdivision if the conviction was for any of the
following offenses:
(A) An offense specified in Section 220, 243.4, or 264.1,
subdivision (a) of Section 273a or, prior to January 1, 1994,
paragraph (1) of Section 273a, Section 273d, 288, or 289, subdivision
(a) of Section 290, or Section 368 of the Penal Code, or was a
conviction of another crime against an individual specified in
subdivision (c) of Section 667.5 of the Penal Code.
(B) A felony offense specified in Section 729 of the Business and
Professional Professions Code or
Section 206 or 215, subdivision (a) of Section 347, subdivision (b)
of Section 417, or subdivision (a) of Section 451 of the Penal Code.
(2) The
department may not prohibit a person from being employed or having
contact with clients in a facility on the basis of a denied criminal
record exemption request or arrest information unless the department
complies with the requirements of Section 1568.092.
(g) (1) For purposes of compliance with this section, the
department may permit an individual to transfer a current criminal
record clearance, as defined in subdivision (a), from one facility to
another, as long as the criminal record clearance has been processed
through a state licensing district office, and is being transferred
to another facility licensed by a state licensing district office.
The request shall be in writing to the department, and shall include
a copy of the person's driver's license or valid identification card
issued by the Department of Motor Vehicles, or a valid photo
identification issued by another state or the United States
government if the person is not a California resident. Upon request
of the licensee, who shall enclose a self-addressed stamped envelope
for this purpose, the department shall verify whether the individual
has a clearance that can be transferred.
(2) The State Department of Social Services shall hold criminal
record clearances in its active files for a minimum of two years
after an employee is no longer employed at a licensed facility in
order for the criminal record clearance to be transferred.
(h) If a licensee or facility is required by law to deny
employment or to terminate employment of any employee based on
written notification from the state department that the employee has
a prior criminal conviction or is determined unsuitable for
employment under Section 1568.092, the licensee or facility shall not
incur civil liability or unemployment insurance liability as a
result of that denial or termination.
(i) (1) The Department of Justice shall charge a fee sufficient to
cover its cost in providing services to comply with the 14-day
requirement contained in subdivision (c) for provision to the
department of criminal record information.
(2) Paragraph (1) shall cease to be implemented when the
department adopts emergency regulations pursuant to Section 1522.04,
and shall become inoperative when permanent regulations are adopted
under that section.
(j) Amendments to the provisions of this section made in the 1998
calendar year shall be implemented commencing 60 days after the
effective date of the act amending this section in the 1998 calendar
year, except those provisions for the submission of fingerprints for
searching the records of the Federal Bureau of Investigation, which
shall be implemented commencing January 1, 1999.
SEC. 360. Section 1568.092 of the Health and Safety Code is
amended to read:
1568.092. (a) The department may prohibit any person from being a
member of the board of directors, an executive director, or an
officer of a licensee or a licensee from employing, or continuing the
employment of, or allowing in a licensed facility, or allowing
contact with clients of a licensed facility by, any employee,
prospective employee, or person who is not a client who has:
(1) Violated, aided, or permitted the violation by any other
person of this chapter or of any rules or regulations adopted under
this chapter.
(2) Engaged in conduct which that is
inimical to the health, welfare, or safety of either an individual,
in or receiving services from the facility, or the people of the
State of California.
(3) Been denied an exemption to work or to be present in a
facility, when that person has been convicted of a crime as defined
in Section 1568.09.
(4) Engaged in any other conduct which
that would constitute a basis for disciplining a licensee.
(5) Engaging Engaged in acts of
financial malfeasance concerning the operation of a facility,
including, but not limited to, improper use or embezzlement of client
moneys and property or fraudulent appropriation for personal gain of
facility moneys and property, or willful or negligent failure to
provide services.
(b) The excluded person, the facility, and the licensee shall be
given written notice of the basis of the action of the department and
of the right to an appeal of the excluded person. The notice shall
be served either by personal service or by registered mail. Within 15
days after the department serves the notice, the excluded person may
file with the department a written appeal of the exclusion order. If
the excluded person fails to file a written appeal within the
prescribed time, the action of the department shall be final.
(c) (1) The department may require the immediate removal of an
executive director, a board member, or an officer of a licensee or
exclusion of an employee, prospective employee, or person who is not
a client from a facility pending a final decision of the matter when,
in the opinion of the director, the action is necessary to protect
residents or clients from physical or mental abuse, abandonment, or
any other substantial threat to their health or safety.
(2) If the department requires the immediate removal of a member
of the board of directors, an executive director, or an officer of a
licensee or exclusion of an employee, prospective employee, or person
who is not a client from a facility, the department shall serve an
order of immediate exclusion upon the excluded person which
that shall notify the excluded person of the
basis of the department's action and of the excluded person's right
to a hearing.
(3) Within 15 days after the department serves an order of
immediate exclusion, the excluded person may file a written appeal of
the exclusion with the department. The department's action shall be
final if the excluded person does not appeal the exclusion within the
prescribed time. The department shall do the following upon receipt
of a written appeal:
(A) Within 30 days of receipt of the appeal, serve an accusation
upon the excluded person.
(B) Within 60 days of receipt of a notice of defense by the
excluded person pursuant to Section 11506 of the Government Code,
conduct a hearing on the accusation.
(4) An order of immediate exclusion of the excluded person from
the facility shall remain in effect until the hearing is completed
and the director has made a final determination on the merits.
However, the order of immediate exclusion shall be deemed vacated if
the director fails to make a final determination on the merits within
60 days after the original hearing has been completed.
(d) An excluded person who files a written appeal of the exclusion
order with the department pursuant to this section shall, as part of
the written request, provide his or her current mailing address. The
excluded person shall subsequently notify the department in writing
of any change in mailing address, until the hearing process has been
completed or terminated.
(e) Hearings held pursuant to this section shall be conducted in
accordance with Chapter 5 (commencing with Section 11500) of Division
3 of Title 2 of the Government Code. The standard of proof shall be
the preponderance of the evidence and the burden of proof shall be on
the department.
(f) The department may institute or continue a disciplinary
proceeding against a member of the board of directors, an executive
director, or an officer of a licensee or an employee, prospective
employee, or person who is not a client upon any ground provided by
this section , or . The department may
enter an order prohibiting any person from being a member of the
board of directors, an executive director, or an officer of a
licensee or prohibiting the excluded person's employment
or presence in the facility , or otherwise take
disciplinary action against the excluded person, notwithstanding any
resignation, withdrawal of employment application , or
change of duties by the excluded person, or any discharge, failure to
hire , or reassignment of the excluded person by the
licensee or that the excluded person no longer has contact with
clients at the facility.
(g) A licensee's failure to comply with the department's exclusion
order after being notified of the order shall be grounds for
disciplining the licensee pursuant to Section 1568.082.
(h) (1) (A) In cases where the excluded person appealed the
exclusion order and there is a decision and order of the department
upholding the exclusion order, the person shall be prohibited from
working in any facility or being licensed to operate any facility
licensed by the department or from being a certified foster parent
for the remainder of the excluded person's life, unless otherwise
ordered by the department.
(B) The excluded individual may petition for reinstatement one
year after the effective date of the decision and order of the
department upholding the exclusion order pursuant to Section 11522 of
the Government Code. The department shall provide the excluded
person with a copy of Section 11522 of the Government Code with the
decision and order.
(2) (A) In cases where the department informed the excluded person
of his or her right to appeal the exclusion order and the excluded
person did not appeal the exclusion order, the person shall be
prohibited from working in any facility or being licensed to operate
any facility licensed by the department or a certified foster parent
for the remainder of the excluded person's life, unless otherwise
ordered by the department.
(B) The excluded individual may petition for reinstatement after
one year has elapsed from the date of the notification of the
exclusion order pursuant to Section 11522 of the Government Code. The
department shall provide the excluded person with a copy of Section
11522 of the Government Code with the exclusion order.
SEC. 361. Section 1569.58 of the Health and Safety Code is amended
to read:
1569.58. (a) The department may prohibit any person from being a
member of the board of directors, an executive director, a board
member, or an officer of a licensee, or a licensee from employing, or
continuing the employment of, or allowing in a licensed facility, or
allowing contact with clients of a licensed facility by, any
employee, prospective employee, or person who is not a client who
has:
(1) Violated, or aided or permitted the violation by any other
person of, any provisions of this chapter or of any rules or
regulations promulgated under this chapter.
(2) Engaged in conduct which that is
inimical to the health, morals, welfare, or safety of either an
individual in or receiving services from the facility, or the people
of the State of California.
(3) Been denied an exemption to work or to be present in a
facility, when that person has been convicted of a crime as defined
in Section 1569.17.
(4) Engaged in any other conduct which that
would constitute a basis for disciplining a licensee.
(5) Engaging Engaged in acts of
financial malfeasance concerning the operation of a facility,
including, but not limited to, improper use or embezzlement of client
moneys and property or fraudulent appropriation for personal gain of
facility moneys and property, or willful or negligent failure to
provide services for the care of clients.
(b) The excluded person, the facility, and the licensee shall be
given written notice of the basis of the department's action and of
the excluded person's right to an appeal. The notice shall be served
either by personal service or by registered mail. Within 15 days
after the department serves the notice, the excluded person may file
with the department a written appeal of the exclusion order. If the
excluded person fails to file a written appeal within the prescribed
time, the department's action shall be final.
(c) (1) The department may require the immediate removal of a
member of the board of directors, an executive director, or an
officer of a licensee or exclusion of an employee, prospective
employee, or person who is not a client from a facility pending a
final decision of the matter, when, in the opinion of the director,
the action is necessary to protect residents or clients from physical
or mental abuse, abandonment, or any other substantial threat to
their health or safety.
(2) If the department requires the immediate removal of a member
of the board of directors, an executive director, or an officer of a
licensee or exclusion of an employee, prospective employee, or person
who is not a client from a facility the department shall serve an
order of immediate exclusion upon the excluded person which
that shall notify the excluded person of the
basis of the department's action and of the excluded person's right
to a hearing.
(3) Within 15 days after the department serves an order of
immediate exclusion, the excluded person may file a written appeal of
the exclusion with the department. The department's action shall be
final if the excluded person does not appeal the exclusion within the
prescribed time. The department shall do the following upon receipt
of a written appeal:
(A) Within 30 days of receipt of the appeal, serve an accusation
upon the excluded person.
(B) Within 60 days of receipt of a notice of defense by the
excluded person pursuant to Section 11506 of the Government Code,
conduct a hearing on the accusation.
(4) An order of immediate exclusion of the excluded person from
the facility shall remain in effect until the hearing is completed
and the director has made a final determination on the merits.
However, the order of immediate exclusion shall be deemed vacated if
the director fails to make a final determination on the merits within
60 days after the original hearing has been completed.
(d) An excluded person who files a written appeal of the exclusion
order with the department pursuant to this section shall, as part of
the written request, provide his or her current mailing address. The
excluded person shall subsequently notify the department in writing
of any change in mailing address, until the hearing process has been
completed or terminated.
(e) Hearings held pursuant to this section shall be conducted in
accordance with Chapter 5 (commencing with Section 11500) of Division
3 of Title 2 of the Government Code. The standard of proof shall be
the preponderance of the evidence and the burden of proof shall be on
the department.
(f) The department may institute or continue a disciplinary
proceeding against a member of the board of directors, an executive
director, or an officer of a licensee or an employee, prospective
employee, or person who is not a client upon any ground provided by
this section , or . The department may
enter an order prohibiting any person from being a member of the
board of directors, an executive director, or an officer of a
licensee, or prohibiting the excluded person's employment
or presence in the facility , or otherwise take
disciplinary action against the excluded person, notwithstanding any
resignation, withdrawal of employment application , or
change of duties by the excluded person, or any discharge, failure to
hire , or reassignment of the excluded person by the
licensee or that the excluded person no longer has contact with
clients at the facility.
(g) A licensee's failure to comply with the department's exclusion
order after being notified of the order shall be grounds for
disciplining the licensee pursuant to Section 1569.50.
(h) (1) (A) In cases where the excluded person appealed the
exclusion order and there is a decision and order of the department
upholding the exclusion order, the person shall be prohibited from
working in any facility or being licensed to operate any facility
licensed by the department or from being a certified foster parent
for the remainder of the excluded person's life, unless otherwise
ordered by the department.
(B) The excluded individual may petition for reinstatement one
year after the effective date of the decision and order of the
department upholding the exclusion order pursuant to Section 11522 of
the Government Code. The department shall provide the excluded
person with a copy of Section 11522 of the Government Code with the
decision and order.
(2) (A) In cases where the department informed the excluded person
of his or her right to appeal the exclusion order and the excluded
person did not appeal the exclusion order, the person shall be
prohibited from working in any facility or being licensed to operate
any facility licensed by the department or a certified foster parent
for the remainder of the excluded person's life, unless otherwise
ordered by the department.
(B) The excluded individual may petition for reinstatement after
one year has elapsed from the date of the notification of the
exclusion order pursuant to Section 11522 of the Government Code. The
department shall provide the excluded person with a copy of Section
11522 of the Government Code with the exclusion order.
SEC. 362. 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) Those persons conducting inspections of a
day care facilities shall meet qualifications approved by the State
Personnel Board.
(d) 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.
(e) The budget for the child care licensing branch shall be
included as a separate entry within the budget of the department.
SEC. 363. Section 1596.847 of the Health and Safety Code is
amended to read:
1596.847. (a) A child day care facility shall not use or have on
the premises, on or after July 1, 1998, a full-size or non-full-size
crib that is unsafe for any infant using the crib, as described in
Article 1 (commencing with Section 24500) of Chapter 4.7 of Division
20. This subdivision shall not apply to any antique or collectible
crib provided if it is not used by, or
accessible to, any child in the child day care facility.
(b) The State Department of Social Services shall provide
information and instructional materials regarding sudden infant death
syndrome, explaining the medical effects upon infants and young
children and emphasizing measures that may reduce the risk, free of
charge to any child care facility licensed to provide care to
children under the age of two years. This shall occur upon licensure
and, on a one-time basis only, at the time of a regularly scheduled
site visit.
(c) To the maximum extent practicable, the materials provided to
child care facilities shall substantially reflect the information
contained in materials approved by the State Department of Health
Services for public circulation. The State Department of Health
Services shall make available, to child care facilities, free of
charge, information in camera-ready typesetting format. Nothing in
this section prohibits the State Department of Social Services from
obtaining free and suitable information from any other public or
private agency. The information and instructional materials provided
pursuant to this section shall focus upon the serious nature of the
risk to infants and young children presented by sudden infant death
syndrome.
(e)
(d) The requirement that informational and
instructional materials be provided pursuant to this section applies
only when those materials have been supplied to those persons or
entities that are required to provide the materials. The persons or
entities required to provide these materials shall not be subject to
any legal cause of action whatsoever based on the requirements of
this section.
(f)
(e) For persons or agencies providing these materials
pursuant to this section, this section does not require the provision
of duplicative or redundant informational and instructional
materials.
SEC. 364. Section 1596.8865 of the Health and Safety Code is
amended to read:
1596.8865. (a) When a local child protective agency, as defined
in Section 11165 of the Penal Code, has a reasonable suspicion, as
defined in subdivision (a) of Section 11166 of the Penal Code, that
the death or serious injury of a child occurred at a child day care
facility because of abuse or willful neglect by the personnel of the
child day care facility, the agency shall immediately notify the
director.
(b) Within two working days of receipt of the evidence that the
death or serious injury occurred at a child day care facility because
of abuse or willful neglect by the personnel of the child day care
facility, the department shall temporarily suspend the license,
registration, or special permit of the facility , and
shall immediately notify the licensee, registrant, or holder of the
special permit of the temporary suspension and the effective date
thereof and at the same time serve the provider with an accusation.
The hearing shall be set and conducted in the manner provided in
Section 1596.886, and the temporary suspension shall have the same
effect and duration as provided in Section 1596.886.
(c) The director shall request that , and the
city police, county sheriff, or other law enforcement agencies ,
and any other county agencies , investigating the
death or serious injury of the child shall ,
expedite and coordinate evidence gathering in the case ,
and make the evidence available , to the extent
that providing the evidence will not adversely affect any criminal
prosecution, make that evidence available as soon as
possible for the purposes of the hearing on the temporary suspension.
(d) As used in this section, "serious injury" means a serious
impairment of physical condition, including, but not limited to, the
following: loss of consciousness; concussion; bone fracture;
protracted loss or impairment of function of any bodily member or
organ; a wound requiring extensive suturing; and serious
disfigurement.
SEC. 365. Section 1596.8897 of the Health and Safety Code is
amended to read:
1596.8897. (a) The department may prohibit any person from being
a member of the board of directors, an executive director, or an
officer of a licensee or a licensee from employing, or continuing the
employment of, or allowing in a licensed facility, or allowing
contact with clients of a licensed facility by, any employee,
prospective employee, or person who is not a client who has:
(1) Violated, or aided or permitted the violation by any other
person of, any provisions of this chapter or of any rules or
regulations promulgated under this chapter.
(2) Engaged in conduct which that is
inimical to the health, morals, welfare, or safety of either an
individual in or receiving services from the facility, or the people
of the State of California.
(3) Been denied an exemption to work or to be present in a
facility, when that person has been convicted of a crime as defined
in Section 1596.871.
(4) Engaged in any other conduct which
that would constitute a basis for disciplining a licensee.
(5) Engaging Engaged in
acts of financial malfeasance concerning the operation of a facility,
including, but not limited to, improper use or embezzlement of
client moneys and property or fraudulent appropriation for personal
gain of facility moneys and property, or willful or negligent failure
to provide services for the care of clients.
(b) The excluded person, the facility, and the licensee shall be
given written notice of the basis of the department's action and of
the excluded person's right to an appeal. The notice shall be served
either by personal service or by registered mail. Within 15 days
after the department serves the notice, the excluded person may file
with the department a written appeal of the exclusion order. If the
excluded person fails to file a written appeal within the prescribed
time, the department's action shall be final.
(c) (1) The department may require the immediate removal of a
member of the board of directors, an executive director, or an
officer of a licensee or exclusion of an employee, prospective
employee, or person who is not a client from a facility pending a
final decision of the matter, when, in the opinion of the director,
the action is necessary to protect residents or clients from physical
or mental abuse, abandonment, or any other substantial threat to
their health or safety.
(2) If the department requires the immediate removal of a member
of the board of directors, an executive director, or an officer of a
licensee or exclusion of an employee, prospective employee, or person
who is not a client from a facility, the department shall serve an
order of immediate exclusion upon the excluded person which
that shall notify the excluded person of the
basis of the department's action and of the excluded person's right
to a hearing.
(3) Within 15 days after the department serves an order of
immediate exclusion, the excluded person may file a written appeal of
the exclusion with the department. The department's action shall be
final if the excluded person does not appeal the exclusion within the
prescribed time. The department shall do the following upon receipt
of a written appeal:
(A) Within 30 days of receipt of the appeal, serve an accusation
upon the excluded person.
(B) Within 60 days of receipt of a notice of defense by the
employee or prospective employee pursuant to Section 11506 of the
Government Code, conduct a hearing on the accusation.
(4) An order of immediate exclusion of the excluded person from
the facility shall remain in effect until the hearing is completed
and the director has made a final determination on the merits.
However, the order of immediate exclusion shall be deemed vacated if
the director fails to make a final determination on the merits within
60 days after the original hearing has been completed.
(d) An excluded person who files a written
appeal of the exclusion order with the department pursuant to
this section shall, as part of the written request, provide his or
her current mailing address. The excluded person shall subsequently
notify the department in writing of any change in mailing address,
until the hearing process has been completed or terminated.
(e) Hearings held pursuant to this section shall be conducted in
accordance with Chapter 5 (commencing with Section 11500) of Division
3 of Title 2 of the Government Code. The standard of proof shall be
the preponderance of the evidence and the burden of proof shall be on
the department.
(f) The department may institute or continue a disciplinary
proceeding against a member of the board of directors, an executive
director, or an officer of a licensee or an employee, prospective
employee, or person who is not a client upon any ground provided by
this section , or . The department may
enter an order prohibiting any person from being a member of the
board of directors, the executive director, or an officer of a
licensee or prohibiting the excluded
person's employment or presence in the facility , or
otherwise take disciplinary action against the excluded person,
notwithstanding any resignation, withdrawal of employment application
, or change of duties by the excluded person, or any
discharge, failure to hire , or reassignment of the
excluded person by the licensee or that the excluded person no longer
has contact with clients at the facility.
(g) A licensee's failure to comply with the department's exclusion
order after being notified of the order shall be grounds for
disciplining the licensee pursuant to Section 1596.885 or 1596.886.
(h) (1) (A) In cases where the excluded person appealed the
exclusion order and there is a decision and order upholding the
exclusion order, the person shall be prohibited from working in any
facility or being licensed to operate any facility licensed by the
department or from being a certified foster parent for the remainder
of the excluded person's life, unless otherwise ordered by the
department.
(B) The excluded individual may petition for reinstatement one
year after the effective date of the decision and order of the
department upholding the exclusion order pursuant to Section 11522 of
the Government Code. The department shall provide the excluded
person with a copy of Section 11522 of the Government Code with the
decision and order.
(2) (A) In cases where the department informed the excluded person
of his or her right to appeal the exclusion order and the excluded
person did not appeal the exclusion order, the person shall be
prohibited from working in any facility or being licensed to operate
any facility licensed by the department or a certified foster parent
for the remainder of the excluded person's life, unless otherwise
ordered by the department.
(B) The excluded individual may petition for reinstatement after
one year has elapsed from the date of the notification of the
exclusion order pursuant to Section 11522 of the Government Code. The
department shall provide the excluded person with a copy of Section
11522 of the Government Code with the exclusion order.
SEC. 366. Section 1765.145 of the Health and Safety Code is
amended to read:
1765.145. (a) A licensee using mobile
services pursuant to this chapter shall, at the state
department's option, be periodically inspected, in addition
to any inspections required pursuant to the parent facility
licensure requirements, by a duly authorized representative of the
state department. Reports of each inspection shall
be prepared by the representative conducting it upon forms prepared
and furnished by the state department and filed
with the state department. The inspection shall be
for the purpose of ensuring that this chapter and the rules and
regulations of the state department adopted under
this chapter are being followed.
(b) Any officer, employee, or agent of the state
department may enter and inspect any building, premises, or
vehicle and may have access to and inspect any document, file, or
other record, of a mobile unit or of a parent facility operating a
mobile unit, at any reasonable time to assure compliance with, or to
prevent violation of, this chapter.
(c) After the initial licensure, or the initial approval of the
addition to existing licensure of a parent facility, the mobile unit
shall be periodically reviewed for compliance. When approved as
additions to the existing licensure of a parent facility, reviews
shall be conducted as a part of the parent facility's regular
inspection. When the mobile unit is an independently licensed clinic,
it shall be reviewed in accordance with the licensing inspection
schedule for clinics.
(d) Demonstration of a mock emergency drill shall be observed by
state department staff in the mobile unit on a
site where patient mobility is limited.
SEC. 367. Section 4730.8 of the Health and Safety Code is amended
to read:
4730.8. (a) Notwithstanding the
provisions of Sections , 4730, 4730.1,
and 4730.2, or any other provision of law, the governing board of a
sanitation district in the County of Riverside that includes no
territory within a city shall be the county board of supervisors.
(b) The sanitation district may include all
or a part of the territory of one or more previously existing
sanitary districts that lie within the unincorporated territory of
the county.
(c) If the sanitation district includes any
part of a sanitary district, the sanitation district shall not
perform any of the functions of the sanitary district within the
boundaries of the sanitary district if the sanitary district has
performed that function within the 10 years immediately preceding
January 1, 1994.
(d) The sanitation district may handle,
treat, and manage solid waste, as defined pursuant to the California
Integrated Waste Management Act of 1989 , Division
(Division 30 (commencing with Section 40000) of the
Public Resources Code Code) , in the
same manner as the County of Riverside is authorized pursuant to that
act.
SEC. 368. Section 11162.1 of the Health and Safety Code is amended
to read:
11162.1. (a) The prescription forms for controlled substances
shall be printed with the following features:
(1) A latent, repetitive "void" pattern shall be printed across
the entire front of the prescription blank; if a prescription is
scanned or photocopied, the word "void" shall appear in a pattern
across the entire front of the prescription.
(2) A watermark shall be printed on the backside of the
prescription blank; the watermark shall consist of the words
"California Security Prescription."
(3) A chemical void protection that prevents alteration by
chemical washing.
(4) A feature printed in thermo-chromic ink.
(5) An area of opaque writing so that the writing disappears if
the prescription is lightened.
(6) A description of the security features included on each
prescription form.
(7) (A) Six quantity check off boxes shall be printed on the form
and the following quantities shall appear:
1-24
25-49
50-74
75-100
101-150
151 and over.
(B) In conjunction with the quantity boxes, a space shall be
provided to designate the units referenced in the quantity boxes when
the drug is not in tablet or capsule form.
(8) Prescription blanks shall contain a statement printed on the
bottom of the prescription blank that the "Prescription is void if
the number of drugs prescribed is not noted."
(9) The preprinted name, category of licensure, license number,
and federal controlled substance registration number of
the prescribing practitioner.
(10) A check box indicating the prescriber's order not to
substitute.
(11) An identifying number assigned to the approved security
printer by the Department of Justice.
(12) (A) A check box by the name of each prescriber when a
prescription form lists multiple prescribers.
(B) Each prescriber who signs the prescription form shall identify
himself or herself as the prescriber by checking the box by
their his or her name.
(b) Each batch of controlled substance prescription forms shall
have the lot number printed on the form and each form within that
batch shall be numbered sequentially beginning with the numeral one.
(c) (1) A prescriber designated by a licensed health care
facility, a clinic specified in Section 1200, or a clinic specified
in subdivision (a) of Section 1206 that has 25 or more physicians or
surgeons may order controlled substance prescription forms for use by
prescribers when treating patients in that facility without the
information required in paragraph (9) of subdivision (a) or paragraph
(3) of this subdivision.
(2) Forms ordered pursuant to this subdivision shall have the
name, category of licensure, license number, and federal controlled
substance registration number of the designated prescriber and the
name, address, category of licensure, and license number of the
licensed health care facility , the clinic specified in
Section 1200, or the clinic specified in subdivision (a) of Section
1206 that has 25 or more physicians or surgeons ,
preprinted on the form.
(3) Forms ordered pursuant to this section shall not be valid
prescriptions without the name, category of licensure, license
number, and federal controlled substance registration number of the
prescriber on the form.
(4) (A) Except as provided in subparagraph (B), the designated
prescriber shall maintain a record of the prescribers to whom the
controlled substance prescription forms are issued, that shall
include the name, category of licensure, license number, federal
controlled substance registration number, and the
quantity of controlled substance prescription forms issued to each
prescriber and . The record shall
be maintained in the health facility for three years.
(B) Forms ordered pursuant to this subdivision that are printed by
a computerized prescription generation system shall not be subject
to the requirements set forth in subparagraph (A)
or paragraph (7) of subdivision (a). Forms printed pursuant to this
subdivision that are printed by a computerized prescription
generation system may contain the prescriber's name, category of
professional licensure, license number, federal controlled substance
registration number, and the date of the prescription.
(d) This section shall become operative on July 1, 2004.
SEC. 369. Section 11502 of the Health and Safety Code is amended
to read:
11502. (a) All moneys, forfeited bail, or
fines received by any court under this division shall as soon as
practicable after the receipt thereof be deposited with the county
treasurer of the county in which such the
court is situated. Amounts so deposited shall be paid at least
once a month as follows: 75 percent to the State Treasurer by warrant
of the county auditor drawn upon the requisition of the clerk or
judge of said the court to be deposited
in the State Treasury on order of the State Controller; and 25
percent to the city treasurer of the city, if the offense occurred in
a city, otherwise to the treasurer of the county in which the
prosecution is conducted.
(b) Any money deposited in the State
Treasury under the provisions of this section
which that is determined by the State
Controller to have been erroneously deposited therein shall be
refunded by him or her , subject to the
approval of the State Board of Control
California Victim Compensation and Government Claims Board
prior to the payment of such the
refund, out of any money moneys in the
State Treasury which is that are
available by law for such that purpose.
SEC. 370. Section 11571.1 of the Health and Safety Code is amended
to read:
11571.1. (a) To effectuate the purposes of this article, the city
prosecutor or city attorney may file, in the name of the people, an
action for unlawful detainer against any person who is in violation
of the nuisance or illegal purpose provisions of subdivision 4 of
Section 1161 of the Code of Civil Procedure, with respect to a
controlled substance purpose. In filing this action, which shall be
based upon an arrest report or on another action or report by a
regulatory or law enforcement agency, the city prosecutor or city
attorney shall utilize the procedures set forth in Chapter 4
(commencing with Section 1159) of Title 3 of Part 3 of the Code of
Civil Procedure, except that in cases filed under this section, the
following also shall apply:
(1) (A) Prior to filing an action pursuant to this section, the
city prosecutor or city attorney shall give 30 calendar days' written
notice to the owner, requiring the owner to file an action for the
removal of the person who is in violation of the nuisance or illegal
purpose provisions of subdivision 4 of Section 1161 of the Code of
Civil Procedure with respect to a controlled substance purpose.
(B) This notice shall include sufficient documentation
establishing a violation of the nuisance or illegal purpose
provisions of subdivision 4 of Section 1161 of the Code of Civil
Procedure and shall be served upon the owner and the tenant in
accordance with subdivision (e) of this section .
(C) The notice to the tenant shall also include on the bottom of
its front page, in at least 14-point bold type, the following:
"Notice to Tenant: This notice is not a notice of eviction.
However, you should know that an eviction action may soon be filed in
court against you for suspected drug activity, as described above.
You should call (insert name and telephone number of the city
attorney or prosecutor pursuing the action) or legal aid to stop the
eviction action if any of the following is applicable:
(i) You are not the person named in this notice.
(ii) The person named in the notice does not live with you.
(iii) The person named in the notice has permanently moved.
(iv) You do not know the person named in the notice.
(v) You have any other legal defense or legal reason to stop the
eviction action.
A list of legal assistance providers is attached to this notice.
Some provide free legal help if you are eligible."
(D) The owner shall, within 30 calendar days of the mailing of the
written notice, either provide the city prosecutor or city attorney
with all relevant information pertaining to the unlawful detainer
case, or provide a written explanation setting forth any
safety-related reasons for noncompliance, and an assignment to the
city prosecutor or city attorney of the right to bring an unlawful
detainer action against the tenant.
(E) The assignment shall be on a form provided by the city
prosecutor or city attorney and may contain a provision for costs of
investigation, discovery, and reasonable attorney's fees, in an
amount not to exceed six hundred dollars ($600).
(F) If the city prosecutor or city attorney accepts the assignment
of the right of the owner to bring the unlawful detainer action, the
owner shall retain all other rights and duties, including the
handling of the tenant's personal property, following issuance of the
writ of possession and its delivery to and execution by the
appropriate agency.
(2) Upon the failure of the owner to file an action pursuant to
this section, or to respond to the city prosecutor or city attorney
as provided in paragraph (1), or having filed an action, if the owner
fails to prosecute it diligently and in good faith, the city
prosecutor or city attorney may file and prosecute the action, and
join the owner as a defendant in the action. This action shall have
precedence over any similar proceeding thereafter brought by the
owner, or to one previously brought by the owner and not prosecuted
diligently and in good faith. Service of the summons and complaint
upon the defendant owner shall be in accordance with Sections 415.10,
415.20, 415.30, 415.40, and 415.50 of the Code of Civil Procedure.
(3) If a jury or court finds the defendant tenant guilty of
unlawful detainer in a case filed pursuant to paragraph (2), the city
prosecutor or city attorney may be awarded costs, including the
costs of investigation and discovery and reasonable attorney's fees.
These costs shall be assessed against the defendant owner, to whom
notice was directed pursuant to paragraph (1), and once an abstract
of judgment is recorded, it shall constitute a lien on the subject
real property.
(4) Nothing in this article shall prevent a local governing body
from adopting and enforcing laws, consistent with this article,
relating to drug abatement. Where local laws duplicate or supplement
this article, this article shall be construed as providing
alternative remedies and not preempting the field.
(5) Nothing in this article shall prevent a tenant from receiving
relief against a forfeiture of a lease pursuant to Section 1179 of
the Code of Civil Procedure.
(b) In any proceeding brought under this section, the court may,
upon a showing of good cause, issue a partial eviction ordering the
removal of any person, including, but not limited to, members of the
tenant's household if the court finds that the person has engaged in
the activities described in subdivision (a). Persons removed pursuant
to this section may be permanently barred from returning to or
reentering any portion of the entire premises. The court may further
order as an express condition of the tenancy that the remaining
tenants shall not give permission to or invite any person who has
been removed pursuant to this subdivision to return to or reenter any
portion of the entire premises.
(c) For the purposes of this section, "controlled substance
purpose" means the manufacture, cultivation, importation into the
state, transportation, possession, possession for sale, sale,
furnishing, administering, or giving away, or providing a place to
use or fortification of a place involving, cocaine, phencyclidine,
heroin, methamphetamine, or any other controlled substance, in a
violation of subdivision (a) of Section 11350, Section 11351,
11351.5, 11352, or 11359, subdivision (a) of Section 11360, or
Section 11366, 11366.6, 11377, 11378, 11378.5, 11379, 11379.5,
11379.6, or 11383, if the offense occurs on the subject real property
and is documented by the observations of a peace officer.
(d) Notwithstanding subdivision (b) of Section 68097.2 of the
Government Code, a public entity may waive all or part of the costs
incurred in furnishing the testimony of a peace officer in an
unlawful detainer action brought pursuant to this section.
(e) The notice and documentation described in paragraph (1) of
subdivision (a) shall be given in writing and may be given either by
personal delivery or by deposit in the United States mail in a sealed
envelope, postage prepaid, addressed to the owner at the address
known to the public entity giving the notice, or as shown on the last
equalized assessment roll, if not known. Separate notice of not less
than 30 calendar days and documentation shall be provided to the
tenant in accordance with this subdivision. Service by mail shall be
deemed to be completed at the time of deposit in the United States
mail. Proof of giving the notice may be made by a declaration signed
under penalty of perjury by any employee of the public entity which
shows service in conformity with this section.
(f) This section shall only apply to the following courts:
(1) In the County of Los Angeles, any court having jurisdiction
over unlawful detainer cases involving real property situated in the
City of Los Angeles or in the City of Long Beach.
(2) In the County of San Diego, any court having jurisdiction over
unlawful detainer cases involving real property situated in the City
of San Diego.
(3) In the County of Alameda, any court with jurisdiction over
unlawful detainer cases involving real property situated in the City
of Oakland.
(g) (1) The city attorney and city prosecutor of each
participating jurisdiction shall provide to the Judicial Council the
following information:
(A) The number of notices provided pursuant to paragraph (1) of
subdivision (a).
(B) The number of cases filed by an owner, upon notice.
(C) The number of assignments executed by owners to the city
attorney or city prosecutor.
(D) The number of three-day, 30-day, or 60-day notices issued by
the city attorney or city prosecutor.
(E) The number of cases filed by the city attorney or city
prosecutor.
(F) The number of times that an owner is joined as a defendant
pursuant to this section.
(G) As to each case filed by an owner, the city attorney, or the
city prosecutor, the following information:
(i) The number of judgments ordering an eviction or partial
eviction (specify whether default, stipulated, or following trial).
(ii) The number of cases, listed by separate categories, in which
the case was withdrawn or in which the tenant prevailed.
(iii) The number of other dispositions (specify disposition).
(iv) The number of defendants represented by counsel.
(v) Whether the case was a trial by the court or a trial by a
jury.
(vi) Whether an appeal was taken, and, if so, the result of the
appeal.
(vii) The number of cases in which partial eviction was requested,
and the number of cases in which the court ordered a partial
eviction.
(H) As to each case in which a notice was issued, but no case was
filed, the following information:
(i) The number of instances in which a tenant voluntarily vacated
the unit.
(ii) The number of instances in which a tenant vacated a unit
prior to the providing of the notice.
(iii) The number of cases in which the notice provided pursuant to
subdivision (a) was erroneously sent to the tenant. (List reasons,
if known, for the erroneously sent notice, such as reliance on
information on the suspected controlled substance law violator's name
or address that was incorrect; clerical error; or any other
reason) reason.)
(iv) The number of other resolutions (specify resolution).
(2) (A) Information compiled pursuant to this section shall be
reported annually to the Judicial Council on or before January 30 of
each year.
(B) The Judicial Council shall thereafter submit a brief report to
the Senate and Assembly Committees on the Judiciary once on or
before April 15, 2007, and once on or before April 15, 2009,
summarizing the information collected pursuant to this section and
evaluating the merits of the pilot programs established by this
section.
(h) This section shall remain in effect only until January 1,
2010, and as of that date is repealed unless a later enacted statute
deletes or extends that date.
SEC. 371. Section 12701 of the Health and Safety Code is amended
to read:
12701. A person is guilty of a separate offense for each day
during which he or she commits, continues, or permits a
violation of this part or any provision of , or
any order , or regulation issued
pursuant to , this part.
SEC. 372. Section 13052 of the Health and Safety Code is amended
to read:
13052. (a) The public entity rendering the
service may present a claim to the public entity liable therefor. If
the claim is approved by the head of the fire department, if any, in
the public entity to which the claim is presented, and by
its governing body, it shall be paid in the same manner as other
charges and if the claim is not paid , an
action may be brought for its collection.
(b) Notwithstanding any other provision of
this section, any claims against the state shall be presented to the
State Board of Control California Victim
Compensation and Governmen t Claims Board in
accordance with Part 3 (commencing with Section 900) and Part 4
(commencing with Section 940) of Division 3.6 of Title 1 of the
Government Code.
SEC. 373. Section 17021.6 of the Health and Safety Code is amended
to read:
17021.6. (a) The owner of any employee housing who has qualified
or intends to qualify for a permit to operate pursuant to this part
may invoke this section.
(b) Any employee housing consisting of no more than 12 beds in a
group quarters or 12 units or spaces designed for use by a
singe single family or household shall be deemed
an agricultural land use designation for the purposes of this
section. For the purpose of all local ordinances, employee housing
shall not be deemed a use that implies that the employee housing is
an activity that differs in any other way from an agricultural use.
No conditional use permit, zoning variance, or other zoning clearance
shall be required of this employee housing that is not required of
any other agricultural activity in the same zone. The permitted
occupancy in employee housing in an agricultural zone shall include
agricultural employees who do not work on the property where the
employee housing is located.
(c) Except as otherwise provided in this part, employee housing
consisting of no more than 12 beds in a group quarters or 12 units or
spaces designed for use by a single family or household shall not be
subject to any business taxes, local registration fees, use permit
fees, or other fees to which other agricultural activities in the
same zone are not likewise subject. Nothing in this subdivision shall
be construed to forbid the imposition of local property taxes, fees
for water services and garbage collection, fees for normal
inspections, local bond assessments, and other fees, charges, and
assessments to which other agricultural activities in the same zone
are likewise subject. Neither the State Fire Marshal nor any local
public entity shall charge any fee to the owner, operator, or any
resident for enforcing fire inspection regulation pursuant to state
law or regulation or local ordinance, with respect to employee
housing that serves 12 or fewer persons.
(d) For the purposes of any contract, deed, or covenant for the
transfer of real property, employee housing consisting of no more
than 12 beds in a group quarters or 12 units or spaces designed for
use by a single family or household shall be considered an
agricultural use of property, notwithstanding any disclaimers to the
contrary. For purposes of this section, "employee housing" includes
employee housing defined in subdivision (b) of Section 17008, even if
the housing accommodations or property are not located in a rural
area, as defined by Section 50101.
(e) The Legislature hereby declares
that it is the policy of this state that each county and city shall
permit and encourage the development and use of sufficient numbers
and types of employee housing facilities as are commensurate with
local need. This section shall apply equally to any charter city,
general law city, county, city and county, district, and any other
local public entity.
(f) If any owner who invokes the provisions of this section fails
to maintain a permit to operate pursuant to this part throughout the
first 10 consecutive years following the issuance of the original
certificate of occupancy, both of the following shall occur:
(1) The enforcement agency shall notify the appropriate local
government entity.
(2) The public agency that has waived any taxes, fees,
assessments, or charges for employee housing pursuant to this section
may recover the amount of those taxes, fees, assessments, or charges
from the landowner, less 10 percent of that amount for each year
that a valid permit has been maintained.
(g) Subdivision (f) shall not apply to an owner of any
prospective, planned, or unfinished employee housing facility who has
applied to the appropriate state and local public entities for a
permit to construct or operate pursuant to this part prior to January
1, 1996.
SEC. 374. Section 18080.5 of the Health and Safety Code is amended
to read:
18080.5. (a) A numbered report of sale, lease, or rental form
issued by the department shall be submitted each time the following
transactions occur by or through a dealer:
(1) Whenever a manufactured home, mobilehome, or commercial coach
previously registered pursuant to this part is sold, leased with an
option to buy, or otherwise transferred.
(2) Whenever a manufactured home, mobilehome, or commercial coach
not previously registered in this state is sold, rented, leased,
leased with an option to buy, or otherwise transferred.
(b) The numbered report of sale, lease, or rental forms shall be
used and distributed in accordance with the following terms and
conditions:
(1) A copy of the form shall be delivered to the purchaser.
(2) All fees and penalties due for the transaction that were
required to be reported with the report of sale, lease, or rental
form shall be paid to the department within 10 calendar days from the
date the transaction is completed, as specified by subdivision (e).
Penalties due for noncompliance with this paragraph shall be paid by
the dealer. The dealer shall not charge the consumer for those
penalties.
(3) Notice of the registration or transfer of a manufactured home
or mobilehome shall be reported pursuant to subdivision (d).
(4) The original report of sale, lease, or rental form, together
with all required documents to report the transaction or make
application to register or transfer a manufactured home, mobilehome,
or commercial coach, shall be forwarded to the department. Any
application shall be submitted within 10 calendar days from the date
the transaction was required to be reported, as defined by
subdivision (e).
(c) A manufactured home, mobilehome, or commercial coach
displaying a copy of the report of sale, lease, or rental may be
occupied without registration decals or registration card until the
registration decals and registration card are received by the
purchaser.
(d) In addition to the other requirements of this section, every
dealer upon transferring by sale, lease, or otherwise any
manufactured home or mobilehome shall, not later than the 10th
calendar day thereafter, not counting the date of sale, give written
notice of the transfer to the assessor of the county where the
manufactured home or mobilehome is to be installed. The written
notice shall be upon forms provided by the department containing any
information that the department may require, after consultation with
the assessors. Filing of a copy of the notice with the assessor in
accordance with this section shall be in lieu of filing a change of
ownership statement pursuant to Sections 480 and 482 of the Revenue
and Taxation Code.
(e) For purposes of this section, a transaction by or through a
dealer shall be deemed completed and consummated and any fees and the
required report of sale, lease, or rental is
are due when any of the following occurs:
(1) The purchaser of any commercial coach has signed a purchase
contract or security agreement or paid any purchase price, the lessee
of a new commercial coach has signed a lease agreement or lease with
an option to buy or paid any purchase price, or the lessee of a used
commercial coach has either signed a lease with an option to buy or
paid any purchase price, and the purchaser or lessee has taken
physical possession or delivery of the commercial coach.
(2) For sales subject to Section 18035, when all the amounts other
than escrow fees and amounts for uninstalled or undelivered
accessories are disbursed from the escrow account.
(3) For sales subject to Section 18035.2, when the installation
has been completed and a certificate of occupancy has been issued.
SEC. 375. Section 19161 of the Health and Safety Code is amended
to read:
19161. (a) Each city, city and county, or county, may assess the
earthquake hazard in its jurisdiction and identify buildings subject
to its jurisdiction as being potentially hazardous to life in the
event of an earthquake. Potentially hazardous buildings include the
following:
(1) Unreinforced masonry buildings constructed prior to the
adoption of local building codes requiring earthquake resistant
design of buildings , that are
constructed of unreinforced masonry wall construction ,
and exhibit any of the following characteristics:
(A) Exterior parapets or ornamentation that may fall.
(B) Exterior walls that are not anchored to the floors or roof.
(C) Lacks Lack of an effective
system to resist seismic forces.
(2) Woodframe, multiunit residential buildings constructed before
January 1, 1978, where the ground floor portion of the structure
contains parking or other similar open floor space that causes soft,
weak, or open-front wall lines, as provided in a nationally
recognized model code relating to the retrofit of existing buildings
or substantially equivalent standards.
(b) Structural evaluations made pursuant to this section shall be
made by an architect as defined in Section 5500 of the Business and
Professions Code, or a civil or structural engineer registered
pursuant to the provisions of Chapter 7
(commencing with Section 6700) of Division 3 of the Business and
Professions Code, or staff of the enforcing agency, as described in
Section 17960, supervised by an architect or civil or structural
engineer authorized by this subdivision to make the structural
evaluations.
SEC. 376. Section 19165 of the Health and Safety Code is amended
to read:
19165. Any city, city and county, or county adopting an ordinance
establishing seismically hazardous building
seismic retrofit standards for seismically hazardous buildings
shall file for informational purposes with the Department of
Housing and Community Development a copy of those standards and all
subsequent amendments.
SEC. 377. Section 19982 of the Health and Safety Code is amended
to read:
19982. (a) The department by rule and regulation shall establish
a schedule of fees to pay the costs incurred by the department for
the work related to the administration and enforcement of
this part. Notwithstanding Section 13340 of the Government Code, the
fees collected shall be placed in the Mobilehome-Manufactured Home
Revolving Fund established by Section 18016.5, and are continuously
appropriated to the department for expenditure in carrying out
the provisions of this part.
(b) The total amount of money collect
collected pursuant to this part and contained in
the Mobilehome-Manufactured Home Revolving Fund on June 30 of each
fiscal year shall not exceed the amount needed for operating expenses
for one year for the enforcement of this part. If the total
amount of money collected pursuant to this part in the fund
exceeds this amount, the department shall make appropriate reductions
in the schedule of fees authorized by this section.
SEC. 378. Section 25159.12 of the Health and Safety Code is
amended to read:
25159.12. For purposes of this article, the following definitions
apply:
(a) "Annulus" means the space between the outside edge of the
injection tube and the well casing.
(b) "State board" means the State Water Resources Control Board.
(c) "Compatibility" means that waste constituents do not react
with each other, with the materials constituting the injection well,
or with fluids or solid geologic media in the injection zone or
confining zone in a manner as to cause leaching, precipitation of
solids, gas or pressure buildup, dissolution, or any other effect
which that will impair the
effectiveness of the confining zone or the safe operation of the
injection well.
(d) "Confining zone" means the geological formation, or part of a
formation, which that is intended to be
a barrier to prevent the migration of waste constituents from the
injection zone.
(e) "Constituent" means an element, chemical, compound, or mixture
of compounds which that is a component
of a hazardous waste or leachate and which
that has the physical or chemical properties that cause the
waste to be identified as hazardous waste by the department pursuant
to this chapter.
(f) "Discharge" means to place, inject, dispose of, or store
hazardous wastes into, or in, an injection well owned or operated by
the person who is conducting the placing, disposal, or storage.
(g) "Drinking water" has the same meaning as "potential source of
drinking water," as defined in subdivision (t) of Section 25208.2.
(h) "Facility" means the structures, appurtenances, and
improvements on the land, and all contiguous land, which
that are associated with an injection well
, which and are used for treating,
storing, or disposing of hazardous waste. A facility may consist of
several waste management units, including, but not limited to,
surface impoundments, landfills, underground or aboveground tanks,
sumps, pits, ponds, and lagoons , which that
are associated with an injection well.
(i) "Groundwater" means water, including, but not limited to,
drinking water , below the land surface in a zone of
saturation.
(j) "Hazardous waste" means any hazardous waste specified as
hazardous waste or extremely hazardous waste, as defined in this
chapter. Any waste mixture formed by mixing any waste or substance
with a hazardous waste shall be considered hazardous waste for the
purposes of this article.
(k) "Hazardous waste facilities permit" means a permit issued for
an injection well pursuant to Sections 25200 and 25200.6.
(l) "Injection well" or "well" means any bored, drilled, or driven
shaft, dug pit, or hole in the ground whose
the depth of which is greater than the
circumference of the bored hole and any associated subsurface
appurtenances, including, but not limited to, the casing. For the
purposes of this article, injection well does not include either of
the following:
(1) Wells exempted pursuant to Section 25159.24.
(2) Wells which that are regulated
by the Division of Oil and Gas in the Department of Conservation
pursuant to Division 3 (commencing with Section 3000) of the Public
Resources Code and Subpart F (commencing with Section 147.250)
of S ubchapter D of Chapter 1 of Part 147
of Title 40 of the Code of Federal Regulations and are in compliance
with that division and Subpart A (commencing with Section 146.1)
of Part 147 of Subchapter D of Chapter 1 of Title 40 of
the Code of Federal Regulations.
(m) "Injection zone" means that portion of the receiving formation
which that has received, is receiving,
or is expected to receive, over the lifetime of the well, waste
fluid from the injection well. "Injection zone" does not include that
portion of the receiving formation which
that exceeds the horizontal and vertical extent specified
pursuant to Section 25159.20.
(n) "Owner" means a person who owns a facility or part of a
facility.
(o) "Perched water" means a localized body of groundwater that
overlies, and is hydraulically separated from, an underlying body of
groundwater.
(p) "pH" means a measure of a sample's acidity expressed as a
negative logarithm of the hydrogen ion concentration.
(q) "Qualified person" means a person who has at least five years
of full-time experience in hydrogeology and who is a professional
geologist registered pursuant to Section 7850 of the Business and
Professions Code, or a registered petroleum engineer registered
pursuant to Section 6762 of the Business and Professions Code.
"Full-time experience" in hydrogeology may include a combination of
postgraduate studies in hydrogeology and work experience, with each
year of postgraduate work counted as one year of full-time work
experience, except that not more than three years of postgraduate
studies may be counted as full-time experience.
(r) "Receiving formation" means the geologic strata that are
hydraulically connected to the injection well.
(s) "Regional board" means the California regional water quality
control board for the region in which the injection well is located.
(t) "Report" means the hydrogeological assessment report specified
in Section 25179.7 25159.18 .
(u) "Safe Drinking Water Act" means Subchapter XII (commencing
with Section 300f) of Chapter 6A of Title 42 of the United States
Code.
(v) "Strata" means a distinctive layer or series of layers of
earth materials.
(w) "Waste management unit" means that portion of a facility used
for the discharge of hazardous waste into or onto land, including all
containment and monitoring equipment associated with that portion of
the facility.
SEC. 379. Section 25200.6 of the Health and Safety Code is amended
to read:
25200.6. (a) The department shall not issue a hazardous waste
facilities permit for an injection well or for the discharge of
hazardous waste into an injection well unless all of the following
conditions are met:
(1) A hydrogeological assessment report has been approved
pursuant to Section 25159.18.
(2) The groundwater monitoring required by Section 25159.16 is
included as a permit condition.
(3) The department finds that the hazardous wastes to be
discharged cannot be reasonably and adequately reduced, treated, or
disposed of by an alternative method other than well injection. This
finding shall be in writing and shall be supported by evidence citing
specific evidence presented to the department or evidence
which that is otherwise made available to the
department. The department shall provide public notice and
opportunity for comment before making this finding.
(4) The horizontal and vertical extent of the permitted injection
zone specified pursuant to Section 25159.20 is included as a permit
condition.
(5) The permit complies with and incorporates as a permit
condition any waste discharge requirements issued by the state board
or a regional board and the permit is consistent with all applicable
water quality control plans adopted pursuant to Section 13170 of the
Water Code and Article 3 (commencing with Section 13240) of Chapter 4
of Division 7 of the Water Code and with the 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, and any
amendments made to these plans, policies, or requirements. The
department may also include any more stringent requirement
which that the department determines is
necessary or appropriate to protect water quality.
(b) Notwithstanding the requirement to submit a hydrogeological
assessment report before application for a hazardous waste facility
permit under Section 25259. 18 251
59.18 , or notwithstanding the requirement to have a hazardous
waste facility permit or an approved hydrogeological assessment
report before application for an exemption pursuant to subdivision
(b) of Section 25159.15, the department shall process any
applications for a hazardous waste facility permit to construct a new
injection well from any person who has applied between May 15, 1984,
and December 31, 1984, for an underground injection control permit
from the federal Environmental Protection Agency pursuant to the Safe
Drinking Water Act (42 U.S.C. Sec. 300f et seq.), and who
has received that permit by July 1, 1986, in the following manner:
(1) The department shall accept a concurrent filing of the
hydrogeological assessment report required pursuant to Section
25159.18, the application for the hazardous waste facilities permit
filed pursuant to this section, and an application for an exemption
filed pursuant to subdivision (b) of Section 25159.15.
(2) The department shall grant or deny the hazardous waste
facilities permit within six months of the concurrent filing of a
completed application as specified in paragraph (1). However, the
department shall grant the hazardous waste facilities permit only if
the conditions in subdivision (a) are met.
SEC. 380. Section 25205.1 of the Health and Safety Code is amended
to read:
25205.1. For purposes of this article , the following
definitions apply:
(a) "Board" means the State Board of Equalization.
(b) "Facility" means any units or other structures, and all
contiguous land, used for the treatment, storage, disposal, or
recycling of hazardous waste, for which a permit or a grant of
interim status has been issued by the department for that activity
pursuant to Article 9 (commencing with Section 25200).
(c) "Large storage facility," in those cases where
in which total storage capacity is provided in a
permit, interim status document, or federal Part A application for
the facility, means a storage facility with capacity to store 1,000
or more tons of hazardous waste. In those cases where
in which it is not so provided, "large storage
facility" means a storage facility which that
stores 1,000 or more tons of hazardous waste during any one
month of the current reporting period commencing on or after July 1,
1991.
(d) "Large treatment facility," in those cases where
in which total treatment capacity is provided in
a permit, interim status document, or federal Part A application for
the facility, means a treatment facility with capacity to treat,
land treat, or recycle 1,000 or more tons of hazardous waste. In
those cases where in which it is not so
provided, "large treatment facility" means a treatment facility
which that treats, land treats, or
recycles 1,000 or more tons of hazardous waste during any one month
of the current reporting period commencing on or after July 1, 1991.
(e) "Generator" means a person who generates hazardous waste at an
individual site commencing on or after July 1, 1988. A generator
includes, but is not limited to, a person who is identified on a
manifest as the generator and whose identification number is listed
on that manifest, if that identifying information was provided by
that person or by an agent or employee of that person.
(f) "Ministorage facility," in those cases where
in which total storage capacity is provided in a
permit, interim status document, or federal Part A application for
the facility, means a storage facility with capacity to store 0.5
tons (1,000 pounds) or less of hazardous waste. In those cases
where in which it is not so provided,
"ministorage facility" means a storage facility which
that stores 0.5 tons (1,000 pounds) or less of
hazardous waste during any one month of the current reporting period
commencing on or after July 1, 1991.
(g) "Minitreatment facility," in those cases where
in which total treatment capacity is provided in
a permit, interim status document, or federal Part A application for
the facility, means a treatment facility with capacity to treat,
land treat, or recycle 0.5 tons (1,000 pounds) or less of hazardous
waste. In those cases where is in which
it is not so provided, "minitreatment facility, means a
treatment facility which that treats,
land treats, or recycles 0.5 tons (1,000 pounds) or less of hazardous
waste during any one month of the current reporting period
commencing on or after July 1, 1991.
(h) "Site" means the location of an operation which
that generates hazardous wastes and
which is noncontiguous to any other location of these
operations owned by the generator.
(i) "Small storage facility," in those cases where
in which total storage capacity is provided in a
permit, interim status document, or federal Part A application for
the facility, means a storage facility with capacity to store more
than 0.5 tons (1,000 pounds), but less than 1,000 tons of hazardous
waste. In those cases where in which it
is not so provided, "small storage facility,
facility" means a storage facility which
that stores more than 0.5 tons (1,000 pounds), but less
than 1,000 tons, of hazardous waste during any one month of the
current reporting period commencing on or after July 1, 1991.
(j) "Small treatment facility," in those cases where
in which total treatment capacity is provided in
a permit, interim status document, or federal Part A application for
the facility, means a treatment facility with capacity to treat,
land treat, or recycle more than 0.5 tons (1,000 pounds), but less
than 1,000 tons of hazardous waste. In those cases where it
in which this is not so
provided, "small treatment facility,"
facility" means a treatment facility which
that treats, land treats, or recycles more than 0.5 tons
(1,000 pounds), but less than 1,000 tons, of hazardous waste during
any month of the current reporting period commencing on or after July
1, 1991.
(k) "Unit" means a hazardous waste management unit, as defined in
regulations adopted by the department. Where
If an area is designated as a hazardous waste management unit
in a permit , it shall be conclusively presumed that the
area is a "unit."
(l) "Class 1 modification," "class 2 modification," and "class 3
modification" have the meanings provided in regulations adopted by
the department.
(m) "Hazardous waste" has the meaning provided in Section 25117.
The total tonnage of hazardous waste, unless otherwise provided by
law, includes the hazardous substance as well as any soil or other
substance which that is commingled with
the hazardous substance.
(n) "Land treat" means to apply hazardous waste onto or
incorporate it into the soil surface for the sole and express purpose
of degrading, transforming, or immobilizing the hazardous
constituents.
(o) "Treatment," "storage," and "disposal" means
mean only that treatment, storage, or disposal
of hazardous waste engaged in at a facility pursuant to a permit or
grant of interim status issued by the department pursuant to Article
9 (commencing with Section 25200). Treatment, storage, or disposal
that does not require such a this
permit or grant of interim status shall not be considered treatment,
storage, or disposal for purposes of this article.
(1) "Disposal" includes only the placement of hazardous waste onto
or into the ground for permanent disposition and does not include
the placement of hazardous waste in surface impoundments, as defined
in regulations adopted by the department, or the placement of
hazardous waste onto or into the ground solely for purposes of land
treatment.
(2) "Storage" does not include the ongoing presence of hazardous
wastes in the ground or in surface impoundments after the facility
has permanently discontinued accepting new hazardous wastes for
placement into the ground or into surface impoundments.
SEC. 381. Section 25208.2 of the Health and Safety Code is amended
to read:
25208.2. For purposes of this article, the following definitions
apply:
(a) "Active life of the facility" means that period of time when
the facility has the potential to adversely affect the waters of the
state, but if the owner enters into an agreement with the board to
properly close the impoundment on a specified date, the active life
of the facility means that period of time up to that specified date.
(b) "Background water quality" means the level of concentration of
indicator parameters in groundwater that is not, or has not been,
affected by any hazardous waste, hazardous waste constituent, or
hazardous waste leachate emanating from a particular waste management
unit.
(c) "Board" or "state board" means the State Water Resources
Control Board.
(d) "Close the impoundment" means the permanent termination of all
hazardous waste discharge operations at a waste management unit and
any operations necessary to prepare that waste management unit for
postclosure maintenance which that are
conducted pursuant to the federal Resource Conservation and Recovery
Act of 1976 (42 U.S.C. Sec. 6901 et seq.), and the regulations
adopted by the state board and the department concerning the closure
of surface impoundments.
(e) "Constituent" means an element, chemical compound, or mixture
of compounds which that is a component
of a hazardous waste or leachate and which has the
physical or chemical properties that cause the waste to be
identified as hazardous waste by the department.
(f) "Discharge" means to place, dispose of, or store liquid
hazardous wastes or hazardous wastes containing free liquids into or
in a surface impoundment owned or operated by the person who is
conducting the placing, disposal, or storage.
(g) "Emergency containment dike" means a berm which
that is located around a tank solely for the
purpose of containing any emergency spills from the tank and
which does not contain any liquid hazardous waste or
hazardous wastes containing free liquids for longer than 48 hours.
(h) "Facility" means the structures, appurtenances, and
improvements on the land, and all contiguous land, which
that are used for treating, storing, or
disposing of hazardous waste. A facility may consist of several waste
management units.
(i) "Free liquids" means liquids which
that readily separate from the solid portion of a hazardous
waste under ambient temperature and pressure.
(j) "Groundwater"
means water below the land surface in a zone of saturation.
(k) "Hazardous waste" means a waste that is a hazardous waste, as
specified in this chapter.
(l) "Indicator parameters" means the measureable physical or
chemical characteristics in groundwater or soil-pore moisture
which that are likely to be affected by
hazardous waste disposal operations and which are
used, for comparison purposes, to assess the result of hazardous
waste disposal operations at a particular waste management unit on
the waters of the state.
(m) "Landfill" means a facility or part of a facility where
hazardous waste is placed in or on land for disposal and
which that is not a land farm, surface
impoundment, or an injection well.
(n) "Leachate" means any fluid, including any constituents in the
liquid, that has percolated through, migrated from, or drained from,
a hazardous waste management unit.
(o) "Owner" means a person who owns a facility or part of a
facility.
(p) "Perched water" means a localized body of groundwater that
overlies, and is hydraulically separated from, an underlying body of
groundwater.
(q) "pH" means a measure of a sample's acidity expressed as a
negative logarithm of the hydrogen ion concentration.
(r) "Pile" means any noncontainerized accumulation of solid,
nonflowing hazardous waste which that
is used for the purpose of treatment or storage.
(s) "Pollution" has the same meaning as defined in Section 13050
of the Water Code.
(t) "Potential source of drinking water" means either water
which that is identified or designated
in a water quality control plan adopted by a regional board as being
suitable for domestic or municipal uses and which
is potable, or water which that is
located in water-bearing strata which ,
is an underground source of drinking water, as defined in Section
146.3 of Title 40 of the Code of Federal Regulations, and
which is does not meet the criteria for
an exempted acquifer aquifer ,
as defined in pursuant to Section 146.4
of Title 40 of the Code of Federal Regulations.
(u) "Qualified person" means a person who has at least five years
of full-time experience in hydrogeology and who is a certified
engineering geologist certified pursuant to Section 7842 of the
Business and Professions Code, a professional geologist registered
pursuant to Section 7850 of the Business and Professions Code, or a
registered civil engineer registered pursuant to Section 6762 of the
Business and Professions Code. "Full-time experience" in hydrogeology
may include a combination of postgraduate studies in hydrogeology
and work experience, with each year of postgraduate work counted as
one year of full-time work experience, except that not more than
three years of postgraduate studies may be counted as full-time
experience.
(v) "Regional board" means the California regional water quality
control board for the region in which the surface impoundment is
located.
(w) "Report" means the hydrogeological assessment report specified
in Section 25208.8.
(x) "Surface impoundment" or "impoundment" means a waste
management unit or part of a waste management unit which
that is a natural topographic depression,
artificial excavation, or diked area formed primarily of earthen
materials, although it may be lined with artificial materials,
which that is designed to hold an
accumulation of liquid hazardous wastes or hazardous wastes
containing free liquids, including, but not limited to, holding,
storage, settling, or aeration pits, evaporation ponds, percolation
ponds, other ponds, and lagoons. Surface impoundment does not include
a landfill, a land farm, a pile, an emergency containment
dike, a tank, or an injection well.
(y) "Tank" means a stationary device, designed to contain an
accumulation of hazardous waste, which that
is constructed primarily of nonearthen materials ,
such as fiberglass, steel, or plastic to provide structural support,
and which has been issued a permit pursuant to
Section 25283 25284 .
(z) "Vadose zone" means the zone between the land surface and the
water table.
(aa) "Waste management unit" means that portion of a facility used
for the discharge of hazardous waste into or onto land, including
all containment and monitoring equipment associated with that portion
of the facility.
SEC. 382. Section 25208.8 of the Health and Safety Code is amended
to read:
25208.8. A person who receives a notice from a regional board
, pursuant to Section 25208.7 ,
or who files an application for an exemption pursuant to Section
25208.5 or 25208.13, shall submit a hydrogeological assessment report
to the regional board. A qualified person shall be responsible for
the preparation of the report and shall certify its completeness and
accuracy. The report shall contain, for each surface impoundment, any
information required by the state board or the regional board, and
all of the following information:
(a) A description of the surface impoundment, including its
physical characteristics, its age, the presence or absence of a
liner, a description of the liner, the liner's compatibility with the
hazardous wastes discharged to the impoundment, and the design
specifications of the impoundment.
(b) A description of the volume and concentration of hazardous
waste constituents placed in the surface impoundment, based on a
representative chemical analysis of the specific hazardous waste type
and accounting for variance in hazardous waste constituents over
time.
(c) A map showing the distances, within the facility, to the
nearest surface water bodies and springs, and the distances, within
one mile from the facility's perimeter, to the nearest surface water
bodies and springs.
(d) Tabular data for each surface water body and spring shown on
the map specified in subdivision (c) which
that indicate its flow and a representative water analysis. The
report shall include an evaluation and characterization of seasonal
changes and, if substantive changes result from season to season, the
tabular data shall reflect these seasonal changes.
(e) A map showing the location of all wells within the facility
and the locations of all wells within one mile of the facility's
perimeter. The report shall include, for each well, a description of
the present use of the well, a representative water analysis from the
well, and, when possible, the water well driller's report or well
log.
(f) An analysis of the vertical and lateral extent of the perched
water and water-bearing strata which that
could be affected by leachate from the surface impoundment, and
the confining beds under and adjacent to the surface impoundment.
This analysis shall include all of the following:
(1) Maps showing contours of equal elevation of the water surface
for perched water, unconfined water, and confined groundwater
required to be analyzed by this subdivision.
(2) An estimate of the groundwater flow, direction of the perched
water, and all water-bearing strata on both the maps and the
subsurface geologic cross sections.
(3) An estimate of the transmissivity, permeability, and storage
coefficient for each perched zone of water and water-bearing strata
identified on the maps specified in paragraph (1).
(4) A determination of the rate of groundwater flow.
(5) A determination of the water quality of each zone of the
water-bearing strata and perched water which
that is identified on the maps specified in paragraph (1) and
which is under, or adjacent to, the facility. This
determination shall be conducted by taking samples either from
upgradient of the surface impoundment or from another location
which that has not been affected by
leakage from the surface impoundment.
(g) An indication as to whether the groundwater is contiguous with
regional bodies of groundwater and the depth measured to the
groundwater, including the depth measured to perched water and
water-bearing strata identified on the maps specified in paragraph
(1) of subdivision (f) .
(h) The following climatological information:
(1) A map showing the contours for the mean annual long-term
precipitation for the surrounding region within 10 miles of the
surface impoundment.
(2) Calculations estimating the maximum 24-hour precipitation and
maximum and minimum annual precipitation at the facility based upon
direct measurement at the facility or upon measured values of
precipitation from a nearby climatologically similar station.
(3) The projected volume and pattern of runoff for any streams
which that , in a 100-year interval,
could effect affect the facility,
including peak stream discharges associated with storm conditions.
(i) A description of the composition of the vadose zone beneath
the surface impoundment. This description shall include a chemical
and hydrogeological characterization of both the consolidated and
unconsolidated rock material underlying the surface impoundment, and
an analysis for pollutants, including those constituents discharged
into the surface impoundment. This description shall also include
soil moisture readings from a representative number of points around
the surface impoundment's perimeter and at the maximum depth of the
surface impoundment. If the regional board determines that the use of
suction type soil sampling devices are is
infeasible due to climate, soil hydraulics, or soil texture,
the regional board may authorize the use of alternative devices. The
report shall arrange all monitoring data in a tabular form so that
the data, the constituents, and the concentrations are readily
discernible.
(j) A measurement of the chemical characteristics of the soil made
by collecting a soil sample upgradient from the impoundment or from
an area which that has not been affected
by seepage from the surface impoundment and which
is in a hydrogeologic environment similar to the surface
impoundment. The measurement shall be analyzed for the same
pollutants analyzed pursuant to subdivision (i).
(k) A description of the existing monitoring being conducted to
detect leachate, including vadose zone monitoring, the number and
positioning of the monitoring wells, the monitoring wells' distances
from the surface impoundment, the monitoring wells' design data, the
monitoring wells' installation, the monitoring development
procedures, the sampling methodology, the sampling frequency, the
chemical constituents analyzed, and the analytical methodology. The
design data of the monitoring wells shall include the monitoring
wells' depth, the monitoring wells' diameters, the monitoring wells'
casing materials, the perforated intervals within the well, the size
of the perforations, the gradation of the filter pack, and the extent
of the wells' annular seals.
(l) Documentation demonstrating that the monitoring system and
methods used at the facility can detect any seepage before the
hazardous waste constituents enter the waters of the state. This
documentation shall include, but is not limited to, substantiation of
each of the following:
(1) The monitor wells are located close enough to the surface
impoundment to identify lateral and vertical migration of any
constituents discharged to the impoundment.
(2) The monitoring wells are not located within the influence of
any adjacent pumping wells which that
might impair their effectiveness.
(3) The monitor wells are only screened in the aquifer to be
monitored.
(4) The chosen casing material does not interfere with, or react
to, the potential contaminants of major concern at the facility.
(5) The casing diameter allows an adequate amount of water to be
removed during sampling and allows full development of the monitor
well.
(6) The annular seal prevents pollutants from migrating down the
monitor well.
(7) The methods of water sample collection require that the sample
is collected after at least five well volumes have been removed from
the well and that the samples are transported and handled in
accordance with the United States Geological Survey's "National
Handbook of Recommended Methods for Water-Data Acquisition," which
provides guidelines for collection and analysis of groundwater
samples for selected unstable constituents. If the wells are
low-yield wells, in that the wells are incapable of yielding three
well volumes during a 24-hour period, the methods of water sample
collection shall insure ensure that a
representative sample is obtained from the well.
(8) The hazardous waste constituents selected for analysis are
specific to the facility, taking into account the chemical
composition of hazardous wastes previously placed in the surface
impoundment. The monitoring data shall be arranged in tabular form so
that the date, the constituents, and the concentrations are readily
discernible.
(9) The frequency of monitoring is sufficient to give timely
warning of leachate so that remedial action can be taken prior to any
adverse changes in the quality of the groundwater.
(10) A written statement from the qualified person preparing the
report indicating whether any constituents have migrated into the
vadose zone, surface water bodies, perched water, or water-bearing
strata.
(11) A written statement from the qualified person preparing the
report indicating whether any migration of leachate into the vadose
zone, surface water bodies, perched water, or water-bearing strata is
likely or not likely to occur within five years, and any evidence
supporting that statement.
SEC. 383. Section 25208.17 of the Health and Safety Code is
amended to read:
25208.17. (a) Except as provided in subdivision (g), a person
specified in subdivision (h) is exempt from filing the report
required by Section 25208.7 if the surface impoundment has been
closed, or will be closed before January 1, 1988, in accordance with
Subchapter 15 (commencing with Section 2510) of Chapter 3 of Title 23
of the California Administrative Code of
Regulations , and it has only been used for the discharge of
economic poisons, as defined in Section 12753 of the Food and
Agricultural Code, and if the person submits an application for
exemption to the regional board on or before February 1, 1987,
pursuant to subdivision (b) and an initial hydrogeological site
assessment report to the regional board on or before July 1, 1987. A
qualified person shall be responsible for the preparation of the
hydrogeological site assessment report and shall certify its
completeness and accuracy.
(b) A person seeking exemption from Section 25208.7 shall file an
application for exemption with the regional board on or before
February 1, 1987, together with an initial filing fee of three
thousand dollars ($3,000). The application shall include the names of
persons who own or operate each surface impoundment for which the
exemption is sought and the location of each surface impoundment for
which an exemption is sought.
(c) Notwithstanding Section 25208.3, each person filing an
application for exemption pursuant to subdivision (b) shall pay only
the application fee provided in subdivision (b) and any additional
fees assessed by the state board to recover the actual costs incurred
by the state board and regional boards to administer this section.
The person is not liable for fees assessed pursuant to Section
25208.3, except that, if the person is required to comply with
Section 25208.7 or 25208.6, the fees assessed under this section
shall include the costs of the regional board and state board to
administer those sections.
(d) If a person fails to pay the initial filing fee by February 1,
1987, or fails to pay any subsequent additional assessment pursuant
to subdivision (c), the person shall be liable for a penalty of not
more than 100 percent of the fees due and unpaid, but in an amount
sufficient to defer deter future
noncompliance, as based upon that person's past history of
noncompliance and ability to pay, and upon additional expenses
incurred by the regional board and state board as a result of this
noncompliance.
(e) Notwithstanding Section 25208.3, after the regional board has
made a determination pursuant to subdivision (g), a final payment or
refund of fees specified in subdivision (c) shall be made so that the
total fees paid by the person shall be sufficient to cover the
actual costs of the state board and the regional board in
administering this section.
(f) The hydrogeological site assessment report shall contain
, for each surface impoundment, all of the following
information:
(1) A description of the surface impoundment, including its
physical characteristics, its age, the presence or absence of a
liner, a description of the liner, the liner's compatibility with the
hazardous wastes discharged to the impoundment, and the design
specifications of the impoundment.
(2) A description of the volume and concentration of hazardous
waste constituents placed in the surface impoundment, based on a
representative chemical analysis of the specific hazardous waste type
and accounting for variance in hazardous waste constituents over
time.
(3) An analysis of surface and groundwater on, under, and within
one mile of the surface impoundment to provide a reliable indication
of whether or not hazardous constituents or leachate is leaking or
has been released from the surface impoundment.
(4) A chemical characterization of soil-pore liquid in areas
which that are likely to be affected by
hazardous constituents or leachate released from the surface
impoundment, as compared to geologically similar areas near the
surface impoundment that have not been affected by releases from the
surface impoundment. This characterization shall include both of
the following :
(A) A description of the composition of the vadose zone beneath
the surface impoundment. This description shall include a chemical
and hydrogeological characterization of both the consolidated and
unconsolidated geologic materials underlying the surface impoundment,
and an analysis for pollutants, including those constituents
discharged into the surface impoundment. This description shall also
include soil moisture readings from a representative number of points
around the surface impoundment's perimeter and at the maximum depth
of the surface impoundment. If the regional board determines that the
use of suction type soil sampling devices are
is infeasible due to climate, soil hydraulics, or soil
texture, the regional board may authorize the use of alternative
devices. The initial report shall contain all data in tabular form so
that data, constituents, and concentrations are readily discernible.
(B) A determination of the chemical characteristics of the soil
made by collecting a soil sample upgradient from the impoundment or
from an area that has not been affected by seepage from the surface
impoundment and that is in a hydrogeologic environment similar to the
surface impoundment. The determinations shall be analyzed for the
same pollutants analyzed pursuant to subparagraph (A).
(5) A description of current groundwater and vadose zone
monitoring being conducted at the surface impoundment for leak
detection, including detailed plans and equipment specifications and
a technical report that provides the rationale for the spatial
distribution of groundwater and vadose zone monitoring points for the
design of monitoring facilities, and for the selection of monitoring
equipment. This description shall include:
(A) A map showing the location of monitoring facilities with
respect to each surface impoundment.
(B) Drawings and design data showing construction details of
groundwater monitoring facilities, including all of the following:
(i) Casing and hole diameter.
(ii) Casing materials.
(iii) Depth of each monitoring well.
(iv) Size and position of perforations.
(v) Method for joining sections of casing.
(vi) Nature and gradation of filter material.
(vii) Depth and composition of annular seals.
(viii) Method and length of time of development.
(ix) Method of drilling.
(C) Specifications, drawings, and data for the location and
installation of vadose zone monitoring equipment.
(D) Discussion of sampling frequency and methods and analytical
protocols used.
(E) Justification of indicator parameters used.
(6) Documentation demonstrating that the monitoring system and
methods used at the facility can detect any seepage before the
hazardous waste constituents enter the waters of the state. This
documentation shall include, but is not limited to, substantiation of
each of the following:
(A) The monitoring facilities are located close enough to the
surface impoundment to identify lateral and vertical migration of any
constituents discharged to the impoundment.
(B) The groundwater monitoring wells are not located within the
influence of any adjacent pumping water wells that might impair their
effectiveness.
(C) The groundwater monitoring wells are screened only in the zone
of groundwater to be monitored.
(D) The casing material in the groundwater monitoring wells does
not interfere with, or react to, the potential contaminants of major
concern at the impoundment.
(E) The casing diameter allows an adequate amount of water to be
removed during sampling and allows full development of each well.
(F) The annular seal of each groundwater monitoring well prevents
pollutants from migrating down the well.
(G) The water samples are collected after at least five well
volumes have been removed from the well and that the samples are
collected, preserved, transported, handled, analyzed, and reported in
accordance with guidelines for collection and analysis of
groundwater samples that provide for preservation of unstable
indicator parameters and prevent physical or chemical changes that
could interfere with detection of indicator parameters. If the wells
are low-yield wells, in that the wells are incapable of yielding
three well volumes during a 24-hour period, the methods of water
sample collection shall insure ensure
that a representative sample is obtained from the well.
(H) The hazardous waste constituents selected for analysis are
specific to the facility, taking into account the chemical
composition of hazardous wastes previously placed in the surface
impoundment.
(I) The frequency of monitoring is sufficient to give timely
warning of any leakage or release of hazardous constituents or
leachate so that remedial action can be taken prior to any adverse
changes in the quality of the groundwater.
(7) A written statement from the qualified person preparing the
report indicating whether any hazardous constituents or leachate has
migrated into the vadose zone, water-bearing strata, or waters of the
state in concentrations that pollute or threaten to pollute the
waters of the state.
(8) A written statement from the qualified person preparing the
report indicating whether any migration of hazardous constituents or
leachate into the vadose zone, water-bearing strata, or waters of the
state is likely or not likely to occur within five years, and any
evidence supporting that statement.
(g) The regional board shall complete a thorough analysis of each
hydrogeological site assessment report submitted pursuant to
subdivision (b) within one year after submittal. If the regional
board , determines that a hazardous waste
constituent from the surface impoundment is polluting or threatening
to pollute, as defined in subdivision (l) of Section 13050 of the
Water Code, both of the following shall occur:
(1) The regional board shall issue a cease and desist order or a
cleanup and abatement order that prohibits any discharge into the
surface impoundment and that requires compliance
with Section 25208.6.
(2) The person shall file a report pursuant to Section 25208.7
within nine months after the regional board makes the determination
pursuant to subdivision (g). In making any determination under this
subdivision, the regional board shall state the factual basis for the
determinations.
(h) For purposes of this section, person "
person" means only the following:
(1) Pest control operators and businesses licensed pursuant to
Section 11701 of the Food and Agricultural Code.
(2) Local governmental vector control agencies who have entered
into a cooperative agreement with the department pursuant to Section
116180.
SEC. 384. Section 25215.4 of the Health and Safety Code is amended
to read:
25215.4. The department shall, within 30 days after the
effective date of the act enacting this section June
27, 1988 , notify all manufacturers of lead acid batteries sold
by dealers to consumers in this state of the requirements set forth
in Section Sections 25215.2, 25215.3,
and 25215.5.
SEC. 385. Section 25283.1 of the Health and Safety Code is amended
to read:
25283.1. This chapter does not prohibit any county from entering
into a joint powers agreement with other counties for the purposes of
enforcing this chapter .
SEC. 386. Section 25370 of the Health and Safety Code is amended
to read:
25370. "Board," as used in this article, means the State
Board of Control California Victim Compensation and
Government Claims Board .
SEC. 387. Section 33080.7 of the Health and Safety Code is amended
to read:
33080.7. For puposes purposes of
compliance with subdivision (c) of Section 33080.1 and in addition to
the requirements of Section 33080.4, the description of the agency's
activities shall identify the amount of excess surplus, as defined
in Section 33334.10, which has accumulated in the agency's Low and
Moderate Income Housing Fund. Of the total excess surplus, the
description shall also identify the amount that has accrued to the
Low and Moderate Income Housing Fund during each fiscal year. This
component of the annual report shall also include any plan required
to be reported by subdivision (c) of Section 33334.10.
SEC. 388. Section 33320.4 of the Health and Safety Code is amended
to read:
33320.4. (a) The unblighted territory which
that is described in paragraphs (1) and (2) is contiguous
to an existing redevelopment project area within the City of Sanger,
California. If all of that unblighted territroy
territory is annexed to the City of Sanger, the planning
agency within the City of Sanger may, with the approval of the
redevelopment agency, include that territory in a proposed project
area, or the redevelopment
agency may amend the redevelopment plan to include that territory
within an existing contiguous project area, if the planning agency or
the redevelopment agency, as the case may be, determines that the
inclusion of that territory is necessary for effective redevelopment
of the project area. If either, or both, of those determinations are
made, the territory shall be conclusively presumed necessary for
effective redevelopment within the proposed or existing project area.
Any actions taken by the planning agency or redevelopment agency in
accordance with this section shall comply with all of the other
requirements of this part.
(1) All that portion of Fresno County, California, within the City
of Sanger in Sections 26 and 25, Township 14 South, Range 22 East,
Mount Diablo Base and Meridian, according to the United States
Government Township Plat thereof, described as follows:
Beginning at the southwest corner of the northwest quarter of
Section 26; thence along the existing city limits line of Sanger as
follows, N. 89 47' E., a distance of 2638.53 feet to the southeast
corner of the northwest quarter of Section 26; thence N. 0 03' W.,
along the west line of the northeast quarter of that Section, a
distance of 345.52 feet to the northerly right-of-way line of the
Garfield Ditch; thence northeasterly along northerly right-of-way
line, a distance of 913.00 feet, a little more or less, to a point on
the westerly right-of-way line of the Centerville and Kingsburg
Canal; thence along the easterly right-of-way line of the Centerville
and Kingsburg Canal as follows: N. 09 52'28″ E., 708.50 feet;
N. 09 26' 40″ E., 297.07 feet; N. 07 14 '16″ E., 549.23
feet; and N. 09 15'10″ E., a distance of 539.47 feet to a point
on a line 30. 00 feet south of the north line of the northeast
quarter of Section 26; thence leaving the westerly right-of-way line,
N.89 43' E., along that line 30.00 feet south of and parallel with
the north line of the northeast quarter of Section 26 and the
easterly prolongation thereof, a distance of 1860.41 feet; thence S.
0 14'N E., 1151.07 feet; thence S. 73 01' W., 357.58 feet; thence S.
55 46' W., 985.00 feet; thence S. 40 46' W., 218.00 feet; thence S.
24 31' W., 364. 00 feet; thence N. 75 44'N W., 312.87 feet to a point
on the west line of the southeast quarter of the northeast quarter
of Section 26; thence S. 0 17'12″ E., along said west line,
413.31 feet to the southwest corner thereof; thence S. 0 16'28″
E., along the west line of the northeast quarter of the southeast
quarter of Section 26, 1332.38 feet to the southwest corner thereof;
thence leaving the existing city limits line of Sanger, N. 89 06'
N46″ W., along the north line of the south half of the
southeast quarter of Section 26, 592.10 feet to the northeast corner
of that parcel of land conveyed to Archie Mekealian and Verlene
Mekealian by deed dated February 23, 1944, and recorded in Book 2157
at Page 119, Fresno County records, with the corner being 742.00 feet
east of the northwest corner of the south half of the southeast
quarter of Secton 26; thence S. 4 36'52″ W., along the east
line to the parcel, 1330.31 feet to the southeast corner thereof and
to a point on the south line of the southeast quarter of Section 26;
thence N. 88 44'19″ W., along the south line, 619.00 feet, more
or less to the southwest corner of the southeast quarter of Section
26; thence S. 89 51'20″ W., along the south line of the
southwest quarter of Section 26, 2639.90 feet to the southwest corner
thereof; thence north, along the west line of the southwest quarter
of Section 26, 2643.60 feet to the northwest corner thereof and the
point of beginning. This territory contains a little more or less
than 316.58 acres.
(2) All that portion of Fresno County, California, within the City
of Sanger, in the northeast quarter of Section 15 in Township 14
South, Range 22 East, Mount Diablo Base and Meridian, according to
the United States Government Township Plat thereof, described as
follows:
Commencing at the northeast corner of the northeast quarter of the
northeast quarter of Section 15, thence southerly along the east
line of the northeast quarter of Section 15 992.05 feet to the
existing city limits line of Sanger, then continuing south along the
east line of the northeast quarter of Section 15 475.01 feet, that
being contiguous with the existing city limit of Sanger, for a total
of 1467.06 feet, thence westerly, along a line 1180.15 feet 15,
880.90 feet, more or less to the easterly right-of-way line of the
Southern Pacific Railroad Company's right-of-way; thence leaving the
existing city limits line of Sanger, northwesterly, along the
easterly right-of-way line of the railroad as the same is shown on
the Map of Mountain View Addition to Sanger, recorded February 18,
1891, in Book 4 of Plats, Page 66, Fresno County Records, to the
point of intersection with the north line of the northeast quarter of
Section 15; thence easterly along the north line, 2191.00 feet to
the point of commencement. This territory contains a little more or
less than 50.13 acres.
(b) The conclusive presumption that the unblighted territory
described in subdivision (a) is necessary for effective redevelopment
applies only to territory within the City of Sanger.
SEC. 389. Section 33333.6 of the Health and Safety Code is amended
to read:
33333.6. The limitations of this section shall apply to every
redevelopment plan adopted on or before December 31, 1993.
(a) The effectiveness of every redevelopment plan to which this
section applies shall terminate at a date that shall not exceed 40
years from the adoption of the redevelopment plan or January 1, 2009,
whichever is later. After the time limit on the effectiveness of the
redevelopment plan, the agency shall have no authority to act
pursuant to the redevelopment plan except to pay previously incurred
indebtedness, to comply with Section 33333.8 and to enforce existing
covenants, contracts, or other obligations.
(b) Except as provided in subdivisions (f) and (g), a
redevelopment agency may not pay indebtedness or receive property
taxes pursuant to Section 33670 after 10 years from the termination
of the effectiveness of the redevelopment plan pursuant to
subdivision (b) (a) .
(c) (1) If plans that had different dates of adoption were merged
on or before December 31, 1993, the time limitations required by this
section shall be counted individually for each merged plan from the
date of the adoption of each plan. If an amendment to a redevelopment
plan added territory to the project area on or before December 31,
1993, the time limitations required by this section shall commence,
with respect to the redevelopment plan, from the date of the adoption
of the redevelopment plan, and, with respect to the added territory,
from the date of the adoption of the amendment.
(2) If plans that had different dates of adoption are merged on or
after January 1, 1994, the time limitations required by this section
shall be counted individually for each merged plan from the date of
the adoption of each plan.
(d) (1) Unless a redevelopment plan adopted prior to January 1,
1994, contains all of the limitations required by this section and
each of these limitations does not exceed the applicable time limits
established by this section, the legislative body, acting by
ordinance on or before December 31, 1994, shall amend every
redevelopment plan adopted prior to January 1, 1994, either to amend
an existing time limit that exceeds the applicable time limit
established by this section or to establish time limits that do not
exceed the provisions of subdivision (b) or (c).
(2) The limitations established in the ordinance adopted pursuant
to this section shall apply to the redevelopment plan as if the
redevelopment plan had been amended to include those limitations.
However, in adopting the ordinance required by this section, neither
the legislative body nor the agency is required to comply with
Article 12 (commencing with Section 33450) or any other provision of
this part relating to the amendment of redevelopment plans.
(e) (1) If a redevelopment plan adopted prior to January 1, 1994,
contains one or more limitations required by this section, and the
limitation does not exceed the applicable time limit required by this
section, this section shall not be construed to require an amendment
of this limitation.
(2) (A) A redevelopment plan adopted prior to January 1, 1994,
that has a limitation shorter than the terms provided in this section
may be amended by a legislative body by adoption of an ordinance on
or after January 1, 1999, but on or before December 31, 1999, to
extend the limitation, provided that the plan as so amended does not
exceed the terms provided in this section. In adopting an ordinance
pursuant to this subparagraph, neither the legislative body nor the
agency is required to comply with Section 33354.6, Article 12
(commencing with Section 33450), or any other provision of this part
relating to the amendment of redevelopment plans.
(B) On or after January 1, 2002, a redevelopment plan may be
amended by a legislative body by adoption of an ordinance to
eliminate the time limit on the establishment of loans, advances, and
indebtedness required by this section prior to January 1, 2002. In
adopting an ordinance pursuant to this subparagraph, neither the
legislative body nor the agency is required to comply with Section
33354.6, Article 12 (commencing with Section 33450), or any other
provision of this part relating to the amendment of redevelopment
plans, except that the agency shall make the payment to affected
taxing entities required by Section 33607.7.
(C) When an agency is required to make a payment pursuant to
Section 33681.9, the legislative body may amend the redevelopment
plan to extend the time limits required pursuant to subdivisions (a)
and (b) by one year by adoption of an ordinance. In adopting an
ordinance pursuant to this subparagraph, neither the legislative body
nor the agency is required to comply with Section 33354.6
or , Article 12 (commencing with Section 33450)
, or any other provision of this part relating to the
amendment of redevelopment plans, including, but not limited to, the
requirement to make the payment to affected taxing entities required
by Section 33607.7.
(D) When an agency is required pursuant to Section 33681.12 to
make a payment to the county auditor for deposit in the county's
Educational Revenue Augmentation Fund created pursuant to Article 3
(commencing with Section 97) of Chapter 6 of Part 0.5 of Division 1
of the Revenue and Taxation Code, the legislative body may amend the
redevelopment plan to extend the time limits required pursuant to
subdivisions (a) and (b) by the following:
(i) One year for each year in which a payment is made, if the time
limit for the effectiveness of the redevelopment plan established
pursuant to subdivision (a) is 10 years or less from the last day of
the fiscal year in which a payment is made.
(ii) One year for each year in which such a
payment is made, if both of the following apply:
(I) The time limit for the effectiveness of the redevelopment plan
established pursuant to subdivision (a) is more than 10 years but
less than 20 years from the last day of the fiscal year in which a
payment is made.
(II) The legislative body determines in the ordinance adopting the
amendment that, with respect to the project, the following:
(IIa) The
agency is in compliance with the requirements of
Section 33334.2 or 33334.6, as applicable .
(IIb) The agency
, has adopted an implementation plan in
accordance with the requirements of Section 33490 .
(IIc) The agency
, is in compliance with subdivisions (a) and (b)
of Section 33413, to the extent applicable .
( IId) The agency
, and is not subject to sanctions pursuant to
subdivision (e) of Section 33334.12 for failure to expend, encumber,
or disburse an excess surplus.
(iii) This subparagraph shall not apply to any redevelopment plan
if the time limit for the effectiveness of the redevelopment plan
established pursuant to subdivision (a) is more than 20 years after
the last day of the fiscal year in which such a
payment is made.
(3) (A) The legislative body by ordinance may adopt the amendments
provided for under this paragraph following a public hearing. Notice
of the public hearing shall be mailed to the governing body of each
affected taxing entity at least 30 days prior to the public hearing
and published in a newspaper of general circulation in the community
at least once, not less than 10 days prior to the date of the public
hearing. The ordinance shall contain a finding of the legislative
body that funds used to make a payment to the county's Educational
Revenue Augmentation Fund pursuant to Section 33681.12 would
otherwise have been used to pay the costs of projects and activities
necessary to carry out the goals and objectives of the redevelopment
plan. In adopting an ordinance pursuant to this paragraph, neither
the legislative body nor the agency is required to comply with
Section 33354.6, Article 12 (commencing with Section 33450), or any
other provision of this part relating to the amendment of
redevelopment plans.
(B) The time limit on the establishment of loans, advances, and
indebtedness shall be deemed suspended and of no force or effect but
only for the purpose of issuing bonds or other indebtedness the
proceeds of which are used to make the payments required by Section
33681.12 if the following apply:
(i) The time limit on the establishment of loans, advances, and
indebtedness required by this section prior to January 1, 2002, has
expired and has not been eliminated pursuant to subparagraph (B).
(ii) The agency is required to make a payment pursuant to Section
33681.12.
(iii) The agency determines that in order to make the payment
required by Section 33681.12, it is necessary to issue bonds or incur
other indebtedness.
(iv) The proceeds of the bonds issued or indebtedness incurred are
used solely for the purpose of making the payments required by
Section 33681.12 and related costs.
The suspension of the time limit on the establishment of loans,
advances, and indebtedness pursuant to this subparagraph shall not
require the agency to make the payment to affected taxing entities
required by Section 33607.7.
(4) (A) A time limit on the establishing of loans, advances, and
indebtedness to be paid with the proceeds of property taxes received
pursuant to Section 33670 to finance in whole or in part the
redevelopment project shall not prevent an agency from incurring debt
to be paid from the agency's Low and Moderate Income Housing Fund or
establishing more debt in order to fulfill the agency's affordable
housing obligations, as defined in paragraph (1) of subdivision (a)
of Section 33333.8.
(B) A redevelopment plan may be amended by a legislative body to
provide that there shall be no time limit on the establishment of
loans, advances, and indebtedness paid from the agency's Low and
Moderate Income Housing Fund or establishing more debt in order to
fulfill the agency's affordable housing obligations, as defined in
paragraph (1) of subdivision (a) of Section 33333.8. In adopting
such an ordinance pursuant to this
subparagraph , neither the legislative body nor the agency is
required to comply with Section 33345.6, Article 12 (commencing with
Section 33450), or any other provision of this part relating to the
amendment of redevelopment plans, and the agency shall not make the
payment to affected taxing entities required by Section 33607.7.
(f) The limitations established in the ordinance adopted pursuant
to this section shall not be applied to limit the allocation of taxes
to an agency to the extent required to comply with Section 33333.8.
In the event of a conflict between these limitations and the
obligations under Section 33333.8, the limitations established in the
ordinance shall be suspended pursuant to Section 33333.8.
(g) (1)This section does not effect the validity of any bond,
indebtedness, or other obligation, including any mitigation agreement
entered into pursuant to Section 33401, authorized by the
legislative body, or the agency pursuant to this part, prior to
January 1, 1994.
(2) This section does not affect the right of an agency to receive
property taxes, pursuant to Section 33670, to pay the bond,
indebtedness, or other obligation.
(3) This section does not affect the right of an agency to receive
property taxes pursuant to Section 33670 to pay refunding bonds
issued to refinance, refund, or restructure indebtedness authorized
prior to January 1, 1994, if the last maturity date of these
refunding bonds is not later than the last maturity date of the
refunded indebtedness and the sum of the total net interest cost to
maturity on the refunding bonds plus the principal amount of the
refunding bonds is less than the sum of the total net interest cost
to maturity on the refunded indebtedness plus the principal amount of
the refunded indebtedness.
(h) A redevelopment agency shall not pay indebtedness or receive
property taxes pursuant to Section 33670, with respect to a
redevelopment plan adopted prior to January 1, 1994, after the date
identified in subdivision (b) or the date identified in the
redevelopment plan, whichever is earlier, except as provided in
paragraph (2) of subdivision (e), in subdivision (g), or in Section
33333.8.
(i) The Legislature finds and declares that the amendments made to
this section by the act that adds this subdivision
Chapter 942 of the Statutes of 1993 are intended
to add limitations to the law on and after January 1, 1994, and are
not intended to change or express legislative intent with respect to
the law prior to that date. It is not the intent of the Legislature
to affect the merits of any litigation regarding the ability of a
redevelopment agency to sell bonds for a term that exceeds the limit
of a redevelopment plan pursuant to law that existed prior to January
1, 1994.
(j) If a redevelopment plan is amended to add territory, the
amendment shall contain the time limits required by Section 33333.2.
SEC. 390. Section 33334.2 of the Health and Safety Code is amended
to read:
33334.2. (a) Not less than 20 percent of all taxes that are
allocated to the agency pursuant to Section 33670 shall be used by
the agency for the purposes of increasing, improving, and preserving
the community's supply of low- and moderate-income housing available
at affordable housing cost, as defined by Section 50052.5, to persons
and families of low or moderate income, as defined in Section 50093,
lower income households, as defined by Section 50079.5, very low
income households, as defined in Section 50105, and extremely low
income households, as defined by Section 50106, that is occupied by
these persons and families, unless one of the following findings is
made annually by resolution:
(1) (A) That no need exists in the community to improve, increase,
or preserve the supply of low- and moderate-income housing,
including housing for very low income households in a manner that
would benefit the project area and that this finding is consistent
with the housing element of the community's general plan required by
Article 10.6 (commencing with Section 65580) of Chapter 3 of Division
1 of Title 7 of the Government Code, including its share of the
regional housing needs of very low income households and persons and
families of low or moderate income.
(B) This finding shall only be made if the housing element of the
community's general plan demonstrates that the community does not
have a need to improve, increase, or preserve the supply of low- and
moderate-income housing available at affordable housing cost to
persons and families of low or moderate income and to very low income
households. This finding shall only be made if it is consistent with
the planning agency's annual report to the legislative body on
implementation of the housing element required by subdivision (b) of
Section 65400 of the Government Code. No agency of a charter city
shall make this finding unless the planning agency submits the report
pursuant to subdivision (b) of Section 65400 of the Government Code.
This finding shall not take effect until the agency has complied
with subdivision (b) of this section.
(2) (A) That some stated percentage less than 20 percent of the
taxes that are allocated to the agency pursuant to Section 33670 is
sufficient to meet the housing needs of the community, including its
share of the regional housing needs of persons and families of low-
or moderate-income and very low income households, and that this
finding is consistent with the housing element of the community's
general plan required by Article 10.6 (commencing with Section 65580)
of Chapter 3 of Division 1 of Title 7 of the Government Code.
(B) This finding shall only be made if the housing element of the
community's general plan demonstrates that a percentage of less than
20 percent will be sufficient to meet the community's need to
improve, increase, or preserve the supply of low- and moderate-income
housing available at affordable housing cost to persons and families
of low or moderate income and to very low income households. This
finding shall only be made if it is consistent with the planning
agency's annual report to the legislative body on implementation of
the housing element required by subdivision (b) of Section 65400 of
the Government Code. No agency of a charter city shall make this
finding unless the planning agency submits the report pursuant to
subdivision (b) of Section 65400 of the Government Code. This finding
shall not take effect until the agency has complied with subdivision
(b) of this section.
(C) For purposes of making the findings specified in this
paragraph and paragraph (1), the housing element of the general plan
of a city, county, or city and county shall be current, and shall
have been determined by the department pursuant to Section 65585 to
be in substantial compliance with Article 10.6 (commencing with
Section 65580) of Chapter 3 of Division 1 of Title 7 of the
Government Code.
(3) (A) That the community is making a substantial effort to meet
its existing and projected housing needs, including its share of the
regional housing needs, with respect to persons and families of low
and moderate income, particularly very low income households, as
identified in the housing element of the community's general plan
required by Article 10.6 (commencing with Section 65580) of Chapter 3
of Division 1 of Title 7 of the Government Code, and that this
effort, consisting of direct financial contributions of local funds
used to increase and improve the supply of housing affordable to, and
occupied by, persons and families of low or moderate income and very
low income households is equivalent in impact to the funds otherwise
required to be set aside pursuant to this section. In addition to
any other local funds, these direct financial contributions may
include federal or state grants paid directly to a community and
which that the community has the
discretion of using for the purposes for which moneys in the Low and
Moderate Income Housing Fund may be used. The legislative body shall
consider the need that can be reasonably foreseen because of
displacement of persons and families of low or moderate income or
very low income households from within, or adjacent to, the project
area, because of increased employment opportunities, or because of
any other direct or indirect result of implementation of the
redevelopment plan. No finding under this subdivision may be made
until the community has provided or ensured the availability of
replacement dwelling units as defined in Section 33411.2 and until it
has complied with Article 9 (commencing with Section 33410).
(B) In making the determination that other financial contributions
are equivalent in impact pursuant to this subdivision, the agency
shall include only those financial contributions that are directly
related to programs or activities authorized under subdivision (e).
(C) The authority for making the finding specified in this
paragraph shall expire on June 30, 1993, except that the expiration
shall not be deemed to impair contractual obligations to bondholders
or private entities incurred prior to May 1, 1991, and made in
reliance on the provisions of this paragraph. Agencies that make this
finding after June 30, 1993, shall show evidence that the agency
entered into the specific contractual obligation with the specific
intention of making a finding under this paragraph in order to
provide sufficient revenues to pay off the indebtedness.
(b) Within 10 days following the making of a finding under either
paragraph (1) or (2) of subdivision (a), the agency shall send the
Department of Housing and Community Development a copy of the
finding, including the factual information supporting the finding and
other factual information in the housing element that demonstrates
that either (1) the community does not need to increase, improve, or
preserve the supply of housing for low- and moderate-income
households, including very low income households, or (2) a percentage
less than 20 percent will be sufficient to meet the community's need
to improve, increase, and preserve the supply of housing for low-
and moderate-income households, including very low income households.
Within 10 days following the making of a finding under paragraph (3)
of subdivision (a), the agency shall send the Department of Housing
and Community Development a copy of the finding, including the
factual information supporting the finding that the community is
making a substantial effort to meet its existing and projected
housing needs. Agencies that make this finding after June 30, 1993,
shall also submit evidence to the department of its contractual
obligations with bondholders or private entities incurred prior to
May 1, 1991, and made in reliance on this finding.
(c) In any litigation to challenge or attack a finding made under
paragraph (1), (2), or (3) of subdivision (a), the burden shall be
upon the agency to establish that the finding is supported by
substantial evidence in light of the entire record before the agency.
If an agency is determined by a court to have knowingly
misrepresented any material facts regarding the community's share of
its regional housing need for low- and moderate-income housing,
including very low income households, or the community's production
record in meeting its share
of the regional housing need pursuant to the report required by
subdivision (b) of Section 65400 of the Government Code, the agency
shall be liable for all court costs and plaintiff's attorney's fees,
and shall be required to allocate not less than 25 percent of the
agency's tax increment revenues to its Low and Moderate Income
Housing Fund in each year thereafter.
(d) Nothing in this section shall be construed as relieving any
other public entity or entity with the power of eminent domain of any
legal obligations for replacement or relocation housing arising out
of its activities.
(e) In carrying out the purposes of this section, the agency may
exercise any or all of its powers for the construction,
rehabilitation, or preservation of affordable housing for extremely
low, very low, low- and moderate-income persons or families,
including the following:
(1) Acquire real property or building sites subject to Section
33334.16.
(2) (A) Improve real property or building
sites with onsite or offsite improvements, but only if both
(A) (i) the improvements are part of the new
construction or rehabilitation of affordable housing units for low-
or moderate-income persons that are directly benefited by the
improvements, and are a reasonable and fundamental component of the
housing units, and (B) (ii) the agency
requires that the units remain available at affordable housing cost
to, and occupied by, persons and families of extremely low, very low,
low, or moderate income for the same time period and in the same
manner as provided in subdivision (c) and paragraph (2) of
subdivision (f) of Section 33334.3.
(B) If the newly constructed or
rehabilitated housing units are part of a larger project and the
agency improves or pays for onsite or offsite improvements pursuant
to the authority in this subdivision, the agency shall pay only a
portion of the total cost of the onsite or offsite improvement. The
maximum percentage of the total cost of the improvement paid for by
the agency shall be determined by dividing the number of housing
units that are affordable to low- or moderate-income persons by the
total number of housing units, if the project is a housing project,
or by dividing the cost of the affordable housing units by the total
cost of the project, if the project is not a housing project.
(3) Donate real property to private or public persons or entities.
(4) Finance insurance premiums pursuant to Section 33136.
(5) Construct buildings or structures.
(6) Acquire buildings or structures.
(7) Rehabilitate buildings or structures.
(8) Provide subsidies to, or for the benefit of, extremely low
income households, as defined by Section 50106, very low income
households, as defined by Section 50105, lower income households, as
defined by Section 50079.5, or persons and families of low or
moderate income, as defined by Section 50093, to the extent those
households cannot obtain housing at affordable costs on the open
market. Housing units available on the open market are those units
developed without direct government subsidies.
(9) Develop plans, pay principal and interest on bonds, loans,
advances, or other indebtedness, or pay financing or carrying
charges.
(10) Maintain the community's supply of mobilehomes.
(11) Preserve the availability to lower income households of
affordable housing units in housing developments that are assisted or
subsidized by public entities and that are threatened with imminent
conversion to market rates.
(f) The agency may use these funds to meet, in whole or in part,
the replacement housing provisions in Section 33413. However, nothing
in this section shall be construed as limiting in any way the
requirements of that section.
(g) (1) The agency may use these funds inside or outside the
project area. The agency may only use these funds outside the project
area upon a resolution of the agency and the legislative body that
the use will be of benefit to the project. The determination by the
agency and the legislative body shall be final and conclusive as to
the issue of benefit to the project area. The Legislature finds and
declares that the provision of replacement housing pursuant to
Section 33413 is always of benefit to a project. Unless the
legislative body finds, before the redevelopment plan is adopted,
that the provision of low- and moderate-income housing outside the
project area will be of benefit to the project, the project area
shall include property suitable for low- and moderate-income housing.
(2) (A) The Contra Costa County Redevelopment Agency may use these
funds anywhere within the unincorporated territory, or within the
incorporated limits of the City of Walnut Creek on sites contiguous
to the Pleasant Hill BART Station Area Redevelopment Project area.
The agency may only use these funds outside the project area upon a
resolution of the agency and board of supervisors determining that
the use will be of benefit to the project area. In addition, the
agency may use these funds within the incorporated limits of the City
of Walnut Creek only if the agency and the board of supervisors find
all of the following:
(i) Both the County of Contra Costa and the City of Walnut Creek
have adopted and are implementing complete and current housing
elements of their general plans that the Department of Housing and
Community Development has determined to be in compliance with the
requirements of Article 10.6 (commencing with Section 65580) of
Chapter 3 of Division 1 of Title 7 of the Government Code.
(ii) The development to be funded shall not result in any
residential displacement from the site where the development is to be
built.
(iii) The development to be funded shall not be constructed in an
area that currently has more than 50 percent of its population
comprised of racial minorities or low-income families.
(iv) The development to be funded shall allow construction of
affordable housing closer to a rapid transit station than could be
constructed in the unincorporated territory outside the Pleasant Hill
BART Station Area Redevelopment Project.
(B) If the agency uses these funds within the incorporated limits
of the City of Walnut Creek, all of the following requirements shall
apply:
(i) The funds shall be used only for the acquisition of land for,
and the design and construction of, the development of housing
containing units affordable to, and occupied by, low- and
moderate-income persons.
(ii) If less than all the units in the development are affordable
to, and occupied by, low- or moderate-income persons, any agency
assistance shall not exceed the amount needed to make the housing
affordable to, and occupied by, low- or moderate-income persons.
(iii) The units in the development that are affordable to, and
occupied by, low- or moderate-income persons shall remain affordable
for a period of at least 55 years.
(iv) The agency and the City of Walnut Creek shall determine, if
applicable, whether Article XXXIV of the California Constitution
permits the development.
(h) The Legislature finds and declares that expenditures or
obligations incurred by the agency pursuant to this section shall
constitute an indebtedness of the project.
(i) The requirements of this This
section shall only apply to taxes allocated to a
redevelopment agency for which a final redevelopment plan is adopted
on or after January 1, 1977, or for any area that is added to a
project by an amendment to a redevelopment plan, which amendment is
adopted on or after the effective date of this section. An agency
may, by resolution, elect to make all or part of the requirements of
this section applicable to any redevelopment project for which a
redevelopment plan was adopted prior to January 1, 1977, subject to
any indebtedness incurred prior to the election.
(j) (1) (A) An action to compel compliance with the requirement of
Section 33334.3 to deposit not less than 20 percent of all taxes
that are allocated to the agency pursuant to Section 33670 in
a the Low and Moderate Income Housing
Fund shall be commenced within 10 years of the alleged violation. A
cause of action for a violation accrues on the last day of the fiscal
year in which the funds were required to be deposited in the Low and
Moderate Income Housing Fund.
(B) An action to compel compliance with the requirement of this
section or Section 33334.6 that money deposited in the Low and
Moderate Income Housing Fund be used by the agency for purposes of
increasing, improving, and preserving the community's supply of low-
and moderate-income housing available at affordable housing cost
shall be commenced within 10 years of the alleged violation. A cause
of action for a violation accrues on the date of the actual
expenditure of the funds.
(C) An agency found to have deposited less into the Low and
Moderate Income Housing Fund than mandated by Section 33334.3 or to
have spent money from the Low and Moderate Income Housing Fund for
purposes other than increasing, improving, and preserving the
community's supply of low- and moderate-income housing, as mandated,
by this section or Section 33334.6 shall repay the funds with
interest in one lump sum pursuant to Section 970.4 or 970.5 of the
Government Code or may do either of the following:
(i) Petition the court under Section 970.6 for repayment in
installments.
(ii) Repay the portion of the judgment due to the Low and Moderate
Income Housing Fund in equal installments over a period of five
years following the judgment.
(2) Repayment shall not be made from the funds required to be set
aside or used for low- and moderate-income housing pursuant to this
section.
(3) Notwithstanding clauses (i) and (ii) of subparagraph (C) of
paragraph (1), all costs, including reasonable attorney
attorney's fees if included in the judgment, are
due and shall be paid upon entry of judgment or order.
(4) Except as otherwise provided in this subdivision, Chapter 2
(commencing with Section 970) of Part 5 of Division 3.6 of Title 1 of
the Government Code for the enforcement of a judgment against a
local public entity applies to a judgment against a local public
entity that violates this section.
(5) This subdivision applies to actions filed on and after January
1, 2006.
(6) The limitations period specified in subparagraphs (A) and (B)
of paragraph (1) does not apply to a cause of action brought pursuant
to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of
the Code of Civil Procedure.
SEC. 391. Section 33334.22 of the Health and Safety Code is
amended to read:
33334.22. (a) The Legislature finds and declares that in order to
avoid serious economic hardships and accompanying blight, it is
necessary to enact this section for the purpose of providing housing
assistance to very low, lower, and moderate-income households. This
section applies to any redevelopment agency located within Santa Cruz
County, the Contra Costa County Redevelopment Agency, and the
Monterey County Redevelopment Agency.
(b) Notwithstanding Section 50052.5, any redevelopment agency to
which this section applies may make assistance available from its
low- and moderate-income housing fund directly to a home buyer for
the purchase of an owner-occupied home, and for purposes of that
assistance and this section, "affordable housing cost" shall not
exceed the following:
(1) For very low income households, the product of 40 percent
times 50 percent of the area median income adjusted for family size
appropriate for the unit.
(2) For lower income households whose gross incomes exceed the
maximum income for very low income households and do not exceed 70
percent of the area median income adjusted for family size, the
product of 40 percent times 70 percent of the area median income
adjusted for family size appropriate for the unit. In addition, for
any lower income household that has a gross income that equals or
exceeds 70 percent of the area median income adjusted for family
size, it shall be optional for any state or local funding agency to
require that the affordable housing cost not exceed 40 percent of the
gross income of the household.
(3) For moderate income households, affordable housing cost shall
not exceed the product of 40 percent times 110 percent of the area
median income adjusted for family size appropriate for the unit. In
addition, for any moderate-income household that has a gross income
that exceeds 110 percent of the area median income adjusted for
family size, it shall be optional for any state or local funding
agency to require that affordable housing cost not exceed 40 percent
of the gross income of the household.
(c) Any agency that provides assistance pursuant to this section
shall include in the annual report to the Controller, pursuant to
Sections 33080 and 33080.1, all of the following information:
(1) The sales sale prices of homes
purchased with assistance from the agency's Low and Moderate Income
Housing Fund for each year from 2000 to 2007, inclusive, for agencies
in Santa Cruz County and for 2006 and 2007 for the Contra Costa
County Redevelopment Agency and the Monterey County Redevelopment
Agency.
(2) The sales sale prices of homes
purchased and rehabilitated with assistance from the agency's Low and
Moderate Income Housing Fund for each year from 2000 to 2007,
inclusive, for agencies in Santa Cruz County and for 2006 and 2007
for the Contra Costa County Redevelopment Agency and the Monterey
County Redevelopment Agency.
(3) The incomes, and percentage of income paid for housing costs,
of all households that purchased, and that purchased and
rehabilitated, homes with assistance from the agency's Low and
Moderate Income Housing Fund for each year from 2000 to 2007,
inclusive, for agencies in Santa Cruz County and for 2006 and 2007
for the Contra Costa County Redevelopment Agency and the Monterey
County Redevelopment Agency.
(d) Except as provided in subdivision (b), all provisions of
Section 50052.5, including any definitions, requirements, standards,
and regulations adopted to implement those provisions, shall apply to
this section.
(e) By April 1, 2007, the Controller shall furnish a compilation
of the information described in subdivision (c) to the Legislature
and the director.
(f) 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. 392. Section 33446 of the Health and Safety Code is amended
to read:
33446. The governing board of any school district may enter into
an agreement with an agency under which the agency shall construct,
or cause to be constructed, a building or buildings to be used by the
district upon a designated site within a project area and, pursuant
to such the agreement, the district may
lease such the buildings and site.
Such The agreement shall provide that
the title to such the building or
buildings and site shall vest in the district at the expiration of
such the lease, and may provide the
means or method by which the title to the building or buildings and
the site shall vest in the district prior to the expiration of
such the lease, and shall contain
such other terms and conditions as
that the governing board of the district deems
to be in the best interest of the district. Such
The agreements and leases may be entered into by the
governing board of any school district without regard to bidding,
election, or any other requirement of Article 9
2 (commencing with Section 15701)
17400) of Chapter 2 of Division 11 4
of Part 3 10.5 of the Education
Code.
SEC. 393. Section 33476 of the Health and Safety Code is amended
to read:
33476. Notwithstanding any other provision in
of this article, except the provisions of
Section 33471.5, for the purpose of allocating taxes
pursuant to Section 33670 which that
are subject to the provisions of this article,
redevelopment project areas under the jurisdiction of the
redevelopment agency of the City of San Bernardino designated
Meadowbrook/Central City, Central City East, and Central City South,
are hereby merged into one contiguous project areas designated
Central City. Each constitutent constituent
project area so merged , shall continue
under its own redevelopment plan for the longest term of the three
plans, but, except as otherwise provided in this article, taxes
attributable to each project area merged pursuant to this section
which that are allocated to the
redevelopment agency pursuant to Section 33670 shall be allocated, as
provided in subdivision (b) of such that
section, to the entire merged project area for the purpose of
paying the principal of and interest on loans, moneys advanced to, or
indebtedness (whether , whether
funded, refunded, assumed, or otherwise)
otherwise, incurred by the redevelopment agency to finance or
refinance, in whole or in part, such the
merged redevelopment project.
SEC. 394. Section 33492.78 of the Health and Safety Code is
amended to read:
33492.78. (a) The provisions of Section
33607.5 shall not apply to an agency created pursuant to this
article. For purposes of Sections 42238, 84750, and 84751 of the
Education Code, funds allocated pursuant to this section shall be
treated as if they were allocated pursuant to Section 33607.5.
(1) The provisions of this This
section shall apply to each redevelopment project area created
pursuant to a redevelopment plan which that
contains the provisions required by Section 33670 and is
created pursuant to this article. All the amounts calculated pursuant
to this section shall be calculated after the amount required to be
deposited in the Low and Moderate Income Housing Fund pursuant to
Sections 33334.2, 33334.3, and 33334.6, as modified by Section
33492.76, has been deducted from the total amount of tax-increment
funds received by the agency in the applicable fiscal year.
(2) The payments made pursuant to this section shall be in
addition to any amounts the school district or districts and
community college district or districts receive pursuant to
subdivision (a) of Section 33670. The agency shall reduce its
payments pursuant to this section to an affected school or community
college district by any amount the agency has paid, directly or
indirectly, pursuant to Section 33445, 33445.5, or 33446, or any
provision of law other than this section for, or in connection with,
a public facility owned or leased by that affected school or
community college district.
(3) (A) Of the total amount paid each year pursuant to this
section to school districts, 43.9 percent shall be considered to be
property taxes for the purposes of paragraph (1) of subdivision (h)
of Section 42238 of the Education Code, and 56.1 percent shall not be
considered to be property taxes for the purposes of that section,
and shall be available to be used for educational facilities.
(B) Of the total amount paid each year pursuant to this section to
community college districts, 47.5 percent shall be considered to be
property taxes for the purposes of Section 84750 of the Education
Code, and 52.5 percent shall not be considered to be property taxes
for the purposes of that section, and shall be available to be used
for educational facilities.
(C) Of the total amount paid each year pursuant to this section to
county offices of education, 19 percent shall be considered to be
property taxes for the purposes of paragraph (1) of subdivision (h)
of Section 42238 of the Education Code, and 81 percent shall not be
considered to be property taxes for the purposes of that section, and
shall be available to be used for educational facilities.
(D) Of the total amount paid each year pursuant to this section to
special education, 19 percent shall be considered to be property
taxes for the purposes of paragraph (1) of subdivision (h) of Section
42238 of the Education Code, and 81 percent shall not be considered
to be property taxes for the purposes of that section, and shall be
available to be used for educational facilities.
(4) Local education agencies that use funds received pursuant to
this section for educational facilities shall spend these funds at
schools that are any one of the following:
(A) Within the project area.
(B) Attended by students from the project area.
(C) Attended by students generated by projects that are assisted
directly by the redevelopment agency.
(D) Determined by a local education agency to be of benefit to the
project area.
(b) Commencing with the first fiscal year in which the agency
receives tax increments, and continuing through the last fiscal year
in which the agency receives tax increments, a redevelopment agency
created pursuant to this article shall pay to each affected school
and community college district an amount equal to the product of 25
percent times the percentage share of total property taxes collected
which that are allocated to each
affected school or community college district, including any amount
allocated to each district pursuant to Sections 97.03 and 97.035 of
the Revenue and Taxation Code times the total of the tax increments
received by the agency after the amount required to be deposited in
the Low and Moderate Income Housing Fund has been deducted.
(c) Commencing with the 11th fiscal year in which the agency
receives tax increments and continuing through the last fiscal year
in which the agency receives tax increments, a redevelopment agency
created pursuant to this article shall pay to each affected school
and community college district, in addition to the amounts paid
pursuant to subdivision (b), an amount equal to the product of 21
percent times the percentage share of total property taxes collected
which that are allocated to each
affected school or community college district, including any amount
allocated to each district pursuant to Sections 97.03 and 97.035 of
the Revenue and Taxation Code times the total of the first adjusted
tax increments received by the agency after the amount required to be
deposited in the Low and Moderate Income Housing Fund has been
deducted. The first adjusted tax increments received by the agency
shall be calculated by applying the tax rate against the amount of
assessed value by which the current year assessed value exceeds the
first adjusted base year assessed value. The first adjusted base year
assessed value is the assessed value of the project area in the 10th
fiscal year in which the agency receives tax increment.
(d) Commencing with the 31st fiscal year in which the agency
receives tax increments and continuing through the last fiscal year
in which the agency receives tax increments, a redevelopment agency
shall pay to the affected school and community college districts, in
addition to the amounts paid pursuant to subdivisions (b) and (c), an
amount equal to 14 percent times the percentage share of total
property taxes collected which that are
allocated to each affected school or community college district,
including any amount allocated to each district pursuant to Sections
97.03 and 97.035 of the Revenue and Taxation Code times the total of
the second adjusted tax increments received by the agency after the
amount required to be deposited in the Low and Moderate Income
Housing Fund has been deducted. The second adjusted tax increments
received by the agency shall be calculated by applying the tax rate
against the amount of assessed value by which the current year
assessed value exceeds the second adjusted base year assessed value.
The second adjusted base year assessed value is the assessed value of
the project area in the 30th fiscal year in which the agency
receives tax increments.
(g)
(e) (1) The Legislature finds and declares both of the
following:
(A) The payments made pursuant to this section are necessary in
order to alleviate the financial burden and detriment that affected
school and community college districts may incur as a result of the
adoption of a redevelopment plan, and payments made pursuant to this
section will benefit redevelopment project areas.
(B) The payments made pursuant to this section are the exclusive
payments that are required to be made by a redevelopment agency to
affected school and community college districts during the term of a
redevelopment plan.
(2) Notwithstanding any other provision of law, a redevelopment
agency shall not be required, either directly or indirectly, as a
measure to mitigate a significant environmental effect or as part of
any settlement agreement or judgment brought in any action to contest
the validity of a redevelopment plan pursuant to Section 33501, to
make any other payments to affected school or community college
districts, or to pay for public facilities that will be owned or
leased to an affected school or community college district.
(h)
(f) As used in this section, a "local education agency"
includes a school district, a community college district, or a
county office of education.
SEC. 395. Section 33492.86 of the Health and Safety Code is
amended to read:
33492.86. (a) This section shall apply to a redevelopment project
area the territory of which includes March Air Force Base, that is
adopted pursuant to a redevelopment plan that contains the provisions
required by Section 33670, and that is adopted pursuant to this
chapter. The redevelopment agency shall make the payments to affected
school districts and community college districts required by
subdivision (a) of Section 33607.5, except that each of the time
periods governing the payments shall be calculated from the date the
county auditor makes the certification to the Director of Finance
pursuant to Section 33492.9 instead of from the first fiscal year in
which the agency receives tax-increment revenue.
(b) (1) Pursuant to Section 33492.3, the March Air Force Base
Project Area adopted pursuant to this article may include all, or any
portion of, property within the military base that the federal Base
Closure and Realignment Commission has voted to realign when that
action has been sustained by the President and the Congress of the
United States, regardless of the percentage of urbanized land, as
defined in Section 33320.1, within the military base.
(2) (A) Pursuant to Section 33492.3, the March Air Force Base
Project Area may include territory outside the military base. The
project area shall be entirely contained within
a one-mile perimeter of the boundaries of
March Air Force Base, as those boundaries exist on January 1, 1995.
At no time shall the aggregate acreage of the project area outside
the boundaries of March Air Force Base, as those boundaries exist on
January 1, 1995, exceed 2 percent of the total acreage contained
within that one-mile perimeter, and these areas may only be included
in the project area upon a finding of benefit to the March Air Force
Base Project Area and with the concurrence of the legislative bodies
of the County of Riverside, the City of Moreno Valley, the City of
Perris, and the City of Riverside.
(B) The agency for the March Air Force Base Project Area may, with
the concurrence of the relevant legislative body pursuant to
subparagraph (B), pay for all or a part of the value of land and the
cost of the installation and construction of any structure or
facility or other improvement that is publicly owned outside the
jurisdiction of the agency, if the legislative body of the agency
determines all of the following:
(i) That the structure, facility, or other improvement is of
benefit to the project area.
(ii) That no other reasonable means of financing the facilities,
structures, or improvements are available to the community.
(iii) That the payment of funds for the acquisition of land or the
cost of facilities, structures, or other improvements will assist in
the elimination of one or more blight conditions, as identified
pursuant to Section 33492.83, inside the project area, or provide
housing for low- or moderate-income persons.
(C) Concurrence of the relevant legislative body shall be
demonstrated by the adoption of an ordinance by the community where
the structure, facility, or other improvement is to be located
which that authorizes the redevelopment
of the area within its territorial limits by the redevelopment
agency for the March Air Force Base Project Area.
(D) All projects authorized by this subdivision shall be within
communities which that are contiguous
to the March Air Force Base Project Area.
(c) Notwithstanding subdivision (a) of Section 33492.15 or any
other provision of law, the March Joint Powers Redevelopment Agency
shall not be obligated to make any payments required by subdivision
(a) of Section 33942.15 33492.15 to the
County of Riverside, the County Free Library Fund, and the County
Fire Fund. Instead, the March Joint Powers Redevelopment Agency shall
be required to make those payments required under the Cooperative
Agreement entered into among the County of Riverside, the March Joint
Powers Authority, and the March Joint Powers Redevelopment Agency
dated August 20, 1996, as that agreement may be amended from time to
time.
SEC. 396. Section 35816 of the Health and Safety Code is amended
to read:
35816. (a) The secretary shall adopt
regulations applicable to all persons who are in the business of
originating residential mortgage loans in this state, including, but
not limited to, insurers, mortgage bankers, investment bankers ,
and credit unions and who are not depository institutions
within the meaning of subsection (2) of Section 2802 of Title 12 of
the United States Code. The regulations for residential mortgage
loans shall impose substantially the same reporting requirements by
geographic area and loan product as are imposed by the federal Home
Mortgage Disclosure Act of 1975, as amended (12 U.S.C. Sec. 2801 et
seq.).
(b) This section does not apply to
subsidiaries of depository institutions or subsidiaries of depository
institution holding companies which that
are currently reporting to a federal or state regulatory agency
as provided by the Home Mortgage Disclosure Act of 1975, as amended
(12 U.S.C. Sec. 2081 2801 et seq.) or
are subject to substantially the same reporting requirements by
geographic area and loan product pursuant to an act of a federal or
state regulatory agency.
SEC. 397. Section 38012 of the Health and Safety Code is amended
to read:
38012. The Department of General Services shall review and
approve contracts in accordance with the provisions of
Article 4 of Chapter 2 (commencing with
Section 10290) 10335) of Chapter 2 of
Part 2 of Division 2 of the Public Contract Code.
SEC. 398. Section 39941 of the Health and Safety Code is amended
to read:
39941. The state board shall establish an advisory group to make
recommendations to the state board regarding the design and
implementation of the pilot program.
(a) The advisory group shall consist of an even number of
members, not to exceed 14, as determined by the boards of the South
Coast Air Quality Management District and the Sacramento Metropolitan
Air Quality Management District.
(b) The advisory group shall consist of recognized experts in the
field of remote sensing and locomotive engine technology, and
representatives of citizen community groups, representatives of the
South Coast Air Quality Management District, and representatives of
the Sacramento Metropolitan Air Quality Management District. The
advisory committee may also include representatives of the Union
Pacific Railroad and the Burlington Northern Santa Fe Railway.
(2)
(c) The advisory group shall be appointed by the South
Coast Air Quality Management District and the Sacramento Metropolitan
Air Quality Management District. If the Union Pacific Railroad and
Burlington Northern Santa Fe Railway choose to participate, 50
percent of the members of the advisory group shall be appointed by
the Union Pacific Railroad and Burlington Northern Santa Fe Railway
and 50 percent shall be appointed by the South Coast Air Quality
Management District and the Sacramento Metropolitan Air Quality
Management District.
SEC. 399. Section 40440.2 of the Health and Safety Code is amended
to read:
40440.2. (a) In addition
to, and notwithstanding the requirements of, Section 39616, all of
the following shall be implemented as part of the south coast
district's market-based incentive program, the Regional Clean Air
Incentives Market, also known as RECLAIM:
(a) (1) (A)
On or before July 1, 1998, the south coast district staff
shall provide to the south coast district board a progress report
based on the annual audits specified in paragraph (3)
subdivision (c) . The progress report shall meet
all of the following requirements:
(i)
(A) The data in the report for the nitrogen oxides
RECLAIM program shall be aggregated by three-digit SIC code and
facility emission rate to the extent feasible. The categories of
emission rates shall be under 4, 4 to 10, inclusive, 11 to 100,
inclusive, and over 100 tons per year.
(ii)
(B) The data in the report for the sulfur oxides
RECLAIM program shall be aggregated by three-digit SIC code only to
the extent feasible.
(iii)
(C) In preparing the report, the south coast district
shall publish in an appendix all final data and model outputs, except
that it shall keep confidential any facility-specific information
that is obtained by either the south coast district, or any
independent contractor retained by the south coast district, in the
course of preparing the report.
(iv)
(D) Any publication of the data obtained from
facilities by the south coast district shall be in aggregate form
only, as specified in this subdivision. The south coast district
board shall make the raw data available to the public.
(B)
(2) The south coast district board shall receive public
comment on the progress report.
(C)
(3) The south coast district shall not lower the
emission threshold for mandatory participation in the RECLAIM program
for nitrogen oxides and sulfur oxides from the threshold that was
established on October 15, 1993, until the progress report is
completed and a public hearing on the report has been held, unless
the south coast district board finds, after a public hearing, that
there will be no adverse environmental or economic effects resulting
from a lowered emission threshold.
(2)
(b) On or before July 1, 1997, an advisory committee
shall be selected by the south coast district board. The advisory
committee shall serve for a maximum of one year, or until the report
required by paragraph (4) subdivision (d)
is made to the south coast district board, whichever is later.
The advisory committee shall be composed of the following members:
(A)
(1) One representative from each of the following:
(i)
(A) A facility that participates in one or both of the
market-based incentive programs and emits more than 100 tons of
nitrogen oxides or sulfur oxides annually.
(ii)
(B) A facility that emits from 11 to 100 tons,
inclusive, of nitrogen oxides or sulfur oxides annually.
(iii)
(C) A facility that emits less than 10 tons of nitrogen
oxides or sulfur oxides annually.
(B)
(2) One representative from the south coast district
staff, one representative from the state board, and one
representative from the Environmental Protection Agency.
(C)
(3) One representative from a financial institution.
(D)
(4) One representative from an academic institution.
(E)
(5) One representative from a market commodities or
securities trading institution.
(F)
(6) One representative from an economic analysis
research institution.
(G)
(7) Two representatives from environmental
organizations.
(H)
(8) One representative from each of the investor-owned
energy utilities serving the south coast district, and one
representative from a municipal energy utility representing the City
of Los Angeles.
(I)
(9) One representative from a technical contractor
specializing in installation and certification of emissions
monitoring equipment.
(J)
(10) One representative from an oil company.
(K)
(11) One representative from the aerospace industry.
(3)
(c) In addition to any other information required by
subdivision (e) of Section 39616, the south coast district shall
annually perform a detailed assessment of the program audit findings
specified in paragraph (1) of subdivision (b) of south coast district
Rule 2015, as adopted October 15, 1993.
(4)
(d) The advisory committee shall conduct a peer review
of the progress report to the south coast district board required
pursuant to paragraph (1) subdivision (a)
. The advisory committee shall present its peer review
conclusions to the south coast district board as an independent
report concurrently with the staff progress report. The advisory
committee may request staff support from the south coast district in
conducting its peer review and preparing the report.
SEC. 400. Section 40717.6 of the Health and Safety Code is amended
to read:
40717.6. (a) No district or other local or regional agency shall
impose any requirement on any private entity, including any
requirement in any congestion management program adopted pursuant to
Section 65089 of the Government Code, except as specifically provided
in Section 65089.1 of the Government Code, to reduce shopping trips
or to require the imposition of parking charges or the elimination of
existing parking spaces at retail facilities.
(b) Notwithstanding subdivision (a), nothing in this section
shall be construed to prevent a city or county from doing any of the
following:
(1) Requiring retailers to make available to customers
information concerning alternative transportation systems serving the
retail site.
(2) Imposing requirements on new development as a condition of
development for the purpose of mitigation pursuant to the California
Environmental Quality Act Division (Division
13 (commencing with Section 21000) of the Public Resources
Code).
(3) Enacting requirements on retailers as a result of a voter
imposed growth management initiative.
(c) Nothing in this section shall be construed as a limitation on
the land use authority of cities and counties.
SEC. 401. Section 42840 of the Health and Safety Code is amended
to read:
42840. (a) Participants shall utilize the following
reporting procedures described in this section
to establish a greenhouse gas emissions baseline ,
participants . P articipants shall
report their certified emissions for the most recent year for which
they have complete energy use and fuel consumption data as specified
in this chapter. Participants that have complete energy use or fuel
consumption data for earlier years that can be certified may
establish their baseline as any year beginning on or after January 1,
1990. After establishing baseline emissions, participants shall
report their certified emissions results in each subsequent year in
order to show changes in emissions levels with respect to their
baseline year. Participants may report annual emission results
without establishing an emissions baseline. Participants shall also
report using industry-specific metrics once the registry adopts an
industry-specific metric for the industry in question.
(b) (1) Participants shall report direct emissions and indirect
emissions separately. Direct emissions are those emissions from
applicable sources that are under management control of a
participating entity, including onsite combustion, fugitive
noncombustion emissions, and vehicles owned and operated by the
participant. Indirect emissions that are required to be reported by
participants are those emissions embodied in net electricity and
steam imports, including offsite steam generation and district
heating and cooling. Participants are encouraged, but are not
required, to report other indirect emissions based on guidance that
is adopted by the registry.
(2) On or after January 1, 2004, the registry board, in
coordination with the State Energy Resources Conservation and
Development Commission, may revise the scope of indirect emission
source types that are required to be reported by participants
specified in paragraph (1) after a public workshop and review process
conducted by the registry if all of the following requirements have
been met.
(A) The State Energy Resources Conservation and Development
Commission has approved that revision at a public hearing following a
public workshop.
(B) Prior to approving that proposed revision, the commission
determines all of the following:
(i) A reasonable and generally-accepted
generally accepted methodology exists that will
enable participants to accurately estimate and report the emissions
for the indirect source type in question.
(ii) The proposed revision will not create an unreasonable
reporting burden on the participants.
(iii) The proposed revision is necessary to achieve the purposes
listed in Section 42810.
(C) The registry, at any time it acts to revise the scope of
indirect emission source types that are required to be reported by
participants, establishes a timeframe for the phasein of the revised
scope so that participants shall have at least four months before the
start of the next annual reporting cycle that incorporates the
revised scope.
(3) In cases of joint ownership, emissions are reported by the
managing entity, unless the owners decide to report emissions on a
pro rata basis.
(4) Participants shall not be required to report emissions of any
greenhouse gas that is de minimis in quantity, when summed up across
all applicable sources of the participating entity. The State Energy
Resources Conservation and Development Commission shall recommend to
the registry a definition of de minimis emissions that reasonably
accounts for differences in the size, activities, and sources of
direct and indirect baseline emissions of participants, and is
consistent with the goals and intent of subdivision (f) of Section
42801.
(c) (1) All participants shall report direct and indirect carbon
dioxide (CO2) emissions that are material to their operations.
(2) The registry shall also encourage participants to monitor and
report emissions of the following gases:
(A) Hydrofluorocarbons (HFCs).
(B) Methane (CH4).
(C) Nitrous Oxide (N2O).
(D) Perfluorocarbons (PFCs).
(E) Sulfur hexafluoride (SF6).
(3) The report of information specified in paragraph (2) is
optional for three years after a participant joins the registry.
After participating in the registry for a total of three years,
participants shall report emissions required by both paragraphs (1)
and (2).
(4) Emissions of all gases under this subdivision shall be
reported in mass units.
(d) The basic unit of participation in the registry shall be an
entity in its entirety such as a corporation or other legally
constituted body, any city or county, and each state government
agency. The registry shall not record emissions baselines and
reductions for individual facilities or projects, except to the
extent they are included in an entity's emissions reporting.
(1) Corporations may report emissions baselines and annual
emissions results from subsidiaries if the parent corporation is
clearly defined.
(2) Participants shall report emissions results from all of their
applicable sources in the state when they initially register.
(3) Participants may, and are encouraged to, at any time, register
emissions from all applicable sources based in the United States, so
long as this reporting meets all the other requirements established
by this chapter. Those participants with emissions in other states
that report California emissions only may not be able to receive
equal consideration for their emissions records in future national or
international regulatory regimes relating to greenhouse gas
emissions. In addition, participants with operations outside of the
United States are encouraged to register their total worldwide
emissions baselines and annual emissions results. Within three years,
the registry shall review and report to the Legislature with a
recommendation on whether the registry should require, rather than
encourage, participants to report all of their greenhouse gas
emissions in the United States, not just California emissions.
(4) To ensure that reported emissions reflect actual emissions,
participants that outsource production or services shall report
emissions associated with the outsourced activity, and remove these
emissions from their emissions baseline. The subcontracted entity, if
it voluntarily chooses to participate in the registry shall report
emissions associated with the outsourced activities it has taken
over. Participants shall attest at least once each year that the
entity has not outsourced any emissions, or that if it has, that all
emissions associated with the outsourced activity have been reported
and subtracted from the entity's baseline emissions.
(5) To prevent changes in vertical integration within corporations
from leading to apparent emissions reductions when in fact no
reductions have occurred, the registry shall treat mergers,
acquisitions, and divestitures as follows:
(A) The emissions baselines of any merged or acquired entity shall
be added together, and the registry shall treat the resulting entity
as if it had been one corporation from the beginning.
(B) In divestitures, the emissions baselines of the affected
corporations shall be split, with the effect that the registry shall
treat them as if they had been separate corporations from the
beginning. If the divested corporation is purchased by another firm,
the registry shall treat that purchase as a merger with the
purchasing corporation. If the divested corporation remains a
separate entity after the divestiture, its registry baseline shall
reflect the emissions associated with the entity's operations before
the divestiture. Corporations that divest operations may allocate
certified emissions results achieved prior to the divestiture among
the divesting and the divested entities, and the registry shall
adjust their baselines accordingly.
(C) Any adjustments for changes in vertical integration shall be
verified in the annual emissions certifications required for
recordation of emissions results.
(6) If a participant changes from statewide to national reporting
under this program, changes to its baseline will be treated in a
similar manner as changes in vertical integration as described in
paragraph (5).
(7) To ensure that reported emissions accurately reflect shifts in
operations to or from other states, the registry shall adopt, in
consultation with the State Energy Resources Conservation and
Development Commission, at a public meeting and following at least
one public workshop, reporting procedures for participants that
choose to report greenhouse emissions on a statewide basis that
require participants to show both of the following:
(A) Changes in a participant's operations, such as a facility
startup or shutdown, that result in a significant and long-term shift
of greenhouse gas emissions from California to other states or from
other states to California.
(B) The corresponding change in the participant's baseline.
SEC. 402. Section 43200.1 of the Health and Safety Code is amended
to read:
43200.1. (a) The Legislature finds and declares that since 1998,
the state board has imposed smog index label specifications on new
passenger cars and light-duty trucks that are sold and registered in
the state to inform consumers about emissions of air pollutants from
the use of new vehicles.
(b) (1) (A) The state board, not later than July 1, 2007, shall
revise the regulations adopted pursuant to Section 43200 to rename
the existing label required by those regulations, and to require the
renamed label to include, for model year 2009 and subsequent model
year motor vehicles, information on the emissions of global warming
gases from motor vehicles for the same model year.
(B) This subdivision applies to, at a minimum, all passenger cars
and light-duty trucks with a gross vehicle weight of 8,500 pounds or
less, and to all motor vehicles subject to regulation pursuant to
Section 43018.5.
(C) Emissions of global warming gases shall include emissions, as
determined by the state board, from vehicle operation and upstream
emissions.
(2) The label shall include all of the following:
(A) A smog index that contains quantitative information presented
in a continuous, easy-to-read scale, unless the state board
determines, after at least one public workshop, that an alternative
graphical representation will more effectively convey the information
to consumers, and that compares the emissions from the vehicle with
the average projected emissions from all vehicles of the same model
year sold in the state for which a label is required. For reference
purposes, the index shall also identify the emissions from the
vehicle model of that same model year that has the lowest
smog-forming emissions.
(B) A global warming index that contains quantitative information
presented in a continuous, easy-to-read scale, unless the state board
determines, after at least one public workshop, that an alternative
graphical representation will more effectively convey the information
to consumers, and that compares the emissions of global warming
gases from the vehicle with the average projected emissions of global
warming gases from all vehicles of the same model year sold in the
state for which a label is required. For reference purposes, the
index shall also identify the emissions of global warming gases from
the vehicle model of that same model year that has the lowest
emissions of global warming gases.
(C) A brief explanation, prepared by the state board, of the
indices required by this section, including the identification of
motor vehicle usage as a primary cause of global warming, and how
emissions of those gases from motor vehicles may be reduced.
(D) The use of at least one color ink, as determined by the state
board, in addition to black.
(c) In order to ensure that the label is useful and informative to
consumers, the state board , shall, to the extent
feasible within its existing resources, do both of the following in
designing the label:
(1) Seek input from automotive consumers, graphic design
professionals, and persons with expertise in environmental labeling.
(2) Consider other relevant label formats consistent with
paragraph (2) of subdivision (b).
(d) The indices included in the label pursuant to paragraph (2) of
subdivision (b) shall be updated as determined necessary by the
state board to ensure that the differences in emissions among
vehicles are readily apparent to the consumer.
(e) The state board, in consultation with other agencies as
appropriate, may recommend to the Legislature additional sources of
air pollution that emit significant amounts of global warming gases
for which the disclosure of information regarding those emissions
would be an effective means of educating the public about the sources
of global warming and its impacts.
(f) The state board shall, as it determines appropriate and to the
extent feasible within its existing resources, incorporate
information from the label into existing programs designed to educate
motor vehicle consumers about emissions of global warming gases and
other air pollutants.
(g) The state board may accept donations or grants of funds from
any person for the purposes of the program established pursuant to
this section, and shall deposit amounts received from donations or
grants into the Air Pollution Control Fund. The source of any funds
received pursuant to this section shall be disclosed at all public
hearings and workshops to implement this section. Donations, grants,
or other commitments of money to the fund may be dedicated for
specific purposes consistent with the goals of this section.
(h) For the purposes of this section, the following definitions
apply:
(1) "Global warming gases" has the same meaning as greenhouse
gases given in subdivision (h) of Section 42801.1.
(2) "Upstream emissions" means emissions of global warming gases
that occur during the extraction, refining, transport, and local
distribution of motor vehicle fuels as determined by the state board.
SEC. 403. Section 43812 of the Health and Safety Code is amended
to read:
43812. For the purposes of this article, the following
definitions apply:
(a) "Department" means the Department of General Services.
(b) "Director" means the Director of General Services.
(c) "Energy-efficient vehicle" means either of the following:
(1) A vehicle that meets California's super ultra-low emission
vehicle (SULEV) standard for exhaust emissions and the federal
inherently low-emission vehicle (ILEV) evaporative emission standard,
as defined in Part 88 (commencing with Section 88.101-94) of Title
40 of the Code of Federal Regulations.
(2) A hybrid vehicle or an alternative fuel vehicle that meets
California's advanced technology partial zero-emission vehicle (AT
PZEV) standard for criteria pollutant emissions.
(d) "Local agency" means any governmental subdivision, district,
public and quasi-public corporation, joint powers agency, public
agency or public service corporation, authority, agency, board,
commission, town, city, county, city and county, fire district,
special district, school district, public utility, community college,
or municipal corporation, whether incorporated or not or whether
chartered or not, or any other public entity.
(e) "State agency" means any department, division, board, bureau,
commission, or other authority of the State of California ,
the University of California, or the California State
University.
SEC. 404. Section 43867 of the Health and Safety Code is amended
to read:
43867. For the purposes of this article, the following terms have
the following meanings:
(a) "Alternative fuel" means a nonpetroleum fuel, including
electricity, ethanol, biodiesel, hydrogen, methanol, or natural gas
that, when used in vehicles, has been demonstrated, to the
satisfaction of the state board, to have the ability to meet
applicable vehicular emission standards. For the purpose of this
section, alternative fuel may also include petroleum fuel blended
with nonpetroleum constituents, such as E85 or B20.
(b) "Full fuel-cycle assessment" means evaluating and comparing
the full environmental and health impacts of each step in the life
cycle of a fuel, including, but not limited to, all of the following:
(1) Feedstock extraction, transport, and storage.
(2) Fuel production, distribution, transport, and storage.
(3) Vehicle operation, including refueling, combustion or
conversion, and evaporation.
SEC. 405. Section 44037 of the Health and Safety Code is amended
to read:
44037. (a) The department shall compile and maintain records,
using the sampling methodology necessary to ensure their scientific
validity and reliability, of tests and repairs performed by qualified
smog check technician technicians at
licensed smog check stations pursuant to this chapter on all of the
following information:
(1) The motor vehicle identification information and the test data
collected at the station.
(2) The number of maintenance and repair operations performed on
motor vehicles which that fail to pass
a test conducted pursuant to this chapter.
(3) The correlation between maintenance and repairs recommended by
the department pursuant to Section 44016 and maintenance and repairs
performed.
(4) The charges assessed for the service and repairs and the
correlation between the amount charged for repairs and the amount of
emission reduction.
(5) Data received and compiled through the use of the centralized
computer data base data base
and computer network to be established pursuant to Section 44037.1,
and any other information determined to be essential by the
department for program enhancement to achieve greater efficiency,
consumer protection, cost-effectiveness, convenience, or emission
reductions.
(6) The frequency of specific smog check stations which
issue issuing a passing certificate for vehicles
which that have failed a previous
inspection at other smog check stations within the preceding 30 days.
(b) A written summary of the information specified in subdivision
(a) shall be available annually for the technicians and smog check
stations in each district and to the public upon request.
SEC. 406. Section 44090 of the Health and Safety Code is amended
to read:
44090. For purposes of this article, the following terms have the
following meaning meanings :
(a) "Account" means the High Polluter Repair or Removal Account
created pursuant to subdivision (a) of Section 44091.
(b) "High polluter" means a high-emission motor vehicle,
including, but not limited to, a gross polluter.
SEC. 407. Section 44366 of the Health and Safety Code is amended
to read:
44366. (a) In order to
verify the accuracy of any information submitted by facilities
pursuant to this part, a district or the state board may proceed in
accordance with Section 41510.
SEC. 408. Section 50660.5 of the Health and Safety Code is amended
to read:
50660.5. (a) It is the intent of the Legislature to encourage
local governments to assist residents to repair and rebuild housing
in a cost-efficient and expeditious manner following a disaster. To
this end, the Legislature recognizes that local governments may enact
ordinances following disasters to expedite the permit process.
These ordinances may include, but not be limited to, ordinances
waiving fees and streamlining requirements affecting disaster-related
repairs.
(b) The Legislature finds and declares that homeowners and owners
of rental housing who apply for assistance pursuant to
Section Sections 50662.7, 50671.5, and 50671.6
may be unable to utilize expedited procedures or liberalized
standards because loan approval and repair may occur after the
expiration of the local ordinance. It is, therefore, the intent of
the Legislature to encourage local governments to extend the
application of these local ordinances to homeowners and owners of
rental housing who are utilizing disaster assistance programs,
including the respective loan programs authorized by Sections
50662.7, 50671.5, and 50671.6, so that housing can be repaired or
rebuilt in a cost-efficient and expeditious manner.
SEC. 409. Section 50896 of the Health and Safety Code is amended
to read:
50896. The Legislature hereby finds and declares all of the
following:
(a) The Cranston-Gonzales
Cranston-Gonzalez National Affordable Housing Act of 1990
(Public Law (P.L. 101-625) was enacted
to reaffirm the long-established national commitment to decent, safe,
and sanitary housing for every American.
(b) Title II of that law establishes the HOME Investment
Partnership Act (otherwise ,
otherwise referred to as HOME) HOME,
to do all of the following : (1)
expand
(1) Expand the supply of decent,
safe, and affordable housing with primary attention to low-income
rental housing ; (2) strengthen .
(2) Strengthen the abilities of
states and local governments to design and implement affordable
housing strategies ; and (3) provide .
(3) Provide both federal
financial and technical assistance to support state and local
efforts.
(c) HOME, as administered by the United States Department of
Housing and Urban Development, allocates funds by formula among the
eligible states and units of local government which
that shall use HOME funds to carry out multiyear
housing strategies through acquisition, rehabilitation, and new
construction of housing and tenant-based rental assistance.
(d) It is the intent of the Legislature in enacting this chapter
to complement federal law and regulations by prescribing more
precisely state priorities and procedures for expending the state's
allocation under the HOME program, providing technical assistance and
coordination of HOME activities within the State of California, and
maximizing and fully utilizing all financial resources for housing.
SEC. 410. Section 50896.1 of the Health and Safety Code is amended
to read:
50896.1. The Department of Housing and Community Development
shall be the state agency responsible for both of the following
:
(a) The administration of the state's allocation of HOME funds in
accordance with the requirements of Title II of the
Cranston-Gonzales Cranston-Gonzalez National
Affordable Housing Act, federal regulations, and this chapter.
(b) Provision The provision
of technical assistance and coordination of the HOME activities
as may be requested by local governments or community housing
development organizations receiving allocations of HOME funds.
SEC. 411. Section 50896.2 of the Health and Safety Code is amended
to read:
50896.2. As used in this chapter:
(a) "HOME" means the HOME Investment Partnership Act as enacted in
Title II of the Cranston-Gonzales
Cranston-Gonzalez National Affordable Housing Act.
(b) "Local agency," as defined in Section 50077, shall also mean
"units of local government," as defined in Section 92.2, Subpart A of
Part 92 of Subtitle A of Title 24 of the Code of Federal
Regulations.
(c) "Community housing development organizations" means the
nonprofit organizations described in Section 92.300, Subpart G of
Part 92 of Subtitle A of Title 24 of the Code of Federal Regulations.
(d) "Housing sponsor" shall have the same meaning as defined in
Section 50074.
SEC. 412. Section 51504 of the Health and Safety Code is amended
to read:
51504. (a) The agency shall administer a downpayment assistance
program that includes, but is not limited to, all of the following:
(1) Downpayment assistance shall include, but not be limited to, a
deferred-payment, low-interest, junior mortgage loan to reduce the
principal and interest payments and make financing affordable to
first-time low- and moderate-income home buyers.
(2) (A) Except as provided in subparagraph (B) or (C), the amount
of downpayment assistance shall not exceed 3 percent of the home
sales sale price.
(B) The amount of downpayment assistance for a new home within an
infill opportunity zone, as defined in Section 65088.1 of the
Government Code, a transit village development district, as defined
in Section 65460.4 of the Government Code, or a transit-oriented
development specific plan area, as defined in paragraph (6), shall
not exceed 5 percent of the purchase price or the appraised value,
whichever amount is less, of the new home. The borrower of the
downpayment assistance shall provide the lender originating the loan
with a certification from the local government agency administering
the infill opportunity zone, the transit village development
district, or the transit-oriented development specific plan area that
states that the property involved in the loan transaction is within
the boundaries of either the infill opportunity zone, the transit
village development district, or the transit-oriented development
specific plan area.
(C) Notwithstanding paragraph (1), the agency may, but is not
required to, provide downpayment assistance that does not exceed 6
percent of the home sales sale price to
first-time low-income home buyers who, as documented to the agency
by a nonprofit organization that is 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 as a neighborhood in
need of economic stimulation, renovation, and rehabilitation through
efforts that include increased home ownership opportunities for
low-income families. The agency shall not use more than six million
dollars ($6,000,000) in funds made available pursuant to Section
53533 for the purposes of this paragraph.
(3) The amount of the downpayment assistance shall be secured by a
deed of trust in a junior position to the primary financing
provided. The term of the loan for the downpayment assistance shall
not exceed the term of the primary loan.
(4) The amount of the downpayment assistance shall be due and
payable at the end of the term or upon sale of or refinancing of the
home. The borrower may refinance the mortgages on the home provided
that the principal and accrued interest on the junior mortgage loan
securing the downpayment assistance are repaid in full. All
repayments shall be made to the agency to be reallocated for the
purposes of this chapter.
(5) The agency may use up to 5 percent of the funds appropriated
by the Legislature for purposes of this chapter to administer this
program.
(6) For the purposes of this section, "transit-oriented
development specific plan area" means a specific plan that meets the
criteria set forth in Section 65451 of the Government Code, is
centered around a rail or light-rail station, ferry terminal, bus
hub, or bus transfer station, and is intended to achieve a higher
density use of land that facilitates use of the transit station.
(b) In addition to the downpayment assistance program authorized
by subdivision (a), the agency may, at its discretion, use not more
than seventy-five million dollars ($75,000,000) of the funds
available pursuant to this chapter to finance the acquisition of land
and the construction and development of for-sale residential
structures, through short-term loans pursuant to its authority
pursuant to Section 51100 ; however .
However , the agency shall make downpayment assistance
provided pursuant to paragraph (1), subparagraphs (A) and (B) of
paragraph (2), and paragraphs (3) to (5), inclusive, of subdivision
(a) the priority use for these funds. A loan made pursuant to this
section is not subject to the provisions of Article
4 (commencing with Section 51175) of Chapter 5.
SEC. 413. Section 52020 of the Health and Safety Code is amended
to read:
52020. (a) For purposes of a home financing program authorized by
this part, a city or county has the following powers and duties:
(1) To acquire, contract, and enter into advance commitments to
acquire , home mortgages made or owned by lending
institutions at the purchase prices and upon the other terms and
conditions as shall be determined by the city or county or other
person as it may designate as its agent, to make and execute
contracts with lending institutions for the origination and servicing
of home mortgages , and to pay the reasonable value of
services rendered under those contracts. Prior to executing any
contract with a lending institution, a city or county shall adopt
regulations establishing criteria for qualification of lending
institutions eligible to originate and service home mortgages under
home financing programs authorized by this part and shall, with
respect to each home financing program, permit each qualified lending
institution which that transacts
business in the city or county the opportunity to participate in the
program on an equitable basis with other participating lending
institutions. Two or more cities in the same county, or
a county and one or more cities within the county, or two
or more adjacent counties and any number of cities within those
counties may enter into an agreement to join or cooperate with one
another in the exercise jointly, or otherwise, of any or all of their
powers for the purpose of financing home mortgages pursuant to this
part with respect to property within the boundaries of any one or
more of the entities.
(2) To make loans to lending institutions under terms and
conditions which that , in addition to
other provisions as determined by the city or county, require the
lending institutions to use all of the net proceeds thereof, directly
or indirectly, for the making of home mortgages in an aggregate
principal amount equal to the amount of the net proceeds.
(3) To establish, by rules or regulations, in resolutions relating
to any issuance of bonds , or in any documents relating
to the issuance, standards and requirements applicable to the
purchase of home mortgages or the making of loans to lending
institutions as the city or county deems necessary or desirable to
effectuate the purposes of this part, which may include without
limitation any of the following:
(A) The time within which lending institutions are required to
make commitments and disbursements for home mortgages.
(B) The location and other characteristics of homes to be financed
by home mortgages.
(C) The terms and conditions of home mortgages to be acquired.
(D) The amounts and types of any insurance coverage required on
homes, home mortgages , and bonds.
(E) The representations and warranties of lending institutions
confirming compliance with the standards and requirements.
(F) Restrictions as to interest rate and other terms of home
mortgages or the return realized therefrom by lending institutions.
(G) The type and amount of collateral security to be provided to
assure repayment of any loans from the city or county and to assure
repayment of bonds.
(H) Any other matters related to the purchase of home mortgages or
the making of loans to lending institutions as deemed relevant by
the city or county.
(4) To require from each lending institution from which home
mortgages are purchased or to which loans are made the submission of
evidence satisfactory to the city or county of the ability and
intention of the lending institution to make home mortgages, and the
submission, within the time specified by the city or county for
making disbursements for home mortgages, of evidence satisfactory to
the city or county of the making of home mortgages and of compliance
with any standards and requirements established by it.
(b) Each city or county which that
finances housing pursuant to this part shall designate a person or
entity to administer the program.
(c) Each city or county which that
finances housing pursuant to this part shall adopt regulations
establishing criteria for qualification of persons and families,
which may differ among different cities or counties to reflect
varying economic and housing conditions. In developing this
these criteria, factors similar to the following
shall be taken into consideration:
(1) The amount of the income of the person or family that is
available for housing needs.
(2) The size of the household.
(3) The costs and condition of available housing.
(4) The eligibility of the persons or families for federal housing
assistance of any type.
(d) (1) Criteria for qualification of persons and families
pursuant to this section shall include a maximum household income,
which maximum shall not exceed the following:
(A) One hundred twenty percent of the median household income for
mortgages made for improving a home or for homes where the purchaser
will be the first occupant. Upon the resale of a home for which
financing was originally provided under this paragraph, the maximum
income of persons and families shall also be 120 percent of the
median household income.
(B) One hundred twenty percent of the median household income for
mortgages where the purchaser will not be the first occupant.
However, the city or county shall ensure that no less than 50 percent
of the funds allocated for home mortgages where the purchaser will
not be the first occupant shall be for households whose income does
not exceed 80 percent of that median household income. However, the
legislative body of the city or county may, by resolution, increase
this income limitation to 90 percent of median household income if
the legislative body finds that there are insufficient numbers of
creditworthy persons whose income does not exceed 80 percent of
median household income. The resolution is final and conclusive as to
the findings required by this paragraph.
(C) One hundred fifty percent of the median household income for
mortgages made for improving a home or for homes where the purchaser
will be the first occupant in any city, the entire area of which, or
in any county in which a portion of the county, is designated by the
United States Department of Commerce, Economic Development
Administration as a special impact area within a Title IV
redevelopment area, pursuant to Section 401 of the federal Public
Works and Economic Development Act of 1965, as amended, and
which that is eligible for Urban Development
Action Grant funds under the current distress standards established
for cities and counties by the Secretary of the United States
Department of Housing and Urban Development pursuant to Section 119
of the Housing and Community Development Act of 1974, if the homes
purchased or improved are situated within the boundaries of a special
impact area as defined by the Economic Development Administration,
and that designation is in effect on the date of sale of revenue
bonds issued under this part.
(2) As used in this subdivision, "median household income" means
the highest of (A) statewide median household income, (B) countywide
median household income, or (C) median family income for an area, as
determined by the United States Department of Housing and Urban
Development, with respect to either a standard metropolitan
statistical area or an area outside of a standard metropolitan
statistical area.
(e) (1) Subdivision (d) shall not apply with respect to home
finance programs funded with amounts made available by the issuance
of revenue bonds that (1) , for federal
tax law purposes , are bonds refunding qualified mortgage
bonds issued before January 1, 1987, and (2)
that satisfy the requirements of subdivision (a) of Section
1313 of the federal Tax Reform Act of 1986. With respect to these
programs, the maximum household income for qualification of persons
and families pursuant to this section shall be the following:
(A) One hundred fifty percent of the median household income for
mortgages made for improving a home or for homes where the purchaser
will be the first occupant. Upon the resale of a home for which
financing was originally provided under this paragraph, the maximum
income of persons and families shall also be 150 percent of the
median household income. For purposes of this paragraph, a mortgage
made for improving a home includes a home improvement loan as defined
in Section 143 of Title 26 of the United States Code.
(B) One hundred twenty percent of the median household income
where the purchaser will not be the first occupant. However, the
city or county shall ensure that no less than 20 percent of the funds
allocated for home mortgages where the purchaser will not be the
first occupant shall be for households whose income does not exceed
110 percent of that median household income. However, the legislative
body of the city or county may, by resolution, increase this income
limitation to 120 percent of the median household income if the
legislative body finds that there are insufficient numbers of
creditworthy persons whose income does not exceed 110 percent of the
median household income. The resolution is final and conclusive as to
the findings required by this paragraph. However, the finding shall
not be made by the legislative body before six months from the date
mortgages were first made under the program and only if participating
lenders have entered into an agreement with the city, county, or
city and county that lenders will advertise at least monthly the
availability of funds and will forfeit one-quarter of their
origination fees if they are unable to use 20 percent of the funds to
make mortgages to households whose income does not exceed 110
percent of the median income.
(C) One hundred fifty percent of the median household income for
mortgages made for improving a home or for homes where the purchaser
will be the first occupant in any city, the entire area of which, or
in any county in which a portion of the county, is designated by the
United States Department of Commerce, Economic Development
Administration as a special impact area within a Title IV
redevelopment area, pursuant to Section 401 of the federal Public
Works and Economic Development Act of 1965, as amended, and
which that is eligible for Urban Development
Action Grant funds under the current distress standards established
for cities and counties by the Secretary of the United States
Department of Housing and Urban Development pursuant to Section 119
of the Housing and Community Development Act of 1974, if the homes
purchased or improved are situated within the boundaries of a special
impact area as defined by the Economic Development Administration,
and that designation is in effect on the date of sale of revenue
bonds issued under this part.
(2) As used in this subdivision, "median household income" means
the highest of (A) statewide median household income, (B) countywide
median household income, or (C) median family income for an area, as
determined by the United States Department of Housing and Urban
Development, with respect to either a standard metropolitan
statistical area or an area outside of a standard metropolitan
statistical area.
(f) Each city or county which that
finances housing pursuant to this part shall require each mortgagor
under the program to certify his or her intention to occupy the home
for a minimum of two years after receiving a home mortgage, with
appropriate exceptions in hardship cases determined by the city or
county.
(g) Each city and county may do any and all things necessary to
carry out the purposes and exercise the powers expressly granted by
this part.
SEC. 414. Section 53533 of the Health and Safety Code is amended
to read:
53533. (a) Money 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
50800) of Part 2) 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 subparagraph, the
department shall receive fifteen million dollars ($15,000,000) for
these purposes subject to the following conditions and requirements:
(i) The amount available to the department as a recipient shall be
limited to ten million seven hundred thousand dollars ($10,700,000)
prior to September 1, 2006. The department may receive up to four
million three hundred thousand dollars ($4,300,000) in additional
funds after that date and prior to July 1, 2007, to the extent that
unencumbered funds are available.
(ii) The department shall make at least eight million one hundred
fifty-nine thousand dollars ($8,159,000) available for flexible loans
and grants for projects that serve migratory agricultural workers
pursuant to subdivision (a) of Section 50517.10. These funds shall be
available for encumbrance until September 1, 2006.
(iii) Any funds allocated by this subparagraph remaining
unencumbered on July 1, 2007, shall revert for general use in the Joe
Serna, Jr. Farmworker Housing Grant Program.
(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) Except as provided in subparagraph (A) 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 of this code
, 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
sale 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 moneys
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. 415. Section 101630 of the Health and Safety Code is amended
to read:
101630. Notwithstanding any other provision of law:
(a) The state or any state agency may enter into contracts with
the authority for the authority to obtain or arrange for health care
under the authority's health care systems, for all persons who are
eligible to receive medical benefits under the Medi-Cal Act (Chapter
7 (commencing with Sec. Section 14000)
, of Part 3 .
of Division 9 , of the Welfare
and Institutions Code) in Monterey County through waiver, pilot
project, or otherwise.
(b) The County of Monterey or any city in the County of Monterey
may enter into contracts with the authority to obtain or provide
health care services 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.
(c) The department shall pursue waivers of federal law as
necessary, in order to carry out this section.
SEC. 416. Section 105195 of the Health and Safety Code is amended
to read:
105195. (a) Sections 105185 and 105190 shall apply to the
following industries:
(1) 1622 Bridges, tunnels, and elevated highways.
(2) 1721 Painting, paper hanging, and decorating.
(3) 1791 Structural steel erection.
(4) 1795 Wrecking and demolition work.
(5) 2759 Commercial printing.
(6) 2816 Inorganic pigments manufacture.
(7) 2819 Industrial inorganic chemicals.
(8) 2821 Plastics materials and resins.
(9) 2892 Explosives manufacture.
(10) 2899 Chemical preparations.
(11) 3069 Fabricated rubber products.
(12) 3087 Custom compounding of purchased plastics resins.
(13) 3089 Plastic products.
(14) 3229 Pressed and blown glass.
(15) 3231 Products of purchased glass.
(16) 3253 Ceramic walls and floor tiles.
(17) 3262 Vitreous china food utensils.
(18) 3269 Pottery products.
(19) 3313 Electrometalurgical
Electrometallurgical products.
(20) 3331 Primary copper.
(21) 3339 Primary nonferrous metals, except copper and aluminum.
(22) 3341 Secondary nonferrous metals.
(23) 3356 Nonferrous rolling, drawing, extruding.
(24) 3363 Aluminum die castings.
(25) 3364 Nonferrous die castings.
(26) 3365 Aluminum foundries.
(27) 3366 Copper foundries.
(28) 3369 Nonferrous foundries.
(29) 3399 Primary metal products.
(30) 3411 Metal cans manufacture.
(31) 3431 Metal sanitary ware.
(32) 3432 Plumbing fittings and brass goods.
(33) 3441 Fabricated structural metal.
(34) 3484 Small arms.
(35) 3491 Industrial valves.
(36) 3492 Fluid power valves and hose fittings.
(37) 3494 Valves and pipe fittings.
(38) 3496 Miscellaneous fabricated wire products.
(39) 3497 Metal foil and leaf.
(40) 3585 Refrigeration and heating equipment.
(41) 3599 Machinery, except electrical.
(42) 3624 Carbon and graphite products.
(43) 3661 Telephone and telegraph apparatus.
(44) 3662 Radio and television communication equipment.
(45) 3663 Radio and television equipment.
(46) 3669 Communications equipment.
(47) 3674 Semiconductors and related devices.
(48) 3691 Storage batteries.
(49) 3692 Primary batteries, dry and wet.
(50) 3699 Electrical equipment and supplies.
(51) 3711 Motor vehicles and car bodies.
(52) 3714 Motor vehicle parts and accessories.
(53) 3721 Aircraft.
(54) 3953 Marking devices.
(55) 3812 Search and navigation equipment.
(56) 3829 Measuring and controlling devices.
(57) 5064 Electrical appliances, television, and radios.
(58) 5093 Scrap and waste materials.
(59) 7538 General automotive repair shops.
(60) 7539 Automotive repair shops.
(61) 7997 Membership sports and recreation clubs.
(62) 7999 Amusement and recreation.
(b) (1) If the department determines that the potential for
occupational lead poisoning exists in industries not covered by this
section, based on new evidence, the department shall have the
authority to add Standard Industrial Classification codes by
regulation. Multiple case reports of occupational lead toxicity shall
be a criterion for adding Standard Industrial Classification codes
covered by this section for the purpose of fee assessment.
(2) If the department determines that lead use and lead exposure
no longer exist in an industry covered by this section, based on new
evidence, the department shall delete the Standard Industrial
Classification code or individual industries within a Standard
Industrial Classification code by regulation. If the department
otherwise determines that the potential for occupational lead
poisoning no longer exists in an industry covered by this section,
based on new evidence, the department shall have the authority to
delete Standard Industrial Classification codes or individual
industries with a Standard Industrial Classification code by
regulation. If the department determines that lead use and lead
exposure no longer exist in the operations of an employer in an
industry covered by this section, based on evidence submitted by the
employer, the department may waive the fee of that employer.
SEC. 417. Section 105215 of the Health and Safety Code is amended
to read:
105215. (a) Any public employee, as defined
in Section 811.4 of the Government Code, whose responsibilities
include matters relating to health and safety, protection of the
environment, or the use or transportation of any pesticide and who
knows, or has reasonable cause to believe, that a pesticide has been
spilled or otherwise accidentally released, shall promptly notify the
local health officer or the notification point specified in the
local hazardous materials response plan, where such a
the plan has been approved by the State Office
of Emergency Services and is in operation. The operator of the
notification point shall immediately notify the local health officer
of the pesticide spill report.
(b) The local health officer shall
immediately notify the county agricultural commissioner and, at his
or her discretion, shall immediately notify the Director of
Environmental Health Hazard Assessment of each report received.
Within seven days after receipt of any report, the local health
officer shall notify the Director of Pesticide Regulation, the
Director of Environmental Health Hazard Assessment, and the Director
of Industrial Relations, on a form prescribed by the Director of
Environmental Health Hazard Assessment, of each case reported to him
or her pursuant to this section.
(c) The Office of Environmental Health
Hazard Assessment shall designate a phone number or numbers for use
by local health officers in the immediate notification of the office
of a pesticide spill report. The office of shall
from time to time establish criteria for use by the local health
officers in determining whether the circumstances of a pesticide
spill warrants the immediate notification of the office.
SEC. 418. Section 105280 of the Health and Safety Code is amended
to read:
105280. For purposes of this chapter, the following definitions
apply:
(a) "Appropriate case management" means health care referrals,
environmental assessments, and educational activities, performed by
the appropriate person, professional, or entity, necessary to reduce
a child's exposure to lead and the consequences of the exposure, as
determined by the United States Centers for Disease Control, or as
determined by the department pursuant to Section 105300.
(b) "Lead poisoning" means the disease present when the
concentration of lead in whole venous blood reaches or exceeds levels
constituting a health risk, as specified in the most recent United
States Centers for Disease Control guidelines for lead poisoning as
determined by the department, or when the concentration of lead in
whole venous blood reaches or exceeds levels constituting a
heath health risk as determined by the
department pursuant to Section 105300.
(c) "Department" means the State Department of Health Services.
(d) "Health assessment" has the same meaning as prescribed in
Section 6800 of Title 17 of the California Code of Regulations.
(e) "Screen" means the medical procedure by which the
concentration of lead in whole venous blood is measured.
(f) "Health care" means the identification, through evaluation and
screening, if indicated, of lead poisoning, as well as any followup
medical treatment necessary to reduce the elevated blood lead levels.
(g) "Environmental lead contamination" means the persistent
presence of lead in the environment, in quantifiable amounts, that
results in ongoing and chronic exposure to children.
SEC. 419. Section 107040 of the Health and Safety Code is amended
to read:
107040. Whenever, in the judgment of the department, any person
has engaged in or is about to engage in any acts or practices that
constitute or will constitute a violation of any provision of the
Radiologic Technology Act (Section 27), or any rule, regulation, or
order issued thereunder, and at the request of the department, the
Attorney General may make application to the superior court for an
order enjoining this these acts or
practices, or for an order directing compliance, and upon a showing
by the department that the person has engaged in or is about to
engage in any acts or practices, a temporary or permanent injunction,
restraining order, or other order may be granted.
SEC. 420. Section 107065 of the Health and Safety Code is amended
to read:
107065. Every holder of a certificate or a permit issued pursuant
to the Radiologic Tecnology Technology
Act (Section 27) may be disciplined as provided in Sections 107065
and 107670. The proceedings under Sections 107065 and 107670 shall be
conducted in accordance with Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code, and
the department shall have all of the powers granted therein.
SEC. 421. Section 107080 of the Health and Safety Code is amended
to read:
107080. (a) The application fee for any certificate or permit
issued pursuant to the Radiologic Tecnology
Technology Act (Section 27) shall be established by the
department in an amount as it deems reasonably
necessary to carry out the purpose of that act.
(b) The fee for any examination conducted pursuant to the
Radiologic Tecnology Technology Act
(Section 27) , after failure of that examination within
the previous 12 months , shall be fixed by the department
in an amount it deems reasonably necessary to carry out that act.
(c) The annual renewal fee for each certificate or permit shall be
fixed by the department in an amount it deems reasonably necessary
to carry out the Radiologic Tecnology
Technology Act (Section 27) .
(d) The penalty fee for renewal of any certificate or permit if
application is made after its date of expiration shall be five
dollars ($5) and shall be in addition to the fee for renewal
prescribed by subdivision (c).
(e) The fee for a duplicate certificate or permit shall be one
dollar ($1).
(f) No fee shall be required for a certificate or permit or a
renewal thereof except as prescribed in the Radiologic Technology Act
(Section 27).
SEC. 422. Section 108310 of the Health and Safety Code is amended
to read:
108310. As under For the purposes of
this article , the following terms have the following
meanings :
(a) "Manufacturer" includes an importer for resale.
(b) A dealer who sells at wholesale an article or substance shall,
with respect to that sale, be considered the distributor of that
article or substance.
SEC. 423. Section 109350 of the Health and Safety Code is amended
to read:
109350. The department may direct that any individual, person,
firm, association, or other entity shall cease and desist any further
prescribing, recommending , or use of any drug, medicine,
compound , or device for that
which no application has been approved under this article and
Article 1 (commencing with Section 109250) unless its use is exempt
under Section 109325 or Section 109330.
SEC. 424. Section 109360 of the Health and Safety Code is amended
to read:
109360. Any person against whom an injunction or cease and desist
order has been issued, under this article and Article 1 (commencing
with Section 109250), may not undertake to use in the diagnosis,
treatment, alleviation , or cure of cancer any new,
experimental, untested, or secret drug, medicine, compound, or device
for that which there is no approved
application on file or that does not qualify for an exemption,
without first submitting an application to the department.
SEC. 425. Section 111080 of the Health and Safety Code is amended
to read:
111080. The quality and labeling standards requirements for
bottled water and vended water, including mineral water, shall
include all standards prescribed by Section 165.110 of Title 21 of
the Code of Federal Regulations. In addition, bottled water and
vended water, when bottled, shall comply with the following quality
standards and any additional quality standards adopted by regulation
that the department determines are reasonably necessary to protect
the public health:
(a) Bottled water and vended water shall meet all maximum
contaminant levels set for public drinking water that the department
determines are necessary or appropriate so that bottled water may
present no adverse effect on public health. New or revised allowable
levels or monitoring provisions adopted for bottled water by the
United States Food and Drug Administration under the federal Food,
Drug and Cosmetic Act that are more stringent
than the state requirements for bottled water
are incorporated into this chapter and are effective on the date
established by the federal provisions unless otherwise established by
regulations of the department.
(b) Bottled and vended water shall not exceed 10 parts per billion
of total triahalomethanes tri
halomethanes or five parts per billion of lead unless the
department establishes a lower level by regulation.
(c) Bottled and vended water shall contain no chemicals in
concentrations that the United States Food and Drug Administration or
the state department has determined may have an adverse effect on
public health.
SEC. 426. Section 112025 of the Health and Safety Code is amended
to read:
112025. No employee or other person shall expectorate or
discharge any substance from his or her nose or mouth on the floor or
interior side wall of any building, room , basement, or
cellar where the production, preparation, manufacture, packing,
storing, or sale of any food is conducted.
SEC. 427. Section 112030 of the Health and Safety Code is amended
to read:
112030. No person shall, nor shall any person be allowed to,
reside or sleep in any room of a bake-shop, public
diningroom dining room , hotel or restaurant
kitchen, confectionery, or other place where food is prepared,
produced, manufactured, served, or sold.
SEC. 428. Section 113843 of the Health and Safety Code, as added
by Section 2 of Chapter 874 of the Statutes of 1996, is repealed.
113843. "Potable water" means, for the purposes of this chapter,
water that complies with the requirements for water from transient
noncommunity water systems under the California Safe Drinking Water
Act.
SEC. 429. Section 113844 of the Health and Safety Code is amended
to read:
113844. "Potable water" means water that complies with the
standards for transient noncommunity water systems pursuant to the
California Safe Drinking Water Act (Chapter 4 (commencing with
Section 116275) 116270) of Part 12), to
the extent permitted by federal law.
SEC. 430. Section 113955 of the Health and Safety Code is amended
to read:
113955. The hearing officer shall issue a written notice of
decision to the permittee within five working days following the
hearing. In the event of a suspension or revocation, the notice shall
specify the acts or omissions with that
which the permittee is charged, and shall state the terms of
the suspension or that the permit has been revoked.
SEC. 431. Section 114400 of the Health and Safety Code is amended
to read:
114400. (a) All utensils and equipment shall be scrapped
scraped , cleaned, or sanitized as
circumstances require.
(b) Restricted food service transient occupancy establishments
shall comply with the provisions of subdivisions
(b) to (e), inclusive, of Section 114090 or, at the option of the
owner or operator of the establishment, shall utilize a domestic or
commercial dishwasher for the purpose of cleaning and sanitizing
multiservice kitchen utensils and multiservice consumer utensils
; provided, however, that if the
dishwasher is capable of providing heat to the surface of the
utensils of a temperature of at least 165 degrees Fahrenheit. Except
as otherwise set forth in this subdivision, restricted food service
transient occupancy establishments shall comply with Section 114090.
SEC. 432. Section 115040 of the Health and Safety Code is amended
to read:
115040. (a) The license designee shall file periodic financial
reports with the department as directed by the department. These
reports shall provide detailed information on past and projected
expenditures for development and operation of the low-level
radioactive waste disposal site according to progammatic
programmatic function, including, but not
limited to, all of the following:
(1) Program management.
(2) Candidate sites selection.
(3) Site characterization.
(4) Environmental.
(5) Public and agency involvement.
(6) Licensing and permitting.
(7) Site development.
(8) Land acquisition.
(9) Financing.
(10) Operations.
(b) The license designee shall file reports with the department,
as directed by the department, that identify, quantify, and explain
major causes of actual and projected cost overruns and cost underruns
with regard to the cost projections provided in the statement of
capabilities and notice of intent.
(c) The Legislature finds and declares that the purpose of this
section is to identify minimum financial reporting requirements for
the costs of developing and operating the state's low-level
radioactive waste disposal facility. This section does not limit the
authority of the department to require the license designee to
furnish any additional information that the department determines to
be necessary to fulfill its duties under this chapter, including
Section 115030.
SEC. 433. Section 115061 of the Health and Safety Code is amended
to read:
115061. (a) In order to better protect the public and radiation
workers from unnecessary exposure to radiation and to reduce the
occurrence of misdiagnosis, the Radiologic Health Branch within the
State Department of Health Services shall adopt regulations that
require personnel and facilities using radiation-producing equipment
for medical and dental purposes to maintain and implement medical and
dental quality assurance standards that protect the public health
and safety by reducing unnecessary exposure to ionizing radiation
while ensuring that images are of diagnostic quality. The standards
shall require quality assurance tests to be performed on all
radiation-producing equipment used for medical and dental purposes.
(b) The Radiological Radiologic
Health Branch shall adopt the regulations described in subdivision
(a) and provide the regulations to the health committees of the
Assembly and the Senate on or before January 1, 2008.
(c) For purposes of this section , "medical and dental
quality assurance" means the detection of a change in X-ray and
ancillary equipment that adversely affects the quality of films or
images and the radiation dose to the patients, and the correction of
this change.
SEC. 434. Section 115255 of the Health and Safety Code is amended
to read:
115255. The provisions of the Southwestern Low-Level Radioactive
Waste Disposal Compact are as follows:
Article 1. Compact Policy and Formation
The party states hereby find and declare all of the following:
(A) The United States Congress, by enacting the Low-Level
Radioactive Waste Policy Act, Public Law 96-573, as amended by the
Low-Level Radioactive Waste Policy Amendments Act of 1985 (42 U.S.C.
Sec. 2021b to 2021j, incl.), has encouraged the use of interstate
compacts to provide for the establishment and operation of facilities
for regional management of low-level radioactive waste.
(B) It is the purpose of this compact to provide the means for
such a cooperative effort between or among party states to protect
the citizens of the states and the states' environments.
(C) It is the policy of party states to this compact to encourage
the reduction of the volume of low-level radioactive waste requiring
disposal within the compact region.
(D) It is the policy of the party states that the protection of
the health and safety of their citizens and the most ecological and
economical management of low-level radioactive wastes can be
accomplished through cooperation of the states by minimizing the
amount of handling and transportation required to dispose of these
wastes and by providing facilities that serve the compact region.
(E) Each party state, if an agreement state pursuant to Section
2021 of Title 42 of the United States Code, or the Nuclear Regulatory
Commission if not an agreement state, is responsible for the primary
regulation of radioactive materials within its jurisdiction.
Article 2. Definitions
As used in this compact, unless the context clearly indicates
otherwise, the following definitions apply:
(A) "Commission" means the Southwestern Low-Level Radioactive
Waste Commission established in Article 3 of this compact.
(B) "Compact region" or "region" means the combined geographical
area within the boundaries of the party states.
(C) "Disposal" means the permanent isolation of low-level
radioactive waste pursuant to requirements established by the Nuclear
Regulatory Commission and the Environmental Protection Agency under
applicable laws, or by a party state if that state hosts a disposal
facility.
(D) "Generate," when used in relation to low-level radioactive
waste, means to produce low-level radioactive waste.
(E) "Generator" means a person whose activity, excluding the
management of low-level radioactive waste, results in the production
of low-level radioactive waste.
(F) "Host county" means a county, or other similar political
subdivision of a party state, in which a regional disposal facility
is located or being developed.
(G) "Host state" means a party state in which a regional disposal
facility is located or being developed. The State of California is
the host state under this compact for the first 30 years from the
date the California regional disposal facility commences operations.
(H) "Institutional control period" means that period of time in
which the facility license is transferred to the disposal site owner
in compliance with the appropriate regulations for long-term
observation and maintenance following the postclosure period.
(I) "Low-level radioactive waste" means regulated radioactive
material that meets all of the following requirements:
(1) The waste is not high-level radioactive waste, spent nuclear
fuel, or byproduct material (as defined in Section 11e(2) of the
Atomic Energy Act of 1954 (42 U.S.C. Sec. 2014(e)(2))).
(2) The waste is not uranium mining or mill tailings.
(3) The waste is not any waste for which the federal government is
responsible pursuant to subdivision (b) of Section 3 of the
Low-Level Radioactive Waste Policy Amendments Act of 1985 (42 U.S.C.
Sec. 2021c(b)).
(4) The waste is not an alpha emitting transuranic nuclide with a
half-life greater than five years and with a concentration greater
than 100 nanocuries per gram, or Plutonium-241 with a concentration
greater than 3,500 nanocuries per gram, or Curium-242 with a
concentration greater than 20,000 nanocuries per gram.
(J) "Management" means collection, consolidation, storage,
packaging, or treatment.
(K) "Major generator state" means a party state that generates 10
percent of the total amount of low-level radioactive waste produced
within the compact region and disposed of at the regional disposal
facility.
If no party state other than California generates at least 10
percent of the total amount, "major generator state" means the party
state which is second to California in the amount of waste produced
within the compact region and disposed of at the regional disposal
facility.
(L) "Operator" means a person who operates a regional disposal
facility.
(M) "Party state" means any state that has become a party in
accordance with Article 7 of this compact.
(N) "Person" means an individual, corporation, partnership, or
other legal entity, whether public or private.
(O) "Postclosure period" means that period of time after
completion of closure of a disposal facility during which the
licensee shall observe, monitor, and carry out necessary maintenance
and repairs at the disposal facility to assure that the disposal
facility will remain stable and will not need ongoing active
maintenance. This period ends with the beginning of the institutional
control period.
(P) "Regional disposal facility" means a nonfederal low-level
radioactive waste disposal facility established and operated under
this compact.
(Q) "Site closure and stabilization" means the activities of the
disposal facility operator taken at the end of the disposal facility'
s operating life to assure the continued protection of the public
from any residual radioactivity or other potential hazards present at
the disposal facility.
(R) "Transporter" means a person who transports low-level
radioactive waste.
(S) "Uranium mine and mill tailings" means waste resulting from
mining and processing of ores containing uranium.
Article 3. The Commission
(A) There is hereby established the Southwestern Low-Level
Radioactive Waste Commission.
(1) The commission shall consist of one voting member from each
party state to be appointed by the Governor, confirmed by the Senate
of that party state, and to serve at the pleasure of the Governor of
each party state, and one voting member from the host county. The
appointing authority of each party state shall notify the commission
in writing of the identity of the member and of any alternates. An
alternate may act in the member's absence.
(2) The host state shall also appoint that number of additional
voting members of the commission that is necessary for the host state'
s members to compose at least 51 percent of the membership on the
commission. The host state's additional members shall be appointed by
the host state Governor and confirmed by the host state Senate.
If there is more than one host state, only the state in which is
located the regional disposal facility actively accepting low-level
radioactive waste pursuant to this compact may appoint these
additional members.
(3) If the host county has not been selected at the time the
commission is appointed, the Governor of the host state shall appoint
an interim local government member, who shall be an elected
representative of a local government. After a host county is
selected, the interim local government member shall resign and the
Governor shall appoint the host county member pursuant to paragraph
(4).
(4) The Governor shall appoint the host county member from a list
of at least seven candidates compiled by the board of supervisors of
the host county.
(5) In recommending and appointing the host county member pursuant
to paragraph (4), the board of supervisors and the Governor shall
give first consideration to recommending and appointing the member of
the board of supervisors in whose district the regional disposal
facility is located or being developed. If the board of supervisors
of the host county does not provide a list to the Governor of at
least seven candidates from which to choose, the Governor shall
appoint a resident of the host county as the host county member.
(6) The host county member is subject to confirmation by the
Senate of that party state and shall serve at the pleasure of the
Governor of the host state.
(B) The commission is a legal entity separate and distinct from
the party states and shall be so liable for its actions. Members of
the commission shall not be personally liable for actions taken in
their official capacity. The liabilities of the commission shall not
be deemed liabilities of the party states.
(C) The commission shall conduct its business affairs pursuant to
the laws of the host state and disputes arising out of commission
action shall be governed by the laws of the host state. The
commission shall be located in the capital city of the host state in
which the regional disposal facility is located.
(D) The commission's records shall be subject to the host state's
public records law, and the meetings of the commission shall be open
and public in accordance with the host state's open meeting law.
(E) The commission members are public officials of the appointing
state and shall be subject to the conflict of interest laws, as well
as any other law, of the appointing state. The commission members
shall be compensated according to the appointing state's law.
(F) Each commission member is entitled to one vote. A majority of
the commission constitutes a quorum. Unless otherwise provided in
this compact, a majority of the total number of votes on the
commission is necessary for the commission to take any action.
(G) The commission has all of the following duties and authority:
(1) The commission shall do, pursuant to the authority granted by
this compact, whatever is reasonably necessary to ensure that
low-level radioactive wastes are safely disposed of and managed
within the region.
(2) The commission shall meet at least once a year and otherwise
as business requires.
(3) The commission shall establish a compact surcharge to be
imposed upon party state generators. The surcharge shall be based
upon the cubic feet of low-level radioactive waste and the
radioactivity of the low-level radioactive waste and shall be
collected by the operator of the disposal facility.
The host state shall set, and the commission shall impose, the
surcharge after congressional approval of the compact. The amount of
the surcharge shall be sufficient to establish and maintain at a
reasonable level funds for all of the following purposes:
(a) The activities of the commission and commission staff.
(b) At the discretion of the host state, a third-party liability
fund to provide compensation for injury to persons or property during
the operational, closure, stabilization, and postclosure and
institutional control periods of the regional disposal facility. This
subparagraph does not limit the responsibility or liability of the
operator, who shall comply with any federal or host state statutes or
regulations regarding third-party liability claims.
(c) A local government reimbursement fund, for the purpose of
reimbursing the local government entity or entities hosting the
regional disposal facility for any costs or increased burdens on the
local governmental entity for services, including, but not limited
to, general fund expenses, the improvement and maintenance of roads
and bridges, fire protection, law enforcement, monitoring by local
health officials, and emergency preparation and response related to
the hosting of the regional disposal facility.
(4) The surcharges imposed by the commission for purposes of
subparagraphs (b) and (c) of paragraph (3) and surcharges pursuant to
paragraph (3) of subdivision (E) of Article 4 shall be transmitted
on a monthly basis to the host state for distribution to the proper
accounts.
(5) The commission shall establish a fiscal year that conforms to
the fiscal years of the party states to the extent possible.
(6) The commission shall keep an accurate account of all receipts
and disbursements. An annual audit of the books of the commission
shall be conducted by an independent certified public accountant, and
the audit report shall be made a part of the annual report of the
commission.
(7) The commission shall prepare and include in the annual report
a budget showing anticipated receipts and disbursements for the
subsequent fiscal year.
(8) The commission may accept any grants, equipment, supplies,
materials, or services, conditional or otherwise, from the federal or
state government. The nature, amount and condition, if any, of any
donation, grant, or other resources accepted pursuant to this
paragraph and the identity of the donor or grantor shall be detailed
in the annual report of the commission.
However, the host state shall receive, for the uses specified in
subparagraph (E) of paragraph (2) of subsection (d) of Section 2021e
of Title 42 of the United States Code, any payments paid from the
special escrow account for which the Secretary of Energy is trustee
pursuant to subparagraph (A) of paragraph (2) of subsection (d) of
Section 2021 (e) of Title 42 of the United States Code.
(9) The commission shall submit communications to the governors
and to the presiding officers of the legislatures of the party states
regarding the activities of the commission, including an annual
report to be submitted on or before January 15 of each year. The
commission shall include in the annual report a review of, and
recommendations for, low-level radioactive waste disposal methods
which are alternative technologies to the shallow land burial of
low-level radioactive waste.
(10) The commission shall assemble and make available to the party
states, and to the public, information concerning low-level
radioactive waste management needs, technologies, and problems.
(11) The commission shall keep a current inventory of all
generators within the region, based upon information provided by the
party states.
(12) The commission shall keep a current inventory of all regional
disposal facilities, including information on the size, capacity,
location, specific low-level radioactive wastes capable of being
managed, and the projected useful life of each regional disposal
facility.
(13) The commission may establish advisory committees for the
purpose of advising the commission on the disposal and management of
low-level radioactive waste.
(14) The commission may enter into contracts to carry out its
duties and authority, subject to projected resources. No contract
made by the commission shall bind a party state.
(15) The commission shall prepare contingency plans, with the
cooperation and approval of the host state, for the disposal and
management of low-level radioactive waste in the event that any
regional disposal facility should be closed.
(16) The commission may sue and be sued and, when authorized by a
majority vote of the members, may seek to intervene in an
administrative or judicial proceeding related to this compact.
(17) The commission shall be managed by an appropriate staff,
including an executive director. Notwithstanding any other provision
of law, the commission may hire or retain, or both, legal counsel.
(18) The commission may, subject to applicable federal and state
laws, recommend to the appropriate host state authority suitable land
and rail transportation routes for low-level radioactive waste
carriers.
(19) The commission may enter into an agreement to import
low-level radioactive waste into the region only if both of the
following requirements are met:
(a) The commission approves the importation agreement by a
two-thirds vote of the commission.
(b) The commission and the host state assess the affected regional
disposal facilities' capability to handle imported low-level
radioactive wastes and any relevant environmental or economic
factors, as defined by the host state's appropriate regulatory
authorities.
(20) The commission may, upon petition, allow an individual
generator, a group of generators, or the host state of the compact,
to export low-level radioactive wastes to a low-level radioactive
waste disposal facility located outside the region. The commission
may approve the petition only by a two-thirds vote of the commission.
The permission to export low-level radioactive wastes shall be
effective for that period of time and for the amount of low-level
radioactive waste, and subject to any other term or condition, which
may be determined by the commission.
(21) The commission may approve, only by a two-thirds vote of the
commission, the exportation outside the region of material, which
otherwise meets the criteria of low-level radioactive waste, if the
sole purpose of the exportation is to process the material for
recycling.
(22) The commission shall, not later than 10 years before the
closure of the initial or subsequent regional disposal facility,
prepare a plan for the establishment of the next regional disposal
facility.
Article 4. Rights, Responsibilities, and Obligations of Party
States
(A) There shall be regional disposal facilities sufficient to
dispose of the low-level radioactive waste generated within the
region.
(B) Low-level radioactive waste generated within the region shall
be disposed of at regional disposal facilities and each party state
shall have access to any regional disposal facility without
discrimination.
(C) (1) Upon the effective date of this compact, the State of
California shall serve as the host state and shall comply with the
requirements of subdivision (E) for at least 30 years from the date
the regional disposal facility begins to accept low-level radioactive
waste for disposal. The extension of the obligation and duration
shall be at the option of the State of California.
If the State of California does not extend this obligation, the
party state, other than the State of California, which is the largest
major generator state shall then serve as the host state for the
second regional disposal facility.
The obligation of a host state which hosts the second regional
disposal facility shall also run for 30 years from the date the
second regional disposal facility begins operations.
(2) The host state may close its regional disposal facility when
necessary for public health or safety.
(D) The party states of this compact cannot be members of another
regional low-level radioactive waste compact entered into pursuant to
the Low-Level Radioactive Waste Policy Act, as amended by the
Low-Level Radioactive Waste Policy Amendments Act of 1985 (42 U.S.C.
Secs. 2021b to 2021j, incl.).
(E) A host state shall do all of the following:
(1) Cause a regional disposal facility to be developed on a timely
basis.
(2) Ensure by law, consistent with any applicable federal laws,
the protection and preservation of public health and safety in the
siting, design, development, licensing, regulation, operation,
closure, decommissioning, and long-term care of the regional disposal
facilities within the state.
(3) Ensure that charges for disposal of low-level radioactive
waste at the regional disposal facility are reasonably sufficient to
do all of the following:
(a) Ensure the safe disposal of low-level radioactive waste and
long-term care of the regional disposal facility.
(b) Pay for the cost of inspection, enforcement, and surveillance
activities at the regional disposal facility.
(c) Assure that charges are assessed without discrimination as to
the party state of origin.
(4) Submit an annual report to the commission on the status of the
regional disposal facility including projections of the facility's
anticipated future capacity.
(5) The host state and the operator shall notify the commission
immediately upon the occurrence of any event which could cause a
possible temporary or permanent closure of a regional disposal
facility.
(F) Each party state is subject to the following duties and
authority:
(1) To the extent authorized by federal law, each party state shall
develop and enforce procedures requiring low-level radioactive waste
shipments originating within its borders and destined for a regional
disposal facility to conform to packaging and transportation
requirements and regulations. These procedures shall include, but are
not limited to, all of the following requirements:
(a) Periodic inspections of packaging and shipping practices.
(b) Periodic inspections of low-level radioactive waste containers
while in the custody of transporters.
(c) Appropriate enforcement actions with respect to violations.
(2) A party state may impose a surcharge on the low-level
radioactive waste generators within the state to pay for activities
required by paragraph (1).
(3) To the extent authorized by federal law, each party state
shall, after receiving notification from a host state that a person
in a party state has violated packaging, shipping, or transportation
requirements or regulations, take appropriate actions to ensure that
these violations do not continue. Appropriate actions may include,
but are not limited to, requiring that a bond be posted by the
violator to pay the cost of repackaging at the regional disposal
facility and prohibit future shipments to the regional disposal
facility.
(4) Each party state shall maintain a registry of all generators
within the state that may have low-level radioactive waste to be
disposed of at a regional disposal facility, including, but not
limited to, the amount of low-level radioactive waste and the class
of low-level radioactive waste generated by each generator.
(5) Each party state shall encourage generators within its borders
to minimize the volume of low-level radioactive waste requiring
disposal.
(6) Each party state may rely on the good faith performance of the
other party states to perform those acts which are required by this
compact to provide regional disposal facilities, including the use of
the regional disposal facilities in a manner consistent with this
compact.
(7) Each party state shall provide the commission with any data
and information necessary for the implementation of the commission's
responsibilities, including taking those actions necessary to obtain
this data or information.
(8) Each party state shall agree that only low-level radioactive
waste generated within the jurisdiction of the party states shall be
disposed of in the regional disposal facility, except as provided in
paragraph (19) of subdivision (G) of Article 3.
(9) Each party state shall agree that if there is any injury to
persons on property resulting from the operation of a regional
disposal facility, the damages resulting from the injury may be paid
from the third-party liability fund pursuant to subparagraph (b) of
paragraph (3) of subdivision (G) of Article 3, only to the extent
that the damages exceed the limits of liability insurance carried by
the operator. No party state, by joining this compact, assumes any
liability resulting from the siting, operation, maintenance,
long-term care, or other activity relating to a regional facility,
and no party state shall be liable for any harm or damage resulting
from a regional facility not located within the state.
Article 5. Approval of Regional Facilities
A regional disposal facility shall be approved by the host state
in accordance with its laws. This compact does not confer any
authority on the commission regarding the siting, design,
development, licensure, or other regulation, or the operation,
closure, decommissioning, or long-term care of, any regional disposal
facility within a party state.
Article 6. Prohibited Acts and Penalties
(A) No person shall dispose of low-level radioactive waste within
the region unless the disposal is at a regional disposal facility,
except as otherwise provided in paragraphs (20) and (21) of
subdivision (G) of Article 3.
(B) No person shall dispose of or manage any low-level radioactive
waste within the region unless the low-level radioactive waste was
generated within the region, except as provided in paragraphs (19),
(20), and (21) of subdivision (G) of Article 3.
(C) Violations of this section shall be reported to the
appropriate law enforcement agency within the party state's
jurisdiction.
(D) Violations of this section may result in prohibiting the
violator from disposing of low-level radioactive waste in the
regional disposal facility, as determined by the commission or the
host state.
Article 7. Eligibility, Entry into Effect, Congressional
Consent, Withdrawal, Exclusion
(A) The States of Arizona, North Dakota, South Dakota, and
California are eligible to become parties to this compact. Any other
state may be made eligible by a majority vote of the commission and
ratification by the legislatures of all of the party states by
statute, and upon compliance with those terms and conditions for
eligibility which the host state may establish. The host state may
establish all terms and conditions for the entry of any state, other
than the states named in this subparagraph, as a member of this
compact.
(B) Upon compliance with the other provisions of this compact, an
eligible state may become a party state by legislative enactment of
this compact or by executive order of the governor of the state
adopting this compact. A state becoming a party state by executive
order shall cease to be a party state upon adjournment of the first
general session of its legislature convened after the executive order
is issued, unless before the adjournment the legislature enacts this
compact.
(C) A party state, other than the host state, may withdraw from
the compact by repealing the enactment of this compact, but this
withdrawal shall not become effective until two years after the
effective date of the repealing legislation. If a party state which
is a major generator of low-level radioactive waste voluntarily
withdraws from the compact pursuant to this subdivision, that state
shall make arrangements for the disposal of the other party states'
low-level radioactive waste for a time period equal to the
period of time it was a member of this compact.
If the host state withdraws from the compact, the withdrawal shall
not become effective until five years after the effective date of
the repealing legislation.
(D) A party state may be excluded from this compact by a
two-thirds vote of the commission members, acting in a meeting, if
the state to be excluded has failed to carry out any obligations
required by compact.
(E) This compact shall take effect upon the enactment by statute
by the legislatures of the State of California and at least one other
eligible state and upon the consent of Congress and shall remain in
effect until otherwise provided by federal law. This compact is
subject to review by Congress and the withdrawal of the consent of
Congress every five years after its effective date, pursuant to
federal law.
Article 8. Construction and Severability
(A) The provisions of this compact shall be broadly construed to
carry out the purposes of the compact, but the sovereign powers of a
party state shall not be infringed unnecessarily.
(B) This compact does not affect any judicial proceeding pending
on the effective date of this compact.
(C) If any provision of this compact or the application thereof to
any person or circumstances is held invalid, that invalidity shall
not affect other provisions or applications of the compact that can
be given effect without the invalid provision or application, and to
this end the provisions of this compact are severable.
(D) Nothing in this compact diminishes or otherwise impairs the
jurisdiction, authority, or discretion of either of the following:
(1) The Nuclear Regulatory Commission pursuant to the Atomic
Energy Act of 1954, as amended (42 U.S.C. Sec. 2011 et seq.).
(2) An agreement state under Section 274 of the Atomic Energy Act
of 1954, as amended (42 U.S.C. Sec. 2021).
(E) Nothing in this compact confers any new authority on the
states or commission to do any of the following:
(1) Regulate the packaging or transportation of low-level
radioactive waste in a manner inconsistent with the regulations of
the Nuclear Regulatory Commission or the United States Department of
Transportation.
(2) Regulate health, safety, or environmental hazards from source,
byproduct, or special nuclear material.
(3) Inspect the activities of licensees of the agreement states or
of the Nuclear Regulatory Commission.
SEC. 435. Section 116050 of the Health and Safety Code is amended
to read:
116050. Except as provided in Section 18930, the department shall
make and enforce regulations pertaining to public swimming pools as
it deems properand proper and shall
enforce building standards published in the State Building Standards
Code relating to public swimming pools; provided, that no rule or
regulation as to design or construction of pools shall apply to any
pool that has been constructed before the adoption of the regulation,
if the pool as constructed is reasonably safe and the manner of the
construction does not preclude compliance with the requirements of
the regulations as to bacteriological and chemical quality and
clarity of the water in the pool. The department shall adopt and
submit building standards for approval pursuant to Chapter 4
(commencing with Section 18935) of Part 2.5 of Division 13
of this code for the purposes described in this section.
SEC. 436. Section 116660 of the Health and Safety Code is amended
to read:
116660. (a) Any person who operates a public water system without
having an unrevoked permit to do so, may be enjoined from so doing
by any court of competent jurisdiction at the suit of the department.
(b) When the department determines that any person has engaged in
or is engaged in any act or practice that constitutes a violation of
this chapter, or any regulation, permit, standard, or order issued or
adopted thereunder, the department may bring an action in the
superior court for an order enjoining the practices or for an order
directing compliance.
(c) Upon a showing by the department of any violation set forth in
subsection (b); subdivision (b), the
superior court shall enjoin the practices and may do any of the
following:
(1) Enforce a reasonable plan of compliance, including the
appointment of a competent person, to be approved by the department,
and paid by the operator of the public water system, who shall take
charge of and operate the system so as to secure compliance.
(2) Enjoin further service connections to the public water system.
(3) Afford any further relief that may be required to insure
compliance with this chapter.
SEC. 437. Section 117100 of the Health and Safety Code is amended
to read:
117100. The ballot for the election authorized by Section 117090
shall contain the instructions required by law to be printed thereon
and in addition thereto the following:
-------------------------------------+-------+----
Shall the (insert name of | |
governmental agency) | |
| YES |
allow fishing in the (name of body | |
of water) | |
-------------------------------------+-------+----
and other recreational uses in the | |
surrounding | |
| |
area subject to the regulations of | NO |
the State | |
| |
Depar t ment of Health Services
| |
-------------------------------------+-------+----
If the governmental agency concludes that a bond issue is required
to pay for the capital improvements included in the coordinated plan
as approved by the amended permit, there shall also be printed on
the ballot, immediately following the ballot proposition aforesaid,
the following proposition to be voted on by the constituents of the
governmental agency:
-------------------------------------+-------+----
Shall the (insert name of | |
governmental agency) | |
| |
incur a bonded indebtedness in the | |
principal | |
| YES |
amount of $____ for providing the | |
capital | |
| |
improvements for fishing in the | |
(name of body | |
-------------------------------------+-------+----
of water) and other recreational | |
uses in the | |
| |
surrounding land area, subject to | NO |
the regulations | |
| |
of the State Department of Health | |
Services | |
-------------------------------------+-------+----
SEC. 438. Section 120425 of the Health and Safety Code is amended
to read:
120425. All moneys appropriated to the department for the
purposes of this section and Section 120420 shall be made available
to local health departments, as defined in Section 101185, or to
areawide associations of local health departments. All moneys
received by the local departments or areawide associations shall be
utilized only for the purchase of rubella vaccines, other necessary
supplies and equipment for rubella immunization campaigns, and
promotional costs of such these
campaigns. No moneys appropriated for the purpose of this section and
Section 120420 shall be used by the department or by any local
department or areawide association for administrative purposes, and
no such these moneys may not
be used to supplant or support local health department clinics and
programs already regularly operated by such the
departments, but may be used only for additional county or areawide
rubella immunization campaigns. All moneys appropriated for the
purposes of this section and Section 120420 shall be expended by
March 31, 1971.
SEC. 439. Section 120830 of the Health and Safety Code is amended
to read:
120830. (a) Pilot projects to demonstrate
the cost effectiveness of home health, attendant, or hospice care
shall be initiated through a block grant program, as described in
this section.
(a)
(b) The state director shall designate the contractors
and the amounts that contractors will receive for the block grant
direct service demonstration projects.
(b)
(c) An amount of not more than 10 percent of the grant
may be retained by contractors for administrative overhead.
Contractors accepting block grant funds shall compile comparative
cost data reports for transmission to the department and the
Legislature. Reports shall be made semiannually until the conclusion
of the project.
(c)
(d) Contractors receiving direct service block grants
shall:
(1) Encourage broad-based community involvement and support for
AIDS programs and involve charitable, other nonprofit, and other
agencies as well as health care professionals as providers of
essential services.
(2) Ensure the proposed services are not duplicated in the
community and are based on the needs of people with AIDS ,
or AIDS-related conditions, at-risk communities,
their families , or others affected by AIDS.
(3) Make maximum use of other federal, state, and local funds and
programs.
(4) Provide services that are culturally and linguistically
appropriate to the population served.
(c)
(e) Counties with existing programs of demonstrated
effectiveness in AIDS education or services shall receive equal
consideration with other applicants and shall not be penalized when
awarding funds pursuant to this chapter with respect to the proposed
expansion of their programs.
(d)
(f) Contractors shall develop a comprehensive service
system including, but not limited to, the following essential
services, that can be provided either directly by the contractors or
indirectly through a referral network arranged by the contractor:
(1) Provision for hospice, skilled nursing facility, home health
care, and homemaker chore services.
(2) Individual consultation and health planning and assessment.
(3) Information for people with AIDS or AIDS-related conditions
regarding death and dying.
(4) Evaluation and referral services for medical care.
(5) Referral services for mental health services, as appropriate.
(6) Assistance in applying for financial aid or social services
that are available and for which clients qualify.
The system of essential services developed by a contractor shall
offer maximum opportunity for involvement of family, friends,
and domestic partners and of nonprofit and charitable
organizations in preventing the severe, adverse health and social
consequences that result from being diagnosed with AIDS or
AIDS-related conditions.
(e)
(g) The direct service program for provision of
essential services shall ensure both of the following :
(1) An ongoing quality assurance program.
(2) Confidentiality assurances and methods for developing
interagency confidentiality agreements.
SEC. 440. Section 120875 of the Health and Safety Code is amended
to read:
120875. The State Department of Education shall provide
information to school districts on acquired immune deficiency
syndrome (AIDS), on AIDS-related conditions, and on Hepatitis B. This
information shall include, but not be limited to, any appropriate
methods school employees may employ to prevent exposure to AIDS and
Hepatitis B, including information concerning the availability of a
vaccine to prevent contraction of Hepatitis B, and that the cost of
vaccination may be covered by the health plan benefits of the
employees. This information shall be compiled and updated annually,
or if there is new information, more frequently, by the State
Department of Education in conjunction with the department
department and in consultation with the California
Conference of Local Health Officers. In order to reduce costs, this
information may be included as an insert with other regular mailings
to the extent practicable, and the information required to be
provided on Hepatitis B shall be provided in conjunction with the
information required to be provided on AIDS.
SEC. 441. Section 121110 of the Health and Safety Code is amended
to read:
121110. (a) Any person who willfully or maliciously discloses the
content of any confidential research record, to any third party,
except pursuant to this chapter, 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 subject of
the test.
(b) Any person who maliciously discloses the content of any
confidential research record, to a third party, except pursuant to
this chapter, that results in economic, bodily, or psychological harm
to the research subject, is guilty of a misdemeanor, punishable by
imprisonment in the a county jail for a
period not to exceed one year or , a
fine of not to exceed ten thousand dollars ($10,000) , or
both that imprisonment and fine .
(c) Any person who commits any act described in subdivision (a) or
(b) shall be liable to the subject for all actual damages for
economic, bodily, or psychological harm that is a proximate result of
the act.
(d) Any person who negligently or willfully violates Section
121105 is guilty of an infraction punishable by a fine of twenty-five
dollars ($25).
(e) Each violation f of this chapter
is a separate and actionable offense.
(f) Nothing in this section limits or expands the right of an
injured research subject to recover damages under any other
applicable law.
SEC. 442. Section 121270 of the Health and Safety Code is amended
to read:
121270. (a) There is hereby created the AIDS Vaccine Victims
Compensation Fund.
(b) For the purposes of this section , the following
definitions apply :
(1) "AIDS vaccine" means a vaccine that (A) has been developed by
any manufacturer and (B) is approved by the FDA or the department
pursuant to Part 5 (commencing with Section 109875) of Division 104
as a safe and efficacious vaccine for the purpose of immunizing
against AIDS.
(2) "Board" means the State Board of Control
California Victim Compensation a nd Government Claims
Board .
(3) "Damages for personal injuries,"
injuries " means the direct medical costs for the
care and treatment of injuries to any person, including a person
entitled to recover damages under Section 377 of the Code of Civil
Procedure, proximately caused by an AIDS vaccine, the loss of
earnings caused by the injuries, and the amount necessary, but not to
exceed five hundred fifty thousand dollars ($550,000), to compensate
for noneconomic losses, including pain and suffering caused by the
injuries.
(4) "Fund" means the AIDS Vaccine Victims Compensation Fund.
(c) The board shall pay from the fund, contingent entirely upon
the availability of moneys as provided in subdivision (o), damages
for personal injuries caused by an AIDS vaccine that is sold in or
delivered in California, and administered or dispersed in California
to the injured person except that no payment shall be made for any of
the following:
(1) Damages for personal injuries caused by the vaccine to the
extent that they are attributable to the comparative negligence of
the person making the claim.
(2) Damages for personal injuries in any instance when the
manufacturer has been found to be liable for the injuries in a court
of law.
(3) Damages for personal injuries due to a vaccination
administered during a clinical trial.
(d) An application for payment of damages for personal injuries
shall be made on a form prescribed by the board , that
application may be required to be verified, within one year
of the date that the injury and its cause are discovered. This
application may be required to be verified. Upon receipt, the
board may require the submission of additional information necessary
to evaluate the claim.
(e) (1) Within 45 days of the receipt of the application and the
submission of any additional information, the board shall do either
of the following:
(A) Allow the claim in whole or part.
(B) Disallow the claim.
(2) In those instances of unusual hardship to the victim, the
board may grant an emergency award to the injured person to cover
immediate needs upon agreement by the injured person to repay in the
event of a final determination denying the claim.
(3) If the claim is denied in whole or part, the victim may apply
within 60 days of denial for a hearing. The hearing shall be held
within 60 days of the request for a hearing unless the injured person
requests a later hearing.
(f) At the hearing , the injured person may be
represented by counsel and may present relevant evidence as defined
in subdivision (c) of Section 11513 of the Government Code. The board
may consider additional evidence presented by its staff. If the
injured person declines to appear at the hearing, the board may act
solely upon the application, the staff report, and other evidence
that appears on the record.
(g) The board may delegate the hearing of applications to hearing
examiners.
(h) The decision of the board shall be in writing and shall be
delivered or mailed to the injured person within 30 days of the
hearing. Upon the request by the applicant within 30 days of delivery
or mailing, the board may reconsider its decision.
(i) Judicial review of a decision shall be under Section 1094.5 of
the Code of Civil Procedure, and the court shall exercise its
independent judgment. A petition for review shall be filed as
follows:
(1) If no request for reconsideration is made, within 30 days of
personal delivery or mailing of the board's decision on the
application.
(2) If a timely request for reconsideration is filed and rejected
by the board, within 30 days of personal delivery or mailing of the
notice of rejection.
(3) If a timely request for reconsideration is filed and granted
by the board, or reconsideration is ordered by the board, within 30
days of personal delivery or mailing of the final decision on the
reconsidered application.
(j) The board shall adopt regulations to implement this section,
including those governing discovery.
(k) The fund is subrogated to any right or claim that any injured
person may have who receives compensation pursuant to this section,
or any right or claim that the person's personal representative,
legal guardian, estate, or survivor may have, against any third party
who is liable for the personal injuries caused by the AIDS vaccine,
and the fund shall be entitled to indemnity from that third party.
The fund shall also be entitled to a lien on the judgment, award, or
settlement in the amount of any payments made to the injured person.
(l) In the event that the injured person, or his or her guardian,
personal representative, estate, or survivors, or any of them, bring
an action for damages against the person or persons liable for the
injury or death giving rise to an award by the board under this
section, notice of institution of legal proceedings and notice of any
settlement shall be given to the board in Sacramento except in cases
where the board specifies that notice shall be given to the Attorney
General. All notices shall be given by the attorney employed to
bring the action for damages or by the injured person, or his or her
guardian, personal representative, estate, or survivors, if no
attorney is employed.
(m) This section is not intended to affect the right of any
individual to pursue claims against the fund and lawsuits against
manufacturers concurrently, except that the fund shall be entitled to
a lien on the judgment, award, or settlement in the amount of any
payments made to the injured party by the fund.
(n) There is hereby created the AIDS Vaccine Injury Compensation
Policy Review Task Force consisting of 14 members. The task force
shall be composed of 10 members appointed by the Governor, of
which two shall be from a list
provided by the California Trial Lawyers Association, one from the
department, the Director of Finance, one unspecified member, and one
attorney with experience and expertise in products liability and
negligence defense work, two representing recognized groups that
represent victims of vaccine induced injuries or AIDS victims, or
both, and two representing manufacturers actively engaged in
developing an AIDS vaccine. In addition four Members of the
Legislature or their designees shall be appointed to the task force,
two of which shall be appointed by the Speaker of the Assembly and
two of which shall be appointed by the Senate Rules
Committee on Rules . The chairperson of the task
force shall be appointed by the Governor from the membership of the
task force. The task force shall study and make recommendations on
the legislative implementation of the fund created by subdivision
(a). These recommendations shall at least address the following
issues:
(1) The process by which victims are to be compensated through the
fund.
(2) The procedures by which the fund will operate and the
governance of the fund.
(3) The method by which manufacturers are to pay into the fund and
the amount of that payment.
(4) The procedural relationship between a potential victim's claim
through the fund and a court claim made against the manufacturer.
(5) Other issues deemed appropriate by the task force.
The task force shall make its recommendations to the Legislature
on or before June 30, 1987.
(o) The fund shall be funded wholly by a surcharge on the sale of
an AIDS vaccine, that has been approved by the FDA, or by the
department pursuant to Part 5 (commencing with Section 109875) of
Division 104, in California in an amount to be determined by the
department. The surcharge shall be levied on the sale of each unit of
the vaccine sold or delivered, administered, or dispensed in
California. The appropriate amount of the surcharge shall be studied
by the AIDS Vaccine Injury Compensation Policy Review Task Force
, which shall recommend the appropriate amount as part of its
report, with the amount of the surcharge not to exceed ten dollars
($10) per unit of vaccine. Expenditures of the task force shall be
made at the discretion of the Director of Finance or the director's
designee.
(p) For purposes of this section, claims against the fund are
contingent upon the existing resources of the fund as provided in
subdivision (o), and in no case shall the state be liable for any
claims in excess of the resources in the fund.
SEC. 443. Section 121275 of the Health and Safety Code is amended
to read:
121275. (a) Because the development of a vaccine now costs
somewhere between twenty million dollars ($20,000,000) and forty
million dollars ($40,000,000), and because the last vaccine produced
and marketed did not sell well, vaccine manufacturers are hesitant to
proceed to invest their resources in a risky venture. It is,
therefore, in the public health interest of California to assure that
manufacturers proceed to develop this vaccine and protect
Californians against this dread disease and protect the State of
California against the enormous fiscal costs of treatment for persons
getting AIDS. It is a sound and worthwhile investment to provide a
guarantee of a market to lessen the risk of loss and assure the
development of an AIDS vaccine.
It is anticipated that this AIDS vaccine will consist of a
three-unit series. The State of California is willing to guarantee
that at least 175,000 persons will be vaccinated, and to guarantee
the purchase, within three years after the FDA or the department
pursuant to Part 5(commencing 5 (commencing
with Section 109875) of Division 104 approves marketing of an
AIDS vaccine, of at least 500,000 units, at a cost of no more than
twenty dollars ($20) per dosage, by all companies, anywhere in the
United States.
Therefore, the State of California, by moneys to be appropriated
later through the Budget Act, commits itself to purchasing, at the
end of three years after the FDA or the department pursuant to Part 5
(commencing with Section 109875) of Division 104 has approved the
marketing on a competitive basis, at not more than twenty dollars
($20) per dosage, the difference between 500,000 units and the actual
amount sold, delivered, administered, or dispensed by all companies
throughout the United States, including units sold to or reimbursed
by Medi-Cal, Medicare, or other public programs, providing that
less fewer than 500,000 units are sold,
delivered, administered, or dispensed.
(b) The AIDS Vaccine Guaranteed Purchase Fund is hereby
established and shall be administered by the department,
that which may develop necessary regulations to
carry out the purpose of this section.
(c) The department may carry out this section, when those funds
are appropriated through the State Budget. In determining which
vaccine shall be purchased by the state from among those
manufacturers selling or distributing in California, an AIDS vaccine
approved by the FDA or the department pursuant to Part 5 (commencing
with Section 109875) of Division 104, the department shall take into
consideration at least all of the following factors:
(1) The length of time each AIDS vaccine has been in the
marketplace in California.
(2) Each AIDS vaccine's history of efficacy since approval by the
FDA or the department.
(3) Each AIDS vaccine's history of side effects experienced by
previous recipients of the vaccine.
(4) The relative cost of each competing manufacturer's AIDS
vaccine.
SEC. 444. Section 121520 of the Health and Safety Code is amended
to read:
121520. The department, in consultation with the State
Department of Education, shall adopt and enforce all rules
and regulations necessary to carry out this chapter.
SEC. 445. Section 122070 of the Health and Safety Code is amended
to read:
122070. (a) If a licensed veterinarian
states in writing that within 15 days after the purchaser has taken
physical possession of a dog following the sale by a breeder, the dog
has become ill due to any illness or disease that existed in the dog
on or before delivery of the dog to the purchaser, or, if within one
year after the purchaser has taken physical possession of the dog
after the sale by a breeder, a veterinarian licensed in this state
states in writing that the dog has a congenital or hereditary
condition which that adversely affects the health
of the dog, or which that requires, or is likely
in the future to require, hospitalization or nonelective surgical
procedures, the dog shall be considered unfit for sale, and the
breeder shall provide the purchaser with any of the following
remedies that the purchaser elects:
(1) Return the dog to the breeder for a refund of the purchase
price, plus sales tax, and reimbursement for reasonable veterinary
fees for diagnosis and treating the dog in an amount not to exceed
the original purchase price of the dog, including sales tax.
(2) Exchange the dog for a dog of the purchaser's choice of
equivalent value, providing a replacement dog is available, and
receive reimbursement for reasonable veterinary fees for diagnosis
and treating the dog in an amount not to exceed the original purchase
price of the dog, plus sales tax on the original purchase price of
the dog.
(3) Retain the dog, and receive reimbursement for reasonable
veterinary fees for diagnosis and treating the dog in an amount not
to exceed 150 percent of the original purchase price of the dog, plus
sales tax.
(b) If the dog has died, regardless of the date of death of the
dog, obtain a refund for the purchase price of the dog, plus sales
tax, or a replacement dog of equivalent value of the purchaser's
choice, and reimbursement for reasonable veterinary fees for
diagnosis and treatment of the dog in an amount not to exceed the
purchase price of the dog, plus sales tax, if any of the following
conditions exist:
(1) A veterinarian, licensed in this state, states in writing that
the dog has died due to an illness or disease that existed within 15
days after the purchaser obtained physical possession of the dog
after the sale by a breeder.
(2) A veterinarian, licensed in this state, states in writing that
the dog has died due to a congenital or hereditary condition that
was diagnosed by the veterinarian within one year after the purchaser
obtained physical possession of the dog after the sale by a breeder.
SEC. 446. Section 127575 of the Health and Safety Code is amended
to read:
127575. For purposes of this chapter, the following definitions
shall apply:
(a) "Carrier" means any of the following:
(1) Any insurer, including, but not limited to, disability
insurers, nonprofit hospital service plans, fraternal benefit
societies, and firemen's, policemen's, or peace officers' benefit and
relief associations.
(2) A health care service plan other than a specialized health
care service plan.
(3) A self-funded employer sponsored plan, multiple employer
trust, or Taft-Hartley Trust as defined by federal law, authorized to
pay for health care services in this state.
(4) The State Compensation Insurance Fund.
(5) The health insurance offered to certain employees of this
state by the Public Employees' Retirement System known as
"PERS" Care. "PERS Care."
(b) "Department" means the State Department of Health Services.
(c) "Office" means the Office of Statewide Health Planning and
Development.
(d) "Professional health care services" means any diagnostic or
treatment services provided in California directly to a patient by a
person licensed or practicing pursuant to Division 2 (commencing with
Section 500) of the Business and Professions Code who is eligible to
directly bill for their services. "Professional health care services"
does not include services provided by a person licensed pursuant to
a chapter of Division 2 that the director of the office has
determined, pursuant to Section 127590, should be exempted.
(e) "Institutional provider services" means any services,
equipment, and supplies, other than professional health care services
that are provided by an institution, site, or facility through
that which professional health care
services are provided. "Institutional provider services" includes any
component of an episode of health care for which there will be
charges, other than professional health care services. "Institutional
provider services" does not include diagnostic or treatment services
that would be considered "professional health care services" but for
the fact that the provider is licensed under a chapter of Division 2
of the Business and Professions Code that the director of the office
has exempted pursuant to Section 127590.
(f) "California uniform billing form for professional health care
services" and "California uniform billing form for institutional
provider services" means billing forms in the formats developed by
the office pursuant to Section 127580.
SEC. 447. Section 129890 of the Health and Safety Code is amended
to read:
129890. (a) Notwithstanding any other provision of law, the
office shall, on or before January 1, 1991, set forth and implement
criteria for the alteration or construction of buildings specified in
subdivision (a) of Section 129725 that provide for onsite field
review and approval by construction advisors
advisers of the office and provide for preapproval of project
plans that comply with the requirements for which the office has
developed standard architectural or engineering detail, or both
standard architectural and engineering detail.
(b) On site Onsite field
reviews shall be performed by available area construction
advisors advisers of the office. The area
construction advisors advisers shall
have the responsibility to coordinate any approvals required by the
State Fire Marshal. The approvals may be obtained prior to the start
of construction or on a deferred basis, at the discretion of the area
construction advisor adviser .
(c) An annual building permit project classified as a "field
review" shall be reviewed and approved by the area construction
advisor adviser .
(d) Effective January 1, 1991, all plans submitted for the
alteration or construction of buildings specified in subdivision (a)
of Section 129725 to the office for plan review shall be evaluated to
determine if it is exempt from the plan review process or if it
qualifies for an expedited plan review. The evaluation shall give
priority to plans that are for minor renovation, remodeling, or
installation of equipment.
SEC. 448. Section 150204 of the Health and Safety Code is amended
to read:
150204. (a) A county may establish, by ordinance, a repository
and distribution program for purposes of this division. Only
pharmacies that are county-owned or that contract with the county
pursuant to this division may participate in this program to dispense
medication donated to the drug repository and distribution program.
(b) A county that elects to establish a repository and
distribution program pursuant to this division shall establish
procedures for, at a minimum, all of the following:
(1) Establishing eligibility for medically indigent patients who
may participate in the program.
(2) Ensuring that patients eligible for the program shall not be
charged for any medications provided under the program.
(3) Developing a formulary of medications appropriate for the
repository and distribution program.
(4) Ensuring proper safety and management of any medications
collected by and maintained under the authority of a county-owned or
county-contracted, licensed pharmacy.
(5) Ensuring the privacy of individuals for whom the medication
was originally prescribed.
(c) Any medication donated to the repository and distribution
program shall comply with the requirements specified in this
division. Medication donated to the repository and distribution
program shall meet all of the following criteria:
(1) The medication shall not be a controlled substance.
(2) The medication shall not have been adulterated, misbranded, or
stored under conditions contrary to standards set by the United
States Pharmacopoeia (USP) or the product manufacturer.
(3) The medication shall not have been in the possession of a
patient or any individual member of the public, and in the case of
medications donated by a skilled nursing facility, shall have been
under the control of staff of the skilled nursing facility.
(d) Only medication that is donated in unopened, tamper-evident
packaging or modified unit dose containers that meet USP standards is
eligible for donation to the repository and distribution program,
provided lot numbers and expiration dates are affixed. Medication
donated in opened containers shall not be dispensed by the repository
and distribution program.
(e) A pharmacist shall use his or her professional judgment in
determining whether donated medication meets the standards of this
division before accepting or dispensing any medication under the
repository and distribution program.
(f) A pharmacist shall adhere to standard pharmacy practices, as
required by state and federal law, when dispensing all medications.
(g) Medication that is donated to the repository and distribution
program shall be handled in any of the following ways:
(1) Dispensed to an eligible patient.
(2) Destroyed.
(3) Returned to a reverse distributor.
(h) Medication that is donated to the repository and distribution
program that does not meet the requirements of this division shall
not be distributed under this program and shall be either destroyed
or returned to a reverse distributor. This medication shall not be
sold, dispensed, or otherwise transferred to any other entity.
(i) Medication donated to the repository and distribution program
shall be maintained in the donated packaging units until dispensed to
an eligible patient under this program, who presents a valid
prescription. When dispensed to an eligible patient under this
program, the medication shall be in a new and properly labeled
container, specific to the eligible patient and ensuring the privacy
of the individuals for whom the medication was initially dispensed.
Expired medication shall not be dispensed.
(j) Medication donated to the repository and distribution program
shall be segregated from the pharmacy's other drug stock by physical
means, for purposes including, but not limited to, inventory,
accounting, and inspection.
(k) The pharmacy shall keep complete records of the acquisition
and disposition of medication donated to and dispensed under the
repository and distribution program. These records shall be kept
separate from the pharmacy's other acquisition and disposition
records and shall conform to the Pharmacy Law (Chapter 9 (commencing
with Section 4000) , of Division 2 of the Business
and Professions Code), including being readily retrievable.
(l) Local and county protocols established pursuant to this
act division shall conform to the
Pharmacy Law regarding packaging, transporting, storing, and
dispensing all medications.
(m) County protocols established for packaging, transporting,
storing, and dispensing medications that require refrigeration,
including, but not limited to, any biological product as defined in
Section 351 of the Public Health and Service Act (42 U.S.C. Sec.
262), an intravenously injected drug, or an infused drug, include
specific procedures to ensure that these medications are packaged,
transported, stored, and dispensed at their appropriate temperatures
and in accordance with USP standards and the Pharmacy Law.
(n) Notwithstanding any other provision of law, a participating
county-owned or county-contracted pharmacy shall follow the same
procedural drug pedigree requirements for donated drugs as it would
follow for drugs purchased from a wholesaler or directly from a drug
manufacturer.
SEC. 449. Section 134 of the Insurance Code is amended to read:
134. (a) A purchasing group that intends to do business in this
state shall, prior to doing business, furnish notice
to the commissioner notice, which does
shall do the following:
(1) Identify the state in which the group is domiciled.
(2) Specify the lines and classifications of liability insurance
which that the purchasing group intends
to purchase.
(3) Identify the insurance company or companies from which the
group intends to purchase its insurance and the domicile of that
company.
(4) Specify the method by which, and the person or persons, if
any, through whom , insurance will be offered to its
members whose risks are resident or located in this state.
(5) Identify the principal place of business of the group.
(6) Provide other information that may be required by the
commissioner to verify that the purchasing group is qualified under
subdivision (i) of Section 130.
(b) The purchasing group shall register with and designate the
commissioner as its agent solely for the purpose of receiving service
of legal documents or process, for which a filing fee in the amount
of three hundred dollars ($300) shall be submitted to the
commissioner for deposit in the Risk Retention Administration Account
within the Insurance Fund, except that these requirements do not
apply in the case of a purchasing group that did all of the
following:
(1) Was domiciled before April 1, 1986, and is domiciled on and
after October 27, 1986, in any state of the United States.
(2) Before October 27, 1986, purchased insurance from an insurance
carrier licensed in any state, and since October 27, 1986, purchased
its insurance from an insurance carrier licensed in any state.
(3) Was a purchasing group under the requirements of the Product
Liability Risk Retention Act of 1981 (15 U.S.C. Sec. 3901 et
seq.) before October 27, 1986.
(4) Does not purchase insurance that was not authorized for
purposes of an exemption under that act, as in effect before October
27, 1986.
(c) Any purchasing group which that
was doing business in this state prior to the enactment of this
chapter shall, within 30 days after January 1, 1990, furnish notice
to the commissioner pursuant to subdivision (a) and furnish
information that may be required pursuant to subdivisions (b) and
(c).
(d) Each purchasing group which that
is required to give notice pursuant to subdivision (a) shall also
furnish information as that may be
required by the commissioner to:
(1) Verify that the entity qualifies as a purchasing group.
(2) Determine where the purchasing group is located.
(3) Determine appropriate tax treatment.
(4) Verify that the purchasing group is in compliance with
the requirements of this chapter.
(e) Any purchasing group that intends to do business in this state
shall make its initial registration by submitting to the
commissioner the materials listed in subdivision (a). The
registration is valid until December 31 of the year in which it was
made, as long as the purchasing group is in compliance with this
chapter. To maintain the registration, the purchasing group shall
continue to comply with the provisions of this
chapter. Additionally, the purchasing group shall file the following
documents with the commissioner on or before January 31 of each year:
(1) An annual reporting statement on a form prescribed by the
commissioner.
(2) An annual renewal fee, to be determined by the commissioner,
limited to the actual cost of administering this section, not to
exceed two hundred dollars ($200).
(3) Any other information required by the commissioner to
determine whether the purchasing group is in compliance with
the requirements of this chapter or other applicable
provisions of this code.
(f) The purchasing group shall notify the commissioner in writing
of any changes in the information provided according to subdivision
(a) within 30 days of the effective date of the change.
SEC. 450. Section 481.5 of the Insurance Code is amended to read:
481.5. (a) Whenever a policy of personal lines insurance
terminates for any reason, or there is a reduction in coverage, the
insurer shall tender the gross unearned premium resulting from the
termination, or the amount of the unearned premium generated by the
reduction in coverage, resulting from the termination, or
the amount of the unearned premium generated by the reduction in
coverage, to the insured or, pursuant to Section 673, to
the insured's premium finance company. The gross unearned premium
shall be tendered within 25 business days after the insurer either
receives notice of the event that generated the gross unearned
premium, or receives notice from a premium finance company of a
cancellation.
(b) (1) Whenever a policy other than a policy of personal lines
insurance terminates for any reason, or there is a reduction in
coverage, the gross unearned premium shall be tendered to the insured
or, pursuant to Section 673, to the insured's premium finance
company. If the policy is not auditable, the gross unearned premium
shall be tendered within 80 business days after the insurer either
receives notice of the event that generated the gross unearned
premium, or receives notice from a premium finance company of a
cancellation. If the policy is auditable, the gross unearned premium
shall be tendered within 80 business days after the insured provides
all requested audit information to the insurer or the insurer's
designee.
(2) Notwithstanding paragraph (1), an insurer shall not be
required to tender the unearned premium within 80 business days if
the final unearned premium amount cannot be determined due to the
insured's failure, in breach of a policy requirement, to cooperate
with the insurer in a premium audit, or if the amount of the unearned
premium determined by a premium audit remains in dispute.
(c) An insurer may tender gross or net unearned premium to an
agent or broker, or net unearned premium to a finance company, but
shall remain liable to the insured or finance company for payment of
any portion of the gross unearned premium that the agent or broker
fails to remit to the insured or premium finance company.
(d) Any unearned premium that an insurer fails to tender within
the time periods specified in subdivisions (a) and (b) shall bear
interest at the rate of 10 percent per annum from and after the date
on which the unearned premium was required to be tendered. For the
purposes of this section, the tender of any unearned premium to the
insured or premium finance company shall be deemed complete upon the
deposit of the unearned premium in the United States mail, prepaid,
addressed to the named insured or premium finance company at the last
known address, or to an agent or broker with an assignment pursuant
to paragraph (1) of subdivision (g).
(e) For the purpose of this section, the following definitions
apply:
(1) "Gross unearned premium" means the unearned portion of the
full amount of the premium charged to the insured, including the
unearned portion of any amount of the premium the insurer allocated
to an agent or broker as commission.
(2) "Net unearned premium" means the gross unearned premium minus
the unearned commission.
(3) "Policy of personal lines insurance" means an insurance policy
that is designed for and bought by individuals, and includes, but is
not limited to, homeowners' and automobile policies.
(f) The interest penalty required by this section shall not apply
to any insurer in conservatorship or liquidation, nor shall
such an this insurer be subject to any other
penalty for failure to remit unearned premium in accordance with the
time periods required by this section.
(g) (1) An assignment by an insured to an agent or broker of the
insured's right to receive unearned premium shall be valid only for
the purpose set forth in Section 1735.5.
(2) If the insured notifies the insurer, 25 or more days after the
insurer's tender of unearned premium to an agent or broker with an
assignment pursuant to paragraph (1), that the agent or broker has
failed to issue to the insured an accounting of an offset permitted
by Section 1735.5, the insurer shall, within an additional 15 days,
either tender the unearned premium directly to the insured or provide
the insured with the agent's or broker's accounting of the offset
permitted by Section 1735.5.
(3) Whenever an insurer tenders the net rather than
gross unearned premium to an agent or broker or premium finance
company, the insurer shall contemporaneously notify the agent or
broker of the amount of the unearned commission.
(4) If an insurer elects to tender the net rather than the gross
unearned premium to a premium finance company, the insurer shall
document that the agent or broker tendered unearned commission to the
premium finance company within the period required under subdivision
(a) or (b) after the insurer either receives notice of the event
that generated the unearned premium, or receives notice from a
premium finance company of a cancellation.
(h) Whenever an agent or broker receives a refund from a premium
finance company, the agent or broker shall tender that money to the
insured within 25 days. Whenever an agent or broker with an
assignment from the insured receives unearned premium from an
insurer, the agent or broker shall account to the insured for any
offset permitted by Section 1735.5 within 25 days. If the agent or
broker fails to tender payment of any remaining unearned premium
after the offset within 25 days, the agent or broker shall pay the
insured interest at the rate of 10 percent per annum from and after
the 26th day after the agent or broker receives the refund.
(i) In addition to the required unearned premium refund, an
insurer shall provide both the insured and the agent or broker, upon
the request of either, with an accounting and explanation of how the
amount of the refund was calculated. The explanation shall be clear,
concise, and easy to comprehend. The commissioner may adopt
regulations setting forth standards to govern this subdivision.
(j) For purposes of subdivisions (a) to (c), inclusive, if the
unearned premium is not assigned as security to a premium finance
agency pursuant to a premium finance agreement and the amount of
unearned premium is less than twenty-five dollars ($25), tender of
unearned premium shall include applying the amount of unearned
premium either to the renewal premium at the next renewal date or to
other premiums due, provided written notice of either application is
given to the insured within 30 days after the endorsement, rejection,
declination, cancellation, or surrender of a policy of insurance. At
the time of endorsement or surrender of a policy of insurance or,
within 15 days after the mailing of the written notice required by
this subdivision, the insured may request in writing that the
unearned premium be tendered as provided in subdivisions (a) to (c),
inclusive. Whenever the amount of unearned premium is less than five
dollars ($5), tender shall be effective and the written notice
required by this subdivision shall not be required if the unearned
premium is applied either to the renewal premium at the next renewal
date or to other premiums due.
(k) Notwithstanding subdivisions (a) to (c), inclusive, an insurer
may at any time solicit the insured's consent, or may in its policy
reserve the right, to apply the unearned premium generated by an
amendment or endorsement removing or reducing coverage for an insured
person or property to the balance owed on the policy as a whole,
rather than tendering a refund of the unearned premium. This
subdivision shall not apply if the unearned premium is assigned as
security to a premium finance company.
(l) The amount of unearned premium required to be refunded by an
insurer pursuant to this section shall not exceed the amount paid to
the insurer by the insured or by a premium finance company.
SEC. 451. Section 676.2 of the Insurance Code is amended to read:
676.2. (a) This section applies only to policies of commercial
insurance which that are subject to
Section 675.5.
(b) After a policy has been in effect for more than 60 days, or if
the policy is a renewal, effective immediately, no notice of
cancellation shall be effective unless it complies with Section 677.2
and it is based on the occurrence, after the effective date of the
policy, of one or more of the following:
(1) Nonpayment of premium, including payment due on a prior policy
issued by the insurer and due during the current policy term
covering the same risks.
(2) A judgment by a court or an administrative tribunal that the
named insured has violated any law of this state or of the United
States having as one of its necessary elements an act which
that materially increases any of the risks
insured against.
(3) Discovery of fraud or material misrepresentation by either of
the following:
(A) The insured or his or her representative in obtaining the
insurance.
(B) The named insured or his or her representative in pursuing a
claim under the policy.
(4) Discovery of willful or grossly negligent acts or omissions,
or of any violations of state laws or regulations establishing safety
standards, by the named insured or his or her representative, which
materially increase any of the risks insured against.
(5) Failure by the named insured or his or her representative to
implement reasonable loss control requirements which
that were agreed to by the insured as a
condition of policy issuance or which that
were conditions precedent to the use by the insurer of a
particular rate or rating plan, if the failure materially increases
any of the risks insured against.
(6) A determination by the commissioner that the loss of, or
changes in, an insurer's reinsurance covering all or part of the risk
would threaten the financial integrity or solvency of the insurer. A
certification made under penalty of perjury to the commissioner by
an officer of the insurer of the loss of, or change in, reinsurance
and that the loss or change will threaten the financial integrity or
solvency of the insurer if the cancellation of the policy is not
permitted shall constitute such a this
determination unless disapproved by the commissioner within 30 days
of the filing. There shall be no extensions to this 30-day period.
(7) A determination by the commissioner that a continuation of the
policy coverage would place the insurer in violation of the laws of
this state or the state of its domicile or that the continuation of
coverage would threaten the solvency of the insurer.
(8) A change by the named insured or his or her representative in
the activities or property of the commercial or industrial enterprise
which that results in a material added
risk, a materially increased risk , or a materially
changed risk, unless the added, increased, or changed risk is
included in the policy.
(c) (1) After a policy has been in effect
for more than 60 days, or if the policy is a renewal, effective
immediately upon renewal, no increase in the rate upon which the
premium is based, reduction in limits, or change in the conditions of
coverage shall be effective during the policy period unless a
written notice is mailed or delivered to the named insured and the
producer of record at the mailing address shown on the policy, at
least 30 days prior to the effective date of the increase, reduction,
or change. Subdivision (a) of Section 1013 of the Code of Civil
Procedure is applicable if the notice is mailed. The notice shall
state the effective date of, and the reasons for, the increase,
reduction, or change.
That
(2) The increase, reduction, or
change shall not be effective unless it is based upon one
of the following reasons:
(1)
(A) Discovery of willful or grossly negligent acts or
omissions, or of any violations of state laws or regulations
establishing safety standards by the named insured which
that materially increase any of the risks or
hazards insured against.
(2)
(B) Failure by the named insured to implement
reasonable loss control requirements which
that were agreed to by the insured as a condition of policy
issuance or which that were conditions
precedent to the use by the insurer of a particular rate or rating
plan, if the failure materially increases any of the risks insured
against.
(3)
(C) A determination by the commissioner that loss of or
changes in an insurer's reinsurance covering all or part of the risk
covered by the policy would threaten the financial integrity or
solvency of the insurer unless the change in the terms or conditions
or rate upon which the premium is based is permitted.
(4)
(D) A change by the named insured in the activities or
property of the commercial or industrial enterprise which
that results in a materially added risk, a
materially increased risk, or a materially changed risk, unless the
added, increased, or changed risk is included in the policy.
(5)
(E) With respect to a change in the rate of a policy of
professional liability insurance for a health care provider, the
insurer's offer of renewal notifies the policyholder that the insurer
has an application filed pursuant to Section 1861.05 pending with
the commissioner for approval of a change in the rate upon which the
premium is based, and the commissioner subsequently approves the rate
change, or some different amount for the policy period. The change
shall not be retroactive.
(d) The Administrative Procedure Act (Chapter 3.5 (commencing with
Section 11340), Chapter 4 (commencing with Section 11370), and
Chapter 5 (commencing with Section 11500) of Title 2 of Division 3 of
the Government Code) shall not apply to a determination pursuant to
paragraph (6) or (7) of subdivision (b) or subparagraph (C) of
paragraph (3) (2 ) of
subdivision (c). The commissioner shall charge an insurer who
requests a determination pursuant to paragraph (6) or (7) of
subdivision (b) a fee sufficient to recover the costs of making the
determination. If the commissioner does not act upon a request by
a an insurer to cancel or change a
policy pursuant to those provisions within 30 days, the request shall
be deemed to be approved.
(e) This section shall not prohibit an insurer from increasing a
premium during the policy period , if the increase
is calculated in accordance with the current rating manual of the
insurer , and is justified by a physical change in
the insured property or by a change in the activities of the
commercial or industrial enterprise which
that materially increases any of the risks insured against.
(f) This section shall not apply to a transfer of a policy without
a change in its terms or conditions or the rate upon which the
premium is based between insurers which that
are members of the same insurance group.
SEC. 452. Section 750.4 of the Insurance Code is amended to read:
750.4. Section 750 of the Insurance Code, Sections 3215 and 3219
of the Labor Code, or and Section 549
of the Penal Code shall not apply to any person, corporation,
partnership, association, or firm, which that
is operating under both of the following circumstances
:
(a) Operating on On behalf
of an insurer or self-insured person, company, association, or
group.
(b) Operating pursuant Pursuant to
, and within the scope of , a certificate of
consent issued pursuant to Section 3702.1 of the Labor Code or
pursuant to , and within the scope of , a
license issued pursuant to Article 3 (commencing with Section
14000) 14020) of Chapter 1 of Division
5.
SEC. 453. Section 1063.145 of the Insurance Code is amended to
read:
1063.145. The statement of the amount of surcharge required to be
provided under subdivision (b) of Section 1063.14 shall include a
description of, and purpose for, the California Insurance Guarantee
Association, as follows:
Companies
"Companies writing property and casualty insurance
business in California are required to participate in the California
Insurance Guarantee Association. If a company becomes insolvent the
California 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" 'CA Surcharge' with an amount will
be displayed on your premium notice."
SEC. 454. Section 1140.5 of the Insurance Code is amended to read:
1140.5. (a) Notwithstanding any other provision of law, a copy of
every form of proxy or written consent or authorization for use at
any meeting or proceeding of shareholders or stockholders of any
domestic insurer to evidence authority to cast the vote of any
shareholder or stockholder, or to record the consent or the
authorization of any shareholder or stockholder to any action of the
insurer, and a copy of every solicitation, announcement, or
advertisement used to obtain, or to influence any shareholder or
stockholder to sign, any proxy, or written consent or authorization
shall be filed with the commissioner, accompanied by a filing fee of
fifty-eight dollars ($58), by the person intending to use, issue,
publish, or circulate such the
document. No such This document shall
not be used, issued, published, or circulated before a
period of 10 days following the date of its filing, or any shorter
period as that may be designated by the
commissioner, has elapsed. Within such the
10-day or a shorter period , the
commissioner may disapprove of any document filed with him or
her pursuant to this section, stating his or her
reasons therefor in writing, in which case such
, the document shall not be used, issued, published, or
circulated.
(b) Any person who fails to make the filing required by this
section and who thereafter uses any document required to be filed,
or who uses any such the
document before it has been filed with the commissioner for the
period required, or who uses any such
the document after receiving written notice that
the document has been disapproved by the commissioner is guilty of a
misdemeanor. It shall be unlawful to use any proxy or consent
obtained in violation of this section ; and the
. The superior court of the State of California in and for
the county in which is located the principal place of business of
such the insurer shall have
jurisdiction to enforce the provisions of this
section and the regulations promulgated pursuant thereto
to this section , and to grant appropriate
relief upon the verified petition of the commissioner, such
the domestic insurer , or and
any of its shareholders or stockholders.
(c) The purposes of this section are: to ensure that the
shareholders, stockholders , or other persons entitled to
vote or give written consents or authorizations are provided with
adequate and accurate information regarding the affairs of the
insurers in which they have interests, the interests of those
soliciting proxies or written consents or authorizations and of those
upon whose behalf such the
solicitations are made, and the matters as to which proxies
or , written consents , or
authorizations are solicited; and to prevent fraud or deception in
connection with proxies, proxy statements , or other proxy
solicitations. In furtherance of the purposes of this
section the The commissioner may make rules and
regulations therefor in furtherance of the
purposes of this section . Such These
rules and regulations may differ as to different classes and
types of insurers.
(d) The provisions of this This
section shall not apply to any domestic insurer having less
fewer than 100 shareholders or stockholders and
shall not apply to any domestic insurer if 95 percent or more of its
stock is owned or controlled by a parent or an affiliated insurer and
the remaining shares of stock are owned by less
fewer than 500 shareholders or stockholders. Any domestic
insurer which that files with the
federal Securities and Exchange Commission forms of proxies,
consents , and authorizations complying with the
requirements of the federal Securities Exchange Act of
1934 (15 U.S.C. Sec. 782 et seq.) and the amendments
thereto and the applicable regulations thereunder, is exempt from
the provisions of this section.
SEC. 455. Section 1734.5 of the Insurance Code is amended to read:
1734.5. (a) (1) If fiduciary funds, as
defined in Section 1733, are received by any person licensed, whether
under a permanent license, restricted license, temporary license, or
certificate of convenience, to act in any of the capacities
specified in Section 1733, and the funds are not remitted, or
maintained pursuant to subdivisions (a) and (b) of Section 1734, the
funds shall be maintained as follows: (1) in
United any of the following:
(A) United States government
bonds and treasury certificates or other obligations for which the
full faith and credit of the United States are pledged for payment of
principal and interest ; (2) in certificates
.
(B) Certificates of deposit of
banks or savings and loan associations licensed by any state
government within the United States, or the United States government
; (3) in repurchase .
(C) Repurchase agreements
collateralized by securities issued by the United States government
; or (4) in (A) bonds .
(D) Either of the following:
(i) Bonds and other obligations
of this state or of any local agency or district of the State of
California having the power, without limit as to rate or amount, to
levy taxes or assessments upon all property within its boundaries
subject to taxation or assessment by the local agency or district to
pay the principal and interest of the obligations , and (B)
revenue .
(ii) Revenue bonds and other
obligations payable solely out of the revenues from a
revenue-producing property owned, controlled, or operated by this
state, or a local agency or district or by a department, board,
agency , or authority thereof , the
.
(2) The bonds and obligations
described in subparagraphs (A) and (B) to
subparagraph (D) of paragraph (1) shall either have maturities
of not more than one year , or afford the holder
of the obligation the unilateral right to redeem the obligation from
its issuer within one year from date of purchase at an amount equal
to or greater than its par value, and the bonds and obligations shall
be required to be rated at least Aa1, MIG-1/VMIG-1 , or
Prime-1 by Moody's Investor Service, Inc., or AA, SP-1 ,
or A-1 by Standard and Poor's Corporation.
(3) For the fiduciary funds maintained as
provided in paragraphs (1) to (4), inclusive
paragraph (1) , the bonds, certificates, obligations,
certificates of deposit, and repurchase agreements shall be valued on
the basis of their acquisition cost.
(b) As a condition to maintaining the fiduciary funds pursuant to
this section, a written agreement shall be obtained from each and
every insurer or person entitled thereto authorizing the maintenance
and the retention of any earnings accruing on the funds.
(c) Evidence of the funds shall be maintained on California
business by a bank , as defined in Section 102 of the
Financial Code, or by a savings and loan
association , as defined in Section 5057
143 or 11000 5102
of the Financial Code , in a custodian or trust account in
California , separate from any other funds, in an amount
at least equal to the premiums and return premiums, net of
commissions received by him or her and unpaid to the persons entitled
thereto, or, at their discretion or pursuant to a written contract,
for the account of these persons. However, the persons
person may commingle with the fiduciary funds
any additional funds as he or she may deem prudent for the purpose of
advancing premiums, establishing reserves for the paying of return
premiums, or for any contingencies as that
may arise in his or her business of receiving and transmitting
premium or return premium funds.
(d) The commissioner shall not have jurisdiction over any disputes
arising between parties concerning the maintenance of fiduciary
funds pursuant to this section. However, this subdivision shall not
otherwise affect the authority granted to the commissioner over
fiduciary funds by other provisions of this code, or regulations
adopted pursuant thereto. As used in this subdivision, the
term "parties" shall not include the commissioner.
(e) Investment losses to the principal of fiduciary funds
maintained pursuant to this section are the responsibility of the
person licensed, whether under a permanent license, restricted
license, temporary license, or certificate of convenience, to act in
any of the capacities specified in Section 1733, and any obligation
to insurers or other persons entitled to the fiduciary funds shall in
no way be diminished due to any loss in the value to the principal
of the fiduciary funds held pursuant to this section.
SEC. 456. Section 1735 of the Insurance Code is amended to read:
1735. (a) As used in this section ,
a managing general agent is a licensed fire and casualty
broker-agent or a life agent who, (a) has to
whom all of the following apply:
(1) Has a written management
contract and an appointment on file with the commissioner in
accordance with Section 1704, which appointment is then in force,
with one or more admitted insurers covering business transacted by
the insurer in a substantial portion of the State of California
; (b) under .
(2) Under the contract
specified in paragraph (1), manages the transaction of either
all or one or more of the classes of insurance written by those
insurers in that territory or the transactions therein by those
insurers under a specified fictitious underwriter's name ;
(c) has .
(3) Has the power to appoint,
supervise , and terminate the appointment of local agents
in that territory ; (d) has .
(4) Has the power to accept or
decline risks ; and (f) collects .
(5) Collects premium moneys from
producing broker-agents and remits those moneys to those insurers
pursuant to the account current system.
Any such
(b) The managing general agent
shall, with respect to any principals for whom fiduciary funds are
held, comply with Section 1734.
SEC. 457. Section 1763.2 of the Insurance Code is amended to read:
1763.2. (a) A licensed surplus line broker
may originate surplus lines business, or may accept that business
from any other originating licensee duly licensed for the type or
types of insurance involved, and may compensate those licensees
therefor.
(b) For any information involved in any insurance transaction
described in subdivision (a), or involved in the eligibility of the
risk for placement with a surplus line broker, the originating
licensee shall use due care and diligence in the collection,
preparation, and transmission of the information to the surplus line
broker.
SEC. 458. Section 1781.7 of the Insurance Code is amended to read:
1781.7. Transactions between a reinsurance intermediary-manager
and the reinsurer it represents in that capacity shall only be
entered into pursuant to a written contract specifying the
responsibilities of each party and ,
which shall be approved by the reinsurers's board of directors.
Before a reinsurer assumes or cedes business through such a producer,
a true copy of the approved contract shall be filed with the
commissioner. The contract shall, at a minimum, contain provisions
setting forth the following terms and conditions:
(a) The reinsurer may terminate the contract for cause upon
written notice to the reinsurance intermediary-manager. The reinsurer
may suspend the authority of the reinsurance intermediary-manager to
assume or cede business during the pendency of any dispute regarding
the cause for termination.
(b) The reinsurance intermediary-manager shall, not less than
quarterly, render calendar-year-basis and underwriting-year-basis
accounts to the reinsurer accurately detailing all material
transactions, including information necessary to support all
commissions, charges, and other fees received by, or owing to, the
reinsurance intermediary-manager, and shall remit all funds due under
the contract to the reinsurer on not less than a quarterly basis.
(c) All funds collected for the reinsurer's account shall be held
by the reinsurance intermediary-manager in a fiduciary capacity in a
bank the accounts of which are insured by an agency or
instrumentality of the United States. The reinsurance
intermediary-manager may retain no more than three months' estimated
claims payment and allocated loss adjustment expenses. Unless the
funds held for each reinsurer by the reinsurance intermediary-manager
in the fiduciary account are reasonably and readily ascertainable
from its books of account and records, and the bank's books of
account and records, the reinsurance intermediary-manager shall
maintain a separate bank account for each reinsurer that it
represents. Notwithstanding the foregoing, the reinsurance
intermediary-manager shall maintain a separate bank account for each
reinsurer that it represents which that
is in receivership or liquidation or which
that the commissioner determines to be in an impaired financial
condition.
(d) For at least 10 years after expiration of each contract of
reinsurance transacted by the reinsurance intermediary-manager, the
reinsurance intermediary-manager shall keep a complete record for
each transaction showing all of the following:
(1) The type of contract, limits, underwriting restrictions,
classes or risks, and territory.
(2) The period of coverage, including effective and expiration
dates, cancellation provisions and notice required for cancellation,
and disposition of outstanding reserves on covered risks.
(3) The reporting and settlement requirements with respect to
balances.
(4) The rate used to compute the reinsurance premium.
(5) The names and addresses of reinsurers.
(6) The rates of all reinsurance commissions, including the
commissions on any retrocessions handled by the reinsurance
intermediary-manager.
(7) Related correspondence and memoranda.
(8) Proof of placement.
(9) Details regarding retrocessions handled by the reinsurance
intermediary-manager, as permitted by subdivision (d) of Section
1781.9, including the identity of retrocessionaires and the
percentage of each contract assumed or ceded.
(10)
Financial records, including, but not limited to, premium and loss
accounts.
(11) If the reinsurance intermediary-manager places a reinsurance
contract on behalf of a ceding insurer directly from the assuming
reinsurer, written evidence that the assuming reinsurer has agreed to
assume the risk. If the reinsurance intermediary-manager procures a
reinsurance contract on behalf of an admitted ceding insurer that is
placed through a representative of the assuming insurer, other than
an employee thereof, written evidence that the reinsurer has
delegated binding authority to the representative.
(e) The reinsurer shall have access and the right to copy all
accounts and records maintained by the reinsurance
intermediary-manager related to its business in a form usable by the
reinsurer.
(f) The contract cannot be assigned in whole or in part by the
reinsurance intermediary-manager.
(g) The reinsurance intermediary-manager shall comply with the
written underwriting and rating standards established by the insurer
for the acceptance, rejection, or cession of all risks.
(h) The contract shall set forth the rates, terms, and purposes of
commissions, charges, and other fees which
that the reinsurance intermediary-manager may levy against the
reinsurer.
(i) If the contract permits the reinsurance intermediary-manager
to settle claims on behalf of the reinsurer, it shall contain all of
the following provisions:
(1) All claims shall be reported to the reinsurer in a timely
manner.
(2) A copy of the claim file shall be sent to the reinsurer at its
request or as soon as it becomes known that any of the
following applies to the claim (A) :
(A) The claim has the potential
to exceed the lessor lesser of an
amount determined by the commissioner or the limit set by the
reinsurer , (B) .
(B) The claim involves a coverage
dispute , (C) .
(C) The claim may exceed the
reinsurance intermediary-manager's claims settlement authority
, or (D) .
(D) The claim is open for more
than six months, unless the reinsurer agrees in writing to waive this
requirement, in which event the reinsurance intermediary-manager
shall annually provide the reinsurer with an exhibit identifying and
describing each open claim.
(3) All claim files will shall be
joint property of the reinsurer and the reinsurer
intermediary-manager. However, upon an order of liquidation of the
reinsurer , these files shall become the sole property of
the reinsurer or its estate, except when the reinsurance
intermediary-manager is also managing the claim files for other
reinsurers. In that event , the reinsurance
intermediary-manager shall simultaneously and immediately provide the
liquidator with copies of all the claim files. With respect to claim
files pertaining solely to a reinsurer in liquidation, the
reinsurance intermediary-manager shall have reasonable access to and
the right to copy the files on a timely basis.
(4) Any settlement authority granted to the reinsurance
intermediary-mana ger intermediary-manager may
be terminated for cause upon the reinsurer's written notice to the
reinsurance intermediary-manager or upon the termination of the
contract. The reinsurer may suspend the settlement authority during
the pendency of the dispute regarding the cause of termination.
(j) If the contract provides for a sharing of interim profits by
the reinsurance intermediary-manager, interim profits shall not be
paid until one year after the end of each underwriting period for
property business and five years after the end of each underwriting
period for casualty business (or , or a
later period set by the commissioner for specified lines of
insurance) insurance, and not until the
adequacy of reserves on remaining claims has been verified pursuant
to subdivision (c) of Section 1781.9.
(k) The reinsurance intermediary-manager shall annually provide
the reinsurer with a statement of its financial condition prepared by
an independent certified accountant and annually shall provide the
reinsurer with a certification from an independent certified public
accountant that the reinsurance intermediary-manager's allocations of
premiums and losses to the reinsurer have been made on a timely and
proper basis.
(l) The reinsurer shall periodically and at least semiannually
conduct an onsite review of the underwriting and claims processing
operations of the reinsurance intermediary-manager.
(m) The reinsurance intermediary-manager shall disclose to the
reinsurer any relationship it has with any insurer prior to ceding or
assuming any business with the insurer pursuant to the contract.
(n) Within the scope of its actual or apparent authority, the acts
of the reinsurance intermediary-manager shall be deemed to be the
acts of the reinsurer on whose behalf it is acting.
SEC. 459. Section 1802.5 of the Insurance Code is amended to read:
1802.5. A bail permittee's license, by its terms, permits the
licensee to solicit, negotiate, issue , and deliver bail
bonds. Such The license shall not be
issued unless and until there is filed with the commissioner
:
(a) A
a bond having an admitted surety insurer as surety thereon
in the penal sum of $5,000 five thousand
dollars ( $5,000) , conditioned upon the proper
application and disposal of all moneys collected or received by the
bail permittee, his or her solicitors licensed pursuant to
his or her appointment, and his or her
employees, in favor of the people of the State of California.
SEC. 460. Section 1842 of the Insurance Code is amended to read:
1842. (a) The provisions of Chapter 5
(commencing with Section 1621) concerning the license period and the
procedure and time for filing applications for renewal of licenses
and for filing notices of intention to keep licenses in force
applicable to life agents are applicable to licenses authorized by
this chapter except that participation in such
the applications or notices by an admitted insurer is not
required.
(b) The fee for filing an application for
the issuance or renewal of a license to act as a life and disability
insurance analyst or an a notice of
intention to keep such a the license in
force is one hundred eighteen dollars ($118). As respects life and
disability insurance analysts all references in Section 1718 to fees
shall be deemed to be to the this fee
herein specified . The fee for filing application
to take the qualifying examination for life and disability insurance
analyst is fifty-nine dollars ($59) and the fee for filing the first
application to take the qualifying examination must be paid at the
same time the application for issuance of the license is paid. The
fees specified in this section shall be paid in advance, and shall be
determined by multiplying the number of natural persons to be
licensed, or to be named on or added to a license, by the amounts
specified in this section as to each such license,
multiplied by the number of license years in the period of the
license applied for, or the remaining period of the existing license
counting any initial fractional license year of the period as one
year for that purpose.
SEC. 461. Section 1874.2 of the Insurance Code is amended to read:
1874.2. (a) Upon written request to an insurer by an authorized
governmental agency, an insurer , or agent
authorized by that insurer to act on behalf of the insurer, shall
release to the requesting authorized governmental agency any or all
relevant information deemed important to the authorized governmental
agency which that the insurer may
possess relating to any specific motor vehicle theft or motor vehicle
insurance fraud. Relevant information may include, but is not
limited to, all of the following:
(1) Insurance policy information relevant to the motor vehicle
theft or motor vehicle insurance fraud under investigation,
including, but not limited to, any application for a policy.
(2) Policy premium payment records which
that are available.
(3) History of previous claims made by the insured.
(4) Information relating to the investigation of the motor vehicle
theft or motor vehicle insurance fraud, including statements of any
person, proof of loss, and notice of loss.
(b) (1) When an insurer knows or reasonably believes it knows the
identity of a person whom it has reason to believe committed a
criminal or fraudulent act relating to a motor vehicle theft or motor
vehicle insurance claim or has knowledge of such a
the criminal or fraudulent act which
that is reasonably believed not to have been
reported to an authorized governmental agency, then, for the purpose
of notification and investigation, the insurer, or an agent
authorized by an insurer to act on its behalf, shall notify the local
police department, sheriff's office, the Department of the
California Highway Patrol, or district attorney's office, and may
notify any other authorized governmental agency of that knowledge or
reasonable belief and provide any additional information in
accordance with subdivision (a).
(2) When an insurer provides the local police department, sheriff'
s office, the Department of the California Highway
Patrol, or district attorney's office with notice pursuant to this
section, it shall be deemed sufficient notice to all authorized
governmental agencies for the purpose of this chapter. Nothing in
this section shall relieve an insurer of its obligations under
Section 12992 of the Insurance Code 1872.4
.
(3) Nothing in this subdivision shall abrogate or impair the
rights or powers created under subdivision (a).
(c) The authorized governmental agency provided with information
pursuant to subdivision (a) or (b) may release or provide that
information to any other authorized governmental agency.
(d) An authorized governmental agency shall notify the affected
insurer in writing when it has reason to believe that a fraudulent
act relating to a motor vehicle theft or motor vehicle insurance
claim has been committed. The agency shall provide this notice within
a reasonable time, not to exceed 30 days. The agency may also
release more specific information pursuant to this section when it
determines that an ongoing investigation would not be jeopardized.
The agency may require a fee from the insurer equal to the cost of
providing the notice or the information specified in this section.
(e) An insurer providing information to an authorized agency
pursuant to this section shall provide the information within a
reasonable time, but not to exceed 30 days from the day on which the
duty arose.
SEC. 462. Section 1903 of the Insurance Code is amended to read:
1903. In a marine insurance, concealment in
respect to any of the following matters does not vitiate the entire
contract, but merely exonerates the insurer from a loss resulting
from the risk concealed:
(a) The national character of the insured.
(b) The liability of the subject matter to capture and detention.
(c) The liability to seizure from breach of foreign laws of trade.
(d) The want of necessary documents.
(e) The use of false and simulated papers.
SEC. 463. Section 10123.141 of the Insurance Code is amended to
read:
10123.141. (a) Every policy of expense
incurred hospital, medical, or surgical insurance issued, amended, or
renewed on or after January 1, 1991, on a group basis, except for
policies which that only provide
coverage for specified diseases or other limited benefit coverage,
shall offer coverage as an option for special footwear needed by
persons who suffer from foot disfigurement under such
the terms and conditions as may be
agreed upon between the group contract holder and the
insurer.
(b) As used in this section, foot
disfigurement shall include, but not be limited to, disfigurement
from cerebral palsy, arthritis, polio, spinabifida
spina bifida , and diabetes, and foot
disfigurement caused by accident or developmental disability.
SEC. 464. 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, which may exceed 12
months from the contract termination date.
(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 are 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 the process by which 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 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 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 , the following terms
have the following meanings :
(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. 465. Section 10136 of the Insurance Code is amended to read:
10136. (a) No transfer of structured settlement payment rights,
either directly or indirectly, shall be effective by a payee
domiciled in this state, or by a payee entitled to receive payments
under a structured settlement funded by an insurance contract issued
by an insurer domiciled in this state or owned by an insurer or
corporation domiciled in this state, and no structured settlement
obligor or annuity issuer shall be required to make any payment
directly or indirectly to a transferee, unless all of the provisions
of this section are satisfied.
(b) Ten or more days before the payee executes a transfer
agreement, the transferee shall provide the payee with a separate
written disclosure statement, accurately completed with the
information that applies to the transfer agreement, in substantially
the following form, in at least 12-point type unless otherwise
indicated (bracketed instructions shall not appear in the form):
"Disclosure Notice Required By Law (14-point boldface type )
You are selling (technically called "transferring")
'transferring' ) your right to
receive your payments under a structured settlement. You should get
this disclosure notice at least 10 days before you sign any contract.
IMPORTANT TERMS: (14-point boldface type )
Total dollar amount of $_________________
payments you are selling:
Present value of amount you $_________________
are selling:
Net amount paid to you: $_________________
For comparison purposes:
If you did not sell your right to receive structured settlement
payments, but instead borrowed the net amount of $____ and paid that
loan back in installments with each of the payments you are now
selling, the equivalent interest rate you would be paying for that
loan would be ____% per year.
(The text and information set forth above under
"IMPORTANT TERMS" 'IMPORTANT TERMS' shall be in
14-point type and circumscribed by a box with a bold border)
To figure the net amount we are paying, we have charged you for
the following expenses:
(itemize in a list by type and amount)
for a total of $____ in expenses.
You should get independent professional advice about whether
selling your structured settlement payments is a good idea for you
and for your dependents.
You also should get independent professional advice from an
accountant or lawyer experienced in tax matters about any income tax
consequences from selling your structured settlement payments. We
cannot give you the name of anyone to advise you.
Court approval is needed (14-point boldface type). A court must
approve any agreement you sign to sell your rights under a structured
settlement. You will not receive any money until the court approves
the sale. Court approval could take more than 30 days following the
day you sign an agreement selling your rights under a structured
settlement.
You may cancel the contract before court approval (14-point
boldface type). You may cancel the agreement selling (or
transferring) your rights under a structured settlement without any
cost or obligation. You may cancel at any time before the court
approves the contract. You will get notice of the date of the court
hearing.
If you want to cancel, you do not need any special form. But, you
must cancel in writing. Send your cancellation to: (insert
transferee's name and address).
If you believe that you have been treated unfairly or have been
misled, you should contact your local district attorney or the state
Attorney General."
(c) The transfer agreement shall be written in at least 12-point
type and shall be complete and without blank spaces to be completed
after the payee's signature. The transfer agreement shall set forth
clear and conspicuously, and in no less than 12-point type, all of
the following:
(1) A statement that the agreement is not effective until the date
on which a court enters a final order approving the transfer
agreement and that payment to the payee pursuant to the transfer
agreement will be delayed up to 30 days or more after the date the
payee signed the transfer agreement in order for the court to review
and approve the transfer agreement.
(2) The amounts and due dates of the structured settlement
payments to be transferred.
(3) The aggregate amount of the structured settlement payments to
be transferred. This amount shall be disclosed in the form prescribed
in subdivision (b) in the space for"Total
for "Total dollar amount of payments you are selling."
(4) The aggregate amount of all expenses, if any, to be deducted
from the purchase price to be paid to the payee in exchange for the
payments to be transferred, and an itemization of all expenses by
type and amount.
(5) The amount payable to the payee, net of all expenses, in
exchange for the payments to be transferred. This amount shall be
disclosed in the form prescribed in subdivision (b) in the spaces
for"Net for "Net amount paid to you"
and "net amount."
(6) The discounted present value of all structured settlement
payments to be transferred and a statement that "This is the value of
your structured settlement in current dollars." This amount shall be
disclosed in the form prescribed in subdivision (b) in the space
for"Present for "Present value of
the amount you are selling."
(7) The federal rate, as described in subdivision (c) of Section
10134, used in determining the discounted present value.
(8) The effective equivalent interest rate, which shall be
disclosed in the following statement:
"YOU WILL BE PAYING THE EQUIVALENT OF AN INTEREST RATE OF ____%
PER YEAR.
Based on the net amount that you will receive from us and the
amounts and timing of the structured settlement payments that you are
transferring to us, if the transferred structured settlement
payments were installment payments on a loan, with each payment
applied first to accrued unpaid interest and then to principal, it
would be as if you were paying interest to us of ____% per year,
assuming funding on the effective date of transfer."
This percentage amount shall be disclosed in the form prescribed
in subdivision (b) in the space for "the equivalent interest rate you
would be paying for this loan would be ____% per year."
(9) The quotient (expressed as a percentage) obtained by dividing
the net payment amount by the discounted present value of the
payments.
(10) A statement that the payee should obtain independent
professional advice regarding any federal and state income tax
consequences arising from the proposed transfer, and that the
transferee may not refer the payee to any specific adviser for that
purpose.
(11) A statement that the court approving the transfer agreement
retains continuing jurisdiction to interpret and monitor
implementation of the agreement as justice may require.
(12) The following statement: "If you believe you were treated
unfairly or were misled as to the nature of the obligations you
assumed upon entering into this agreement, you should report those
circumstances to your local district attorney or the office of the
Attorney General."
(13) The following statement printed in 14-point type,
circumscribed by a box with a bold border, and set forth immediately
above or adjacent to the space reserved for the payee's signature:
"You have the right to cancel this agreement without any cost or
obligation until the date the court approves this agreement. You will
receive notice of the court hearing date when approval may occur.
You must cancel in writing and send your cancellation to (insert
transferee's name and address)."
(d) The contract for transferring the structured settlement
payment rights may not violate Section 10138.
(e) At any time before the date on which a court enters a final
order approving the transfer agreement pursuant to Section 10139.5,
the payee may cancel the transfer agreement, without cost or further
obligation, by providing written notice of cancellation to the
transferee.
SEC. 466. Section 10203.4 of the Insurance Code is amended to
read:
10203.4. (a) Insurance
under any group life insurance policy issued pursuant to Sections
10202, 10202.7, 10202.8, 10203, 10203.1, and
10203.7 may, if 75 percent of the insured employees elect, be
extended to insure the dependents, or any class or classes thereof,
of each insured employee who so elects, in amounts in accordance with
some plan which that precludes
individual selection and which that
shall not be in excess of 50 percent of the insurance on the life of
such the insured employee.
(b) "Dependent" includes the member's spouse
and all unmarried children from birth through 20 years of age, or
through age 22 , years if the dependent
child is attending an educational institution, or a child 21 years
of age or over older who is both
(a) incapable of self-sustaining employment by
reason of mental retardation or physical handicap and (b)
chiefly dependent upon the employee for support and
maintenance , provided if proof of
such the incapacity and dependency is
furnished to the insurer by the employee within 31 days of the child'
s attainment of the limiting age and subsequently as may be required
by the insurer, but not more frequently than annually after the
two-year period following the child's attainment of the limiting age.
(c) The premiums for the insurance on
such the dependents may be paid by the
employer or by , the employee ,
or by the employer and the employee jointly.
SEC. 467. Section 10203.5 of the Insurance Code is amended to
read:
10203.5. (a) Life insurance conforming to all the following
conditions is another form of group life insurance:
(1) Covering one of the following groups:
(A) All members are or become borrowers from one financial
institution, including subsidiary or affiliated persons, under an
agreement to repay the sum borrowed.
(B) All members are or become purchasers of merchandise or other
property (exclusive , exclusive
of securities, investment certificates , and bank
deposits) deposits, under an agreement
to pay the balance of the purchase price.
(2) The group numbers not less than 100 new entrants yearly or, in
the case of a credit union, not less than 50 borrowers yearly.
(3) The amount insured on any one borrower or purchaser does not
exceed:
(A) The amount of the loan commitment in the case of an
agricultural or horticultural loan commitment (as
, as defined in Section 10203.55)
10203.55, repayable in one sum or in irregular
installments within a period not in excess of 18 months from the
initial date of the loan commitment.
(B) In all other cases , the balance of the
indebtedness to the financial institution or vendor.
(4) The repayment or payment of purchase price is to be made
, under the agreement of loan or purchase
; in substantially equal installments over a period not
exceeding 40 years ; or , in
installments that may vary according to the terms of a signed
agreement ; or , in payments or
installments in accordance with the usual terms of the creditor in
the case of an open-ended agreement to extend credit, a revolving
loan , or revolving charge account ;
, or in one sum or irregular installments within a period
not in excess of 18 months from the initial date of the commitment on
an agricultural or horticultural loan.
(5) The policy is issued upon application of and made payable to
the financial institution, vendor, or a creditor to whom
such the vendor may transfer title to the
indebtedness, as beneficiary, and the premiums are paid by or through
the financial institution, vendor, or such
creditor.
(b) A policy of insurance conforming to the provisions of
this section is not subject to the provisions of
Section 10209 or 10213 of this code
or Section 704.100 of the Code of Civil Procedure .
SEC. 468. Section 10203.8 of the Insurance Code is amended to
read:
10203.8. Life insurance conforming to all of the following
conditions is another form of group life insurance:
(a) Covering the lives of every eligible member of a group of
persons who become or are named depositors under a savings account
plan, established by a financial institution including subsidiary or
affiliated persons, which plan provides for periodic deposits of like
amounts.
(b) The period during which such the
deposits may be made under the plan does not exceed 60 consecutive
months, and the total amount of insurance under the policy on any one
depositor does not exceed the difference between the amounts
deposited and the maximum amount which that
may be deposited under the plan and does not exceed one
thousand five hundred dollars ($1,500) on any one life.
(c) The group numbers 100 new entrants yearly.
(d) The policy is issued upon application of and made payable to
the financial institution as beneficiary, and the premiums are paid
by or through the financial institution.
(e) The policy of insurance conforming to the provisions
of this section is not subject to the provisions
of Section 10209 or 10213 of this
code or Section 704.100 of the Code of Civil Procedure .
SEC. 469. Section 10209 of the Insurance Code is amended to read:
10209. (a) Except as provided by Sections
10203.5 , 10203.6 and 10203.8, the policy shall
contain a provision that the insurer will issue to the employer for
delivery to the insured employee an individual certificate setting
forth:
(a)
(1) A statement as to the insurance protection to which
the employee is entitled and to whom payable.
(b)
(2) A provision that if the employment terminates for
any reason whatsoever and the employee applies to the insurer within
31 days after such the termination,
paying the premium applicable to the class of risk to which he
or she belongs and to the form and amount of the policy at his
or her then attained age, he or she is
entitled, without producing evidence of insurability, to the issue by
the insurer of any individual life policy in any one of the forms,
other than term insurance, customarily issued by the insurer.
(c)
(3) A statement that such the
policy in lieu of group insurance will be in an amount equal to
the amount of his or her protection under such
the group insurance at the time of such
the termination.
(d)
(4) A provision that if the employee dies during the
31-day period within which he or she is
entitled to have an individual policy issued to him or her
in accordance with this section and before any such
the policy shall have become effective, the
amount of life insurance which that the
employee is entitled to have issued to him or her under
such the individual policy shall be
payable as a claim under the group policy, whether or not application
for the individual policy or the payment of the first premium
therefor has been made.
(b) If any employee insured under a group
life insurance policy delivered in this state becomes entitled under
the terms of such the policy to have an
individual policy of life insurance issued to him or her
without evidence of insurability, subject to making of application
and payment of the first premium within the period specified in
such the policy, and if such
the employee is not given notice of the
existence of such the right at least 15
days prior to the expiration date of such
the period, then, in such event the employee
shall have an additional period within which to exercise
such the right, but nothing herein
contained in this section shall be construed to
continue any insurance beyond the period provided in such
the policy. This additional period shall expire
25 days next after the employee is given such
the notice but in no event shall such
the additional period extend beyond 60 days next after the
expiration date of the period provided in such
the policy. Written notice presented to the employee or
mailed by the policyholder to the last-known address of the employee
or mailed by the insurer to the last-known address of the employee as
furnished by the policyholder shall constitute notice for the
purpose of this section.
The provisions of (b) and (d) and the preceding paragraph
(c) Paragraphs (2) and (4) of
subdivision (a), and subdivision (b), shall apply to any
insurance issued pursuant to Section 10203.4 on the life of a spouse
of an employee.
(d) The contract of insurance and individual
certificate may contain provisions defining the extent to which the
employer acts as the agent of the employee or may act as the agent of
the insurer.
SEC. 470. Section 10350.2 of the Insurance Code is amended to
read:
10350.2. A disability policy shall contain a provision
which that shall be in one of the two forms set
forth herein in this section . Policies
other than noncancellable policies shall use Form A. Noncancellable
policies shall use either Form A or Form B. In Form B ,
the clause in parentheses in paragraph (a) may be omitted at the
insurer's option. Paragraph (a) in Form A shall not be so construed
as to affect any legal requirement for avoidance of a policy or
denial of a claim during the initial two-year period, nor to limit
the application of Sections 10369.2 to 10369.6, inclusive, in the
event of misstatement with respect to age or occupation or other
insurance.Form A.
Time Limit on Certain Defenses: (a) After two years from the date
of issue of this policy , no misstatements, except
fraudulent misstatements, made by the applicant in the application
for such the policy shall be used to
void the policy or to deny a claim for loss incurred or disability
(as defined in the policy) commencing after the expiration of
such the two-year period.
(b) No claim for loss incurred or disability (as defined in the
policy) commencing after two years from the date of issue of this
policy shall be reduced or denied on the ground that a disease or
physical condition not excluded from coverage by name or specific
description effective on the date of loss had existed prior to the
effective date of coverage of this policy.Form B.
Incontestable: (a) After this policy has been in force for a
period of two years during the lifetime of the insured (excluding any
period during which the insured is disabled), it shall become
incontestable as to the statements contained in the application.
(c)
(b) No claim for loss incurred or disability (as
defined in the policy) commencing after two years from the date of
issue of this policy shall be reduced or denied on the ground that a
disease or physical condition not excluded from coverage by name or
specific description effective on the date of loss had existed prior
to the effective date of coverage of this policy.
SEC. 471. Section 11580.1 of the Insurance Code is amended to
read:
11580.1. (a) No policy of automobile liability insurance
described in Section 16054 of the Vehicle Code covering liability
arising out of the ownership, maintenance, or use of any motor
vehicle shall be issued or delivered in this state on or after the
effective date of this section unless it contains the provisions set
forth in subdivision (b). However, none of the requirements of
subdivision (b) shall apply to the insurance afforded under the
policy (1) to the extent that the insurance exceeds the limits
specified in subdivision (a) of Section 16056 of the Vehicle Code, or
(2) if the policy contains an underlying insurance requirement, or
provides for a retained limit of self-insurance, equal to or greater
than the limits specified in subdivision (a) of Section 16056 of the
Vehicle Code.
(b) Every policy of automobile liability insurance to which
subdivision (a) applies shall contain all of the following
provisions:
(1) Coverage limits not less than the limits specified in
subdivision (a) of Section 16056 of the Vehicle Code.
(2) Designation by explicit description of, or appropriate
reference to, the motor vehicles or class of motor vehicles to which
coverage is specifically granted.
(3) Designation by explicit description of the purposes for which
coverage for those motor vehicles is specifically excluded.
(4) Provision affording insurance to the named insured with
respect to any owned or leased motor vehicle covered by the policy,
and to the same extent that insurance is afforded to the named
insured, to any other person using the motor vehicle, provided the
use is by the named insured or with his or her permission, express or
implied, and within the scope of that permission, except that:
(i) (A) with regard to insurance
afforded for the loading or unloading of the motor vehicle, the
insurance may be limited to apply only to the named insured, a
relative of the named insured who is a resident of the named insured'
s household, a lessee or bailee of the motor vehicle, or an employee
of any of those persons; and (ii) (B)
the insurance afforded to any person other than the named insured
need not apply to: (A) (i) any employee
with respect to bodily injury sustained by a fellow employee injured
in the scope and course of his or her employment, or (B)
(ii) any person, or to any agent or employee
thereof, employed or otherwise engaged in the business of selling,
repairing, servicing, delivering, testing, road-testing, parking, or
storing automobiles with respect to any accident arising out of the
maintenance or use of a motor vehicle in connection therewith. As
used in this chapter, "owned motor vehicle" includes all motor
vehicles described and rated in the policy.
(c) In addition to any exclusion provided in paragraph (3) of
subdivision (b), the insurance afforded by any policy of automobile
liability insurance to which subdivision (a) applies, including the
insurer's obligation to defend, may, by appropriate policy provision,
be made inapplicable to any or all of the following:
(1) Liability assumed by the insured under contract.
(2) Liability for bodily injury or property damage caused
intentionally by or at the direction of the insured.
(3) Liability imposed upon or assumed by the insured under any
workers' compensation law.
(4) Liability for bodily injury to any employee of the insured
arising out of and in the course of his or her employment.
(5) Liability for bodily injury to an insured or liability for
bodily injury to an insured whenever the ultimate benefits of that
indemnification accrue directly or indirectly to an insured.
(6) Liability for damage to property owned, rented to, transported
by, or in the charge of, an insured. A motor vehicle operated by an
insured shall be considered to be property in the charge of an
insured.
(7) Liability for any bodily injury or property damage with
respect to which insurance is or can be afforded under a nuclear
energy liability policy.
(8) Any motor vehicle or class of motor vehicles, as described or
designated in the policy, with respect to which coverage is
explicitly excluded, in whole or in part.
The term "the "The insured" as used
in paragraphs (1), (2), (3), and (4) shall mean only that insured
under the policy against whom the particular claim is made or suit
brought. The term "an "An insured" as
used in paragraphs (5) and (6) shall mean any insured under the
policy including those persons who would have otherwise been included
within the policy's definition of an insured but, by agreement, are
subject to the limitations of paragraph (1) of subdivision (d).
(d) Notwithstanding the provisions of paragraph
(4) of subdivision (b), or the provisions of
Article 2 (commencing with Section 16450) of Chapter 3 of Division 7
of, or Article 2 (commencing with Section 17150) of Chapter 1 of
Division 9 of, the Vehicle Code, the insurer and any named insured
may, by the terms of any policy of automobile liability insurance to
which subdivision (a) applies, or by a separate writing relating
thereto, agree as to either or both of the following limitations, the
agreement to be binding upon every insured to whom the policy
applies and upon every third-party claimant:
(1) That coverage and the insurer's obligation to defend under the
policy shall not apply nor accrue to the benefit of any insured or
any third-party claimant while any motor vehicle is being used or
operated by a natural person or persons designated by name. These
limitations shall apply to any use or operation of a motor vehicle,
including the negligent or alleged negligent entrustment of a motor
vehicle to that designated person or persons. This agreement applies
to all coverage provided by that policy and is sufficient to comply
with the requirements of paragraph (2) of subdivision (a) of Section
11580.2 to delete coverage when a motor vehicle is operated by a
natural person or persons designated by name. The insurer shall have
an obligation to defend the named insured when all of the following
apply to that designated natural person:
(A) He or she is a resident of the same household as the named
insured.
(B) As a result of operating the insured motor vehicle of the
named insured, he or she is jointly sued with the named insured.
(C) He or she is an insured under a separate automobile liability
insurance policy issued to him or her as a named insured, which
policy does not provide a defense to the named insured.
An agreement made by the insurer and any named insured more than
60 days following the inception of the policy excluding a designated
person by name shall be effective from the date of the agreement and
shall, with the signature of a named insured, be conclusive evidence
of the validity of the agreement.
That agreement shall remain in force as long as the policy remains
in force, and shall apply to any continuation, renewal, or
replacement of the policy by the named insured, or reinstatement of
the policy within 30 days of any lapse thereof.
(2) That with regard to a policy issued to a named insured engaged
in the business of leasing vehicles for those vehicles that are
leased for a term in excess of six months, or selling, repairing,
servicing, delivering, testing, road-testing, parking, or storing
automobiles, coverage shall not apply to any person other than the
named insured or his or her agent or employee, except to the extent
that the limits of liability of any other valid and collectible
insurance available to that person are not equal to the limits of
liability specified in subdivision (a) of Section 16056 of the
Vehicle Code. If the policy is issued to a named insured engaged in
the business of leasing vehicles, which business includes the lease
of vehicles for a term in excess of six months, and the lessor
includes in the lease automobile liability insurance, the terms and
limits of which are not otherwise specified in the lease, the named
insured shall incorporate a provision in each vehicle lease contract
advising the lessee of the provisions of this subdivision and the
fact that this limitation is applicable except as otherwise provided
for by statute or federal law.
(e) Nothing in this section or in Section 16054 or 16450 of the
Vehicle Code shall be construed to constitute a homeowner's policy,
personal and residence liability policy, personal and farm liability
policy, general liability policy, comprehensive personal liability
policy, manufacturers' and contractors' policy, premises liability
policy, special multiperil policy, or any policy or endorsement where
automobile liability coverage is offered as incidental to some other
basic coverage as an "automobile liability policy" within the
meaning of Section 16054 of the Vehicle Code, or as a "motor vehicle
liability policy" within the meaning of Section 16450 of the Vehicle
Code, nor shall any provision of this section
apply to a policy that provides insurance covering liability arising
out of the ownership, maintenance, or use of any motor vehicle in the
Republic of Mexico issued or delivered in this state by a
nonadmitted Mexican insurer, notwithstanding that the policy may
provide automobile or motor vehicle liability coverage on insured
premises or the ways immediately adjoining.
(f) (1) On and after January 1, 1976, no
policy of automobile liability insurance described in subdivision (a)
shall be issued, amended, or renewed in this state if it contains
any provision that expressly or impliedly excludes from coverage
under the policy the operation or use of an insured motor vehicle by
the named insured in the performance of volunteer services for a
nonprofit charitable organization or governmental agency by providing
social service transportation. This subdivision shall not apply in
any case in which the named insured receives any remuneration of any
kind other than reimbursement for actual mileage driven in the
performance of those services at a rate not to exceed the following:
(1)
(A) For the 1980-81 fiscal year, the maximum rate
authorized by the State Board of Control
California Victim Compensation and Government Claims Board ,
which shall also be known as the "base rate."
(2)
(B) For each fiscal year thereafter, the greater of
either (A) the maximum rate authorized by the State Board of
Control California Victim Compensation and Government
Claims Board or (B) the base rate as adjusted by the
California Consumer Price Index.
(2) No policy of insurance issued under this
section may be canceled by an insurer solely for the reason that the
named insured is performing volunteer services for a nonprofit
charitable organization or governmental agency consisting of
providing social service transportation.
(3) For the purposes of this section,
"social service transportation" means transportation services
provided by private nonprofit organizations or individuals to either
individuals who are senior citizens or individuals or groups of
individuals who have special transportation needs because of physical
or mental conditions and supported in whole or in part by funding
from private or public agencies.
(g) Notwithstanding the provisions of paragraph
(4) of subdivision (b) of this section , or
the provisions of Article 2 (commencing with
Section 16450) of Chapter 3 of Division 7 of, or Article 2
(commencing with Section 17150) of Chapter 1 of Division 9 of, the
Vehicle Code, a Mexican nonadmitted insurer and any named insured
may, by the terms of any policy of automobile insurance for use
solely in the Republic of Mexico to which subdivision (a) applies, or
by a separate writing relating thereto, agree to the limitation that
coverage under that policy shall not apply to any person riding in
or occupying a vehicle owned by the insured or driven by another
person with the permission of the insured. The agreement shall be
binding upon every insured to whom the policy applies and upon any
third-party claimant.
(h) No policy of automobile insurance that provides insurance
covering liability arising out of the ownership, maintenance ,
or use of any motor vehicle solely in the Republic of Mexico
issued by a nonadmitted Mexican insurance company, shall be subject
to, or provide coverage for, those coverages provided in Section
11580.2.
SEC. 472. Section 11872 of the Insurance Code is amended to read:
11872. The fund may annually enter into agreements with state
agencies for service to be rendered to the fund. Such
These state agencies include, but shall not be
limited to: the Department of Finance, Department of General
Services, State Personnel Board, and the Public Employees' Retirement
System. If such these agencies and the
fund cannot agree upon the cost of services provided by
such the agreements, the State Board of
Control California Victim Compensation and Government
Claims Board shall be requested to arrive at an equitable
settlement.
SEC. 473. Section 12640.02 of the Insurance Code is amended to
read:
12640.02. The definitions set forth in this article shall govern
the construction of the terms used in this chapter but shall not
affect any other provisions of this code.
(a) "Mortgage guaranty insurance" means:
(1) Insurance against financial loss by reason of nonpayment of
principal, interest, and other sums agreed to be paid under the terms
of any note or bond or other evidence of indebtedness secured by a
mortgage, deed of trust, or other instrument constituting a first
lien or charge on real estate, provided the improvement on the real
estate is a residential building or a condominium unit or buildings
designed for occupancy by not more than four families.
(2) Insurance against financial loss by reason of nonpayment of
principal, interest, and other sums agreed to be paid under the terms
of any note or bond or other evidence of indebtedness secured by a
mortgage, deed of trust, or other instrument constituting a junior
lien or charge on real estate, provided the improvement on the real
estate is a residential building or a condominium unit or building
designed for occupancy by not more than four families.
(3) Insurance against financial loss by reason of nonpayment of
principal, interest , and other sums agreed to be paid
under the terms of any note or bond or other evidence of indebtedness
secured by a mortgage, deed of trust, or other instrument
constituting a lien or charge on real estate, provided the
improvement on the real estate is a building or buildings designed
for occupancy by five or more families or designed to be occupied for
industrial or commercial purposes.
(4) Insurance against financial loss by reason of nonpayment of
rent and other sums agreed to be paid under the terms of a written
lease for the possession, use , or occupancy of real
estate, provided the improvement on the real estate is a building or
buildings designed to be occupied for industrial or commercial
purposes.
(b) (1) "Authorized real estate security" for the purposes of this
chapter means either (A) real estate, plus the balance of any
pledged cash account, pledged borrower retirement account, or
collateralized guaranty agreement contracted for by parents, blood
relatives, employers, or nonprofit corporations for the benefit of
the borrower; or (B) real estate securing a note, bond, or other
evidence of indebtedness by a junior mortgage, deed of trust, or
other instrument constituting a junior lien or charge on the real
estate, which, when combined
with all existing mortgage loan amounts, does not exceed a total
indebtedness equal to 103 percent of the fair market value of the
real estate at the time the junior loan is made, provided that, in
determining the foregoing 103 percent 103-
percent limitation, if the loan securing the junior
lien is an equity line of credit loan, the full amount of the line of
credit to be secured by the junior lien shall be considered the
amount of the loan, and further provided, in all cases that both of
the following are true:
(i) The real estate loan secured in this manner is any type of
loan which that a bank, savings
and loan association, mortgage banker, credit
union, mortgage loan broker, or an insurance
company, which is supervised and regulated by a department of this
state or an agency of the federal government, is authorized to make
or arrange, or would be authorized to make or arrange, disregarding
any requirement applicable to an institution that the amount of the
loan not exceed a certain percentage of the value of the real estate.
(ii) The improvement on the real estate is a building or buildings
designed for occupancy as specified by paragraphs (1), (2), and (3)
of subdivision (a).
(C)
(2) The lien on the real estate may be subject and
subordinate to the following:
(i)
(A) The lien of any public bond, assessment, or tax,
when no installment, call, or payment of or under the bond,
assessment, or tax is delinquent.
(ii)
(B ) Outstanding mineral, oil or timber
rights, rights-of-way, easements or rights-of-way or support, sewer
rights, building restrictions or other restrictions or covenants,
conditions or regulations of use, or outstanding leases upon the real
property under which rents or profits are reserved to the owner
thereof.
(2)
(3) "Authorized real estate security" also means a
stock or membership certificate issued to a tenant-stockholder or
resident-member by a completed fee simple cooperative housing
corporation, as defined in Section 17265 of the Revenue and Taxation
Code and Section 216 of the United States Internal Revenue Code.
(c) "Contingency reserve" means an additional premium reserve
established for the protection of policyholders against the effect of
adverse economic cycles.
(d) "Policyholders surplus" means the aggregate of capital,
surplus , and contingency reserve.
SEC. 474. Section 12698.50 of the Insurance Code is amended to
read:
12698.50. (a) (1) It shall
constitute unfair competition for purposes of Chapter 5 (commencing
with Section 17200) of Part 2 of Division 7 of the Business and
Professions Code for an insurer, an insurance agent or broker, or an
administrator, as defined in Section 1759, to refer an individual
employee or employee's dependent to the program, or arrange for an
individual employee or employee's dependent to apply to the program,
for the purpose of separating that employee or employee's dependent
from group health coverage provided in connection with the employee's
employment.
(b) Any employee described in subdivision (a) shall have a
personal right of action to enforce subdivision (a).
SEC. 475. Section 12698.54 of the Insurance Code is amended to
read:
12698.54. It shall constitute an unfair labor practice contrary
to public policy and enforceable under Section 95 of the Labor Code
for any employer to change the employee-employer share-of-cost ratio
or to make any other modification of maternity care coverage for
employees or employees' dependents that results in the enrollment of
the employees or employees' dependents in the program established
pursuant to this part.
SEC. 476. Section 15039 of the Insurance Code is amended to read:
15039. The commissioner may suspend or revoke a license issued
under this chapter if he or she determines that the licensee has done
any of the following:
(a) Made any false statement or given any false information in
connection with an application for a license or a renewal or
reinstatement of the license.
(b) Violated any provision of this chapter.
(c) Violated any rule of the commissioner adopted pursuant to the
authority contained in this chapter.
(d) Been convicted of any crime substantially related to the
qualifications, functions, and duties of the holder of the
registration or license in question.
(e) Impersonated, or permitted, or aided and abetted an employee
to impersonate a law enforcement officer or employee of the United
States of America, or of any state or subdivision thereof.
(f) Committed or permitted any employee to commit any act, while
the license was expired which would be cause for the suspension or
revocation of a license, or grounds for the denial of an application
for a license.
(g) Willfully failed or refused to render to a client services or
a report as agreed between the parties and for which compensation has
been paid or tendered in accordance with the agreement of the
parties.
(h) Committed assault, battery, or kidnapping, or used force or
violence on any person.
(i) Knowingly violated, or advised, encouraged, or assisted the
violation of any court order or injunction in the course of business
as a licensee.
(j) Acted as a runner or caper capper
for any attorney.
(k) Committed any act which is a ground for denial of an
application for license under this chapter.
(l) Manufactured evidence.
(m) Acceptance of employment adverse to a client or former client
relating to a matter with respect to which the licensee has obtained
confidential information by reason of or in the course of his or her
employment by that client or former client.
SEC. 477. Section 98 of the Labor Code is amended to read:
98. (a) The Labor Commissioner shall have the authority to
investigate employee complaints. The Labor Commissioner may provide
for a hearing in any action to recover wages, penalties, and other
demands for compensation properly before the division or the Labor
Commissioner , including orders of the Industrial Welfare
Commission, and shall determine all matters arising under his or her
jurisdiction. It shall be within the jurisdiction of the Labor
Commissioner to accept and determine claims from holders of payroll
checks or payroll drafts returned unpaid because of insufficient
funds, if, after a diligent search, the holder is unable to return
the dishonored check or draft to the payee and recover the sums paid
out. Within 30 days of the filing of the complaint, the
Labor Commissioner shall notify the parties as to whether a hearing
will be held, or whether action will be taken in
accordance with Section 98.3, or whether no further action will be
taken on the complaint. If the determination is made by the Labor
Commissioner to hold a hearing, the hearing shall be held within 90
days of the date of that determination. However, the Labor
Commissioner may postpone or grant additional time before setting a
hearing if the Labor Commissioner finds that it would lead to an
equitable and just resolution of the dispute.
It is the intent of the Legislature that hearings held pursuant to
this section be conducted in an informal setting preserving the
right of the parties.
(b) When a hearing is set, a copy of the complaint, which shall
include the amount of compensation requested, together with a notice
of time and place of the hearing, shall be served on all parties,
personally or by certified mail, or in the manner specified in
Section 415.20 of the Code of Civil Procedure.
(c) Within 10 days after service of the notice and the complaint,
a defendant may file an answer with the Labor Commissioner in any
form as the Labor Commissioner may prescribe, setting forth the
particulars in which the complaint is inaccurate or incomplete and
the facts upon which the defendant intends to rely.
(d) No pleading other than the complaint and answer of the
defendant or defendants shall be required. Both shall be in writing
and shall conform to the form and the rules of practice and procedure
adopted by the Labor Commissioner.
(e) Evidence on matters not pleaded in the answer shall be allowed
only on terms and conditions the Labor Commissioner shall impose. In
all these cases, the claimant shall be entitled to a continuance for
purposes of review of the new evidence.
(f) If the defendant fails to appear or answer within the time
allowed under this chapter, no default shall be taken against him or
her, but the Labor Commissioner shall hear the evidence offered and
shall issue an order, decision, or award in accordance with the
evidence. A defendant failing to appear or answer, or subsequently
contending to be aggrieved in any manner by want of notice of the
pendency of the proceedings, may apply to the Labor Commissioner for
relief in accordance with Section 473 of the Code of Civil Procedure.
The Labor Commissioner may afford this relief. No right to relief,
including the claim that the findings or award of the Labor
Commissioner or judgment entered thereon are void upon their face,
shall accrue to the defendant in any court unless prior application
is made to the Labor Commissioner in accordance with this chapter.
(g) All hearings conducted pursuant to this chapter are governed
by the division and by the rules of practice and procedure adopted by
the Labor Commissioner.
(h) (1) Whenever a claim is filed under this
chapter against a person operating or doing business under a
fictitious business name, as defined in Section 17900 of the Business
and Professions Code, which relates to the person's business, the
division shall inquire at the time of the hearing whether the name of
the person is the legal name under which the business or person has
been licensed, registered, incorporated, or otherwise authorized to
do business.
(2) The division may amend an order,
decision, or award to conform to the legal name of the business or
the person who is the defendant to a wage claim, provided
if it can be shown that proper service was made
on the defendant or his or her agent, unless a judgment had been
entered on the order, decision, or award pursuant to subdivision (d)
of Section 98.2. The Labor Commissioner may apply to the clerk of the
superior court to amend a judgment that has been issued pursuant to
a final order, decision, or award to conform to the legal name of the
defendant, provided if it can be shown
that proper service was made on the defendant or his or her agent.
SEC. 478. Section 142.4 of the Labor Code is amended to read:
142.4. (a) Occupational safety and health standards and orders
shall be adopted, amended, or repealed as provided in Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code, except as modified by this chapter.
(b) If an emergency regulation is based upon an emergency
temporary standard published in the Federal Register by the Secretary
of Labor pursuant to Section 6(c)(1) of the Federal Occupational
Safety and Health Act of 1970 (P.L. 91-596)
91-596; 29 U.S.C. Sec. 655(c)(1)) , the 120-day period
specified in Section 11422.1 11346.1 of
the Government Code shall be deemed not to expire until 120 days
after a permanent standard is promulgated by the Secretary of Labor
pursuant to Section 6(c)(3) , of the Federal
Occupational Safety and Health Act of 1970 (29 U.S.C. Sec. 655
(c)(3)) .
SEC. 479. Section 226.4 of the Labor Code is amended to read:
226.4. If, upon inspection or investigation, the Labor
Commissioner determines that an employer is in violation of
subdivision (a) of Section 226, the Labor Commissioner may issue a
citation to the person in violation. The citation may be served
personally or by registered mail in accordance with subdivision (c)
of Section 11505 of the Government Code. Each citation shall be in
writing and shall describe the nature of the violation, including
reference to the statuory statutory
provision alleged to have been violated.
SEC. 480. Section 243 of the Labor Code is amended to read:
243. (a) If, within 10 years of either a conviction for a
violation of this article or of failing to satisfy
a judgment for nonpayment of wages, or of both, it is
alleged that an employer on a second occasion has been convicted of
again violating this article or is failing to satisfy a judgment for
nonpayment of wages, an employee or the employee's legal
representative, an attorney licensed to practice law in this state,
may, on behalf of himself or herself and others, bring an action in a
court of competent jurisdiction for a temporary restraining order
prohibiting the employer from doing business in this state unless the
employer deposits with the court a bond to secure compliance by the
employer with this article or to satisfy the judgment for nonpayment
of wages.
(b) Upon the filing of an affidavit which
that , to the satisfaction of the court, shows reasonable proof
that an employer, for the second time within 10 years, has been
convicted of violating this article or has failed to satisfy a
judgment for the nonpayment of wages, or both, the court, pursuant to
Section 527 of the Code of Civil Procedure, may grant a temporary
restraining order which that prohibits
the employer within 30 days from conducting any business within the
state, unless the employer deposits a bond payable to the Labor
Commissioner which that is conditioned
on the employer making wage payments in accordance with this article,
or upon satisfaction by the employer of any judgment for nonpayment
of wages, or both. The court shall order that the bond be deposited
with the court by the employer at any point in time that, within a
five-year period from the date of the order, the employer employs
more than 10 employees. The court shall order that the bond be in an
amount equal to twenty-five thousand dollars ($25,000) or 25 percent
of the weekly gross payroll of the employer at the time of the
posting of the bond, whichever is greater, and that the term of the
bond be for the duration of the service of the employee who brought
the action, until past due wages have been paid, or until
satisfaction of a judgment for nonpayment of wages.
(c) For purposes of subdivision (b), an employer shall be deemed
to have been convicted of having violated this article or to have
failed to satisfy a judgment for the second time within 10 years if,
to secure labor or personal services in connection with his or her
business, the employer uses the services of an agent, contractor, or
subcontractor who is convicted of a violation of this article or
fails to satisfy a judgment for wages respecting those employees, or
both, but only if the employer had actual knowledge of the person's
failure to pay wages. In issuing a temporary restraining order
pursuant to this section, the court, in determining the amount and
term of the bond, shall count the agent's, contractor's, or
subcontractor's employees as part of the employer's total work force.
This subdivision shall not apply where a temporary restraining order
against the agent, contractor, or subcontractor as an employer
has been issued , as an employer, pursuant
to subdivision (b).
(d) An employer who, for the third time within 10 years of the
first occurrence, is alleged to have violated this article or to have
failed to satisfy a judgment for nonpayment of wages, or both, shall
be deemed by the court to have commenced a new five-year period for
which the posting of a bond may be ordered in accordance with
subdivision (b), except that the court may, in its discretion,
require the posting of a bond in a greater amount as it determines
appropriate under the circumstances.
(e) A former employee who was a party to an earlier action against
an employer in which a judgment for the payment of wages was
obtained, and who alleges that the employer has failed to satisfy the
judgment for the payment of wages, in addition to any other
available remedy, may petition the court pursuant to subdivision (b)
for a temporary restraining order against the employer to cease doing
business in this state unless the employer posts a bond with the
court.
(f) Actions brought pursuant to this section shall be set for
trial at the earliest possible date, and shall take precedence over
all other cases, except older matters of the same character and
matters to which special precedence may be given by law.
(g) Nothing in this section shall be construed to impose any
mandatory duties on the Labor Commissioner.
SEC. 481. Section 270.6 of the Labor Code is amended to read:
270.6. (a) No person , or agent or officer thereof,
without a permanent and fixed place of business or residence in this
state who uses or employs any person in the door-to-door selling of
any merchandise, or in any similar itinerant
activity, or in any telephone solicitation, shall fail or neglect
, before commencing work in any period for which any
single payment of wages is made or for four calendar weeks, whichever
is longer, to do any one of the following:
(1) Have on hand or on deposit with a bank or trust company in the
county where such the business is
conducted, or if there is no bank or trust company in the county,
then in the bank or trust company nearest such
these operations, cash or readily salable securities of a
market value sufficient to pay the wages of every person employed in
connection with such these operations
for such that period , or
described in this subdivision.
(2) Deposit with the Labor Commissioner the bond of a surety
company authorized to do business within the state, acceptable to the
Labor Commisioner Commissioner ,
conditioned upon the payment of all wages found to be due and unpaid
in connection with such these
operations under any provision of this code , or
.
(3) Deposit with the Labor Commissioner a time certificate of
deposit indicating that the person, agent , or officer
subject to the provisions of this section has
deposited with a bank or trust company cash payable to the order of
the Labor Commissioner sufficient to pay the wages of every person
employed in connection with such these
operations for such that period
described in this subdivision .
(b) The cash and securities on deposit referred to in subdivision
(a) shall not be commingled with other deposits, securities, or
property of the employer and shall be held in trust and shall not be
used for any other purpose than paying the wages due employees.
Such The moneys so held in trust are
not subject to enforcement of a money judgment by any other creditor
of the employer.
(c) Any person, or agent or officer thereof, who violates this
section is guilty of a misdemeanor.
SEC. 482. Section 1182.6 of the Labor Code is amended to read:
1182.6. (a) No employer who continuously operates a manufacturing
facility 24 hours a day for seven days a week, and who has had in
operation an established preexisting workweek arrangement, as defined
in subdivision (b), shall be in violation of any provision
of this code or any applicable wage order of the commission
by instituting, pursuant to an agreement voluntarily executed by the
employer and at least two-thirds of the affected employees before
the performance of the work, a regularly scheduled workweek
which that includes three working days of not
more than 12 hours a day, or regularly scheduled workweeks
which that include three working days of not
more than 12 hours a day one week , and four
working days of not more than 12 hours a day in the following week
, for an average workweek of 42 hours over a
two-week period.
(b) For purposes of this section only, a "preexisting workweek
arrangement" is defined as, and limited to, a workweek arrangement
that existed before November 1980, and had to be modifed
modified or abandoned by an employer because the
workweek arrangement did not qualify for any exemption provided by
the Industrial Welfare Commission from its daily overtime
requirements for collectively bargained arrangements, and did not
otherwise comply with the daily overtime requirements of an
applicable commission order.
(c) The agreement described in subdivision (a) shall be confirmed
by an affirmative vote by secret ballot by at least two-thirds of the
affected employees, and may be rescinded at any time by a two-thirds
vote of the affected employees. A new vote on whether the agreement
described in subdivision (a) shall be continued shall be held every
three years, and an affirmative vote by at least two-thirds of the
affected employees shall be necessary to continue the agreement.
(d) The employer shall not be required to pay premium wage rates
to employees working a schedule described in subdivision (a) unless
the employee is required or permitted to work more than 12 hours in
any workday, more than the scheduled three or four days in any
workweek, or more than 40 hours in any workweek.
(e) This section shall not apply to any employer who is now, or in
the future becomes, a party to a collective-bargaining agreement
covering employees who would otherwise be covered by this section.
(f) No employee working a schedule described in subdivision (a)
shall be required to work more than four consecutive days within
seven consecutive days.
SEC. 483. Section 1289 of the Labor Code is amended to read:
1289. (a) If a person desires to contest a citation or the
proposed assessment of a civil penalty therefor, he or she shall
within 15 business days after service of the citation notify the
office of the Labor Commissioner which that
appears on the citation of his or her request for an informal
hearing. The Labor Commissioner or the commissioner's deputy or agent
shall, within 30 days, hold a hearing at the conclusion of which the
citation or proposed assessment of a civil penalty shall be
affirmed, modified, or dismissed. The decision of the Labor
Commissioner shall consist of a notice of findings, findings, and
order which that shall be served on all
parties to the hearing within 15 days after the hearing by regular
first-class mail at the last known address of the party on file with
the Labor Commissioner. Service shall be completed pursuant to
Section 1013 of the Code of Civil Procedure. Any amount found due by
the Labor Commissioner as a result of a hearing shall become due and
payable 45 days after notice of the findings and written findings and
order have been mailed to the party assessed. A writ of mandate may
be taken from that finding to the appropriate superior court, as long
as the party agrees to pay any judgment and costs ultimately
rendered by the court against the party for the assessment. The writ
shall be taken within 45 days of service of the notice of findings,
findings, and order thereon.
(b) A person to whom a citation has been issued, shall, in lieu of
contesting a citation pursuant to this section, transmit to the
office of the Labor Commissioner designated on the citation the
amount specified for the violation within 15 business days after
issuance of the citation.
(c) When no petition objecting to a citation or the proposed
assessment of a civil penalty is filed, a certified copy of the
citiation citation or proposed civil
penalty may be filed by the Labor Commissioner in the office of the
clerk of the superior court in any county in which the person
assessed has property or in which the person assessed has or had a
place of business. The clerk, immediately upon the filing, shall
enter judgment for the state against the person assessed in the
amount shown on the citation or proposed assessment of a civil
penalty.
(d) When findings and the order thereon are made affirming or
modifying a citation or proposed assessment of a civil penalty after
hearing, a certified copy of the findings and the order entered
thereon may be entered by the Labor Commissioner in the office of the
clerk of the superior court in any county in which the person
assessed has property or in which the person assessed has or had a
place of business. The clerk, immediately upon the filing, shall
enter judgment for the state against the person assessed in the
amount shown on the certified order.
(e) A judgment entered pursuant to this section shall bear the
same rate of interest and shall have the same effect as other
judgments and be given the same preference allowed by law on other
judgments rendered for claims for taxes. The clerk shall make no
charge for the service provided by this section to be performed by
him or her.
SEC. 484. Section 1301 of the Labor Code is amended to read:
1301. (a) The provisions of this article
concerning the employment of minors, and the civil penalties for
violations of such those provisions,
shall be fully applicable to every person who owns or controls the
real property upon which a minor is employed, whether or not
such that person is the minor's employer, if
the minor's employment is for the benefit of such
the person, and such the
person has knowingly permitted the violation or continuation of
such violations.
(b) The posting of a notice pursuant to
Section 12781 49140 of the Education
Code shall not operate to exempt any person from the
provisions of this article.
SEC. 485. Section 1302 of the Labor Code is amended to read:
1302. The attendance supervisor, who is a full-time attendance
supervisor performing no other duties, of any county, city and
county, or school district in which any place of employment is
situated, or the probation officer of such
the county, may at any time, enter such
the place of employment for the purpose of examining permits
to work or to employ of all minors employed in such
the place of employment, or for the purpose of
investigating violations of the provisions of this
article or of Chapter 6 2 (commencing
with Section 12101) 48200) , 7
3 (commencing with Section 12551)
48400) , or 7.5 7
(commencing with Section 12765) 49100)
of Division 9 Part 27 of the Education
Code. If an attendance supervisor or probation officer is denied
entrance to such the place of
employment, or if any violations of laws relating to the employment
of minors are found to exist, the attendance supervisor or probation
officer shall report the denial of entrance or the violation to the
Labor Commissioner. Such The report
shall be made within 48 hours and shall be in writing, setting forth
the fact that he or she
has good cause to believe that such
these laws are being violated in such
the place of employment, and describing the nature of the
violation.
SEC. 486. Section 2686 of the Labor Code is amended to read:
2686. Upon the written request of any manufacturer or contractor,
the Conciliation Service of the Department of Industrial Relations
shall notify the other party to the dispute of the request for
arbitration and shall, within seven days of receipt of such
the request, appoint an arbitration panel to
hear and render a decision regarding the dispute. The panel shall be
constituted as follows:
(a) A management level representative from a manufacturer in the
general geographic area in which the dispute arises, provided that
insofar as posssible such possible the
manufacturer shall not be a direct competitor of the manufacturer
involved in the dispute to be arbitrated. This panel member also
shall be selected in accordance with the terms of the written
contract.
(b) A representative from the contractors' association whose
membership encompasses the general geographic area in which the
dispute arises. This panel member also shall be selected in
accordance with the terms of the written contract.
(c) A third party to be chosen and agreed upon by the first two
parties to the dispute from a list of arbitrators provided
by the American Arbitration Association. This party shall act as
chairperson of the panel.
SEC. 487. Section 2855 of the Labor Code is amended to read:
2855. (a) Except as otherwise provided in subdivision (b), a
contract to render personal service, other than a contract of
apprenticeship as provided in Chapter 4 (commencing with Section
3070), may not be enforced against the employee beyond seven years
from the commencement of service under it. Any contract, otherwise
valid, to perform or render service of a special, unique, unusual,
extraordinary, or intellectual character, which gives it peculiar
value and the loss of which can not can
not be reasonably or adequately compensated in damages in
an action at law, may nevertheless be enforced against the person
contracting to render the service, for a term not to exceed seven
years from the commencement of service under it. If the employee
voluntarily continues to serve under it beyond that time, the
contract may be referred to as affording a presumptive measure of the
compensation.
(b) Notwithstanding subdivision (a):
(1) Any employee who is a party to a contract to render personal
service in the production of phonorecords in which sounds are first
fixed, as defined in Section 101 of Title 17 of the United States
Code, may not invoke the provisions of subdivision (a) without first
giving written notice to the employer in accordance with Section 1020
of the Code of Civil Procedure, specifying that the employee from
and after a future date certain specified in the notice will no
longer render service under the contract by reason of subdivision
(a).
(2) Any party to such a contract described
in paragraph (1) shall have the right to recover damages for a
breach of the contract occurring during its term in an action
commmenced com menced during
or after its term, but within the applicable period prescribed by
law.
(3) In the event If a party to
such a contract described in paragraph (1)
is, or could contractually be, required to render personal
service in the production of a specified quantity of the phonorecords
and fails to render all of the required service prior to the date
specified in the notice provided in paragraph (1), the party damaged
by the failure shall have the right to recover damages for each
phonorecord as to which that party has failed to render service in an
action which that , notwithstanding
paragraph (2), shall be commenced within 45 days after the date
specified in the notice.
SEC. 488. Section 3364 of the Labor Code is amended to read:
3364. Notwithstanding subdivision (d) (c)
of Section 3352, a volunteer, unsalaried member of a sheriff's
reserve in any county who is not deemed an employee of the county
under Section 3362.5, shall, upon the adoption of a resolution of the
board of supervisors declaring that such a
the member is deemed an employee of the county for the purposes
of this division, shall be entitled to the
workers' compensation benefits provided by this division for any
injury sustained by him or her while engaged in the performance of
any active law enforcement service under the direction and control of
the sheriff.
SEC. 489. Section 4753.5 of the Labor Code is amended to read:
4753.5. In any hearing, investigation, or proceeding, the state
shall be represented by the Attorney General, or the attorneys of the
Department of Industrial Relations, as appointed by the director.
Expenses incident to representation, including costs for
investigation, medical examinations, and other
expert reports, fees for witnesses, and other necessary and proper
expenses, but excluding the salary of any of the Attorney General's
deputies, shall be reimbursed from the Workers' Compensation
Administration Revolving Fund. No witness fees or fees for medical
services shall exceed those fees prescribed by the appeals board for
the same services in those cases where the appeals board, by rule,
has prescribed fees. Reimbursement pursuant to this section shall be
in addition to, and in augmentation of, any other appropriations made
or funds available for the use or support of the the
legal representation.
SEC. 490. Section 5277 of the Labor Code is amended to read:
5277. (a) The arbitrator's findings and award shall be served on
all parties within 30 days of submission of the case for decision.
(b) The arbitrator's award shall comply with Section 5313 and
shall be filed with the appeals board office pursuant to venue rules
published by the appeals board.
(c) The findings of fact, award, order, or decison
decision of the arbitrator shall have the same
force and effect as an award, order, or decision of a workers'
compensation judge.
(d) Use of an arbitrator for any part of a proceeding or any issue
shall not bind the parties to the use of the same arbitrator for any
subsequent issues or proceedings.
(e) Unless all parties agree to a longer period of time, the
failure of the arbitrator to submit the decision within 30 days shall
result in forfeiture of the arbitrator's fee and shall vacate the
submission order and all stipulations.
(f) The presiding workers' compensation judge may submit
supplemental proceedings to arbitration pursuant to this part.
SEC. 491. Section 5307.1 of the Labor Code is amended to read:
5307.1. (a) The administrative director, after public hearings,
shall adopt and revise periodically an official medical fee schedule
that shall establish reasonable maximum fees paid for medical
services other than physician services, drugs and pharmacy services,
health care facility fees, home health care, and all other treatment,
care, services, and goods described in Section 4600 and provided
pursuant to this section. Except for physician services, all fees
shall be in accordance with the fee-related structure and rules of
the relevant Medicare and Medi-Cal payment systems, provided that
employer liability for medical treatment, including issues of
reasonableness, necessity, frequency, and duration, shall be
determined in accordance with Section 4600. Commencing January 1,
2004, and continuing until the time the administrative director has
adopted an official medical fee schedule in accordance with the
fee-related structure and rules of the relevant Medicare payment
systems, except for the components listed in subdivisions
(k) and ( l ) subdivision (j)
, maximum reasonable fees shall be 120 percent of the estimated
aggregate fees prescribed in the relevant Medicare payment system for
the same class of services before application of the inflation
factors provided in subdivision (e) (g)
, except that for pharmacy services and drugs that are not otherwise
covered by a Medicare fee schedule payment for facility services,
the maximum reasonable fees shall be 100 percent of fees prescribed
in the relevant Medi-Cal payment system. Upon adoption by the
administrative director of an official medical fee schedule pursuant
to this section, the maximum reasonable fees paid shall not exceed
120 percent of estimated aggregate fees prescribed in the Medicare
payment system for the same class of services before application of
the inflation factors provided in subdivision (e)
(g) . Pharmacy services and drugs shall be subject to the
requirements of this section, whether furnished through a pharmacy or
dispensed directly by the practitioner pursuant to subdivision (b)
of Section 4024 of the Business and Professions Code.
(b) In order to comply with the standards specified in subdivision
(f), the administrative director may adopt different conversion
factors, diagnostic related group weights, and other factors
affecting payment amounts from those used in the Medicare payment
system, provided estimated aggregate fees do not exceed 120 percent
of the estimated aggregate fees paid for the same class of services
in the relevant Medicare payment system.
(c) Notwithstanding subdivisions (a) and (d), the maximum facility
fee for services performed in an ambulatory surgical center, or in a
hospital outpatient department, may not exceed 120 percent of the
fee paid by Medicare for the same services performed in a hospital
outpatient department.
(d) If the administrative director determines that a medical
treatment, facility use, product, or service is not covered by a
Medicare payment system, the administrative director shall establish
maximum fees for that item, provided that the maximum fee paid shall
not exceed 120 percent of the fees paid by Medicare for services that
require comparable resources. If the administrative director
determines that a pharmacy service or drug is not covered by a
Medi-Cal payment system, the administrative director shall establish
maximum fees for that item , provided, however, that
. However, the maximum fee paid shall not exceed
100 percent of the fees paid by Medi-Cal for pharmacy services or
drugs that require comparable resources.
(e) Prior to the adoption by the administrative director of a
medical fee schedule pursuant to this section, for any treatment,
facility use, product, or service not covered by a Medicare payment
system, including acupuncture services, or, with regard to pharmacy
services and drugs, for a pharmacy service or drug that is not
covered by a Medi-Cal payment system, the maximum reasonable fee paid
shall not exceed the fee specified in the official medical fee
schedule in effect on December 31, 2003.
(f) Within the limits provided by this section, the rates or fees
established shall be adequate to ensure a reasonable standard of
services and care for injured employees.
(g) (1) (A) Notwithstanding any other provision of law, the
official medical fee schedule shall be adjusted to conform to any
relevant changes in the Medicare and Medi-Cal payment systems no
later than 60 days after the effective date of those changes,
provided that both of the following conditions are met:
(i) The annual inflation adjustment for facility fees for
inpatient hospital services provided by acute care hospitals and for
hospital outpatient services shall be determined solely by the
estimated increase in the hospital market basket for the 12 months
beginning October 1 of the preceding calendar year.
(ii) The annual update in the operating standardized amount and
capital standard rate for inpatient hospital services provided by
hospitals excluded from the Medicare prospective payment system for
acute care hospitals and the conversion factor for hospital
outpatient services shall be determined solely by the estimated
increase in the hospital market basket for excluded hospitals for the
12 months beginning October 1 of the preceding calendar year.
(B) The update factors contained in clauses (i) and (ii) of
subparagraph (A) shall be applied beginning with the first update in
the Medicare fee schedule payment amounts after December 31, 2003.
(2) The administrative director shall determine the effective date
of the changes, and shall issue an order, exempt from Sections
5307.3 and 5307.4 and the rulemaking provisions of the Administrative
Procedure Act (Chapter 3.5 (commencing with Section 11370)
11340) of Part 1 of Division 3 of Title 2 of the
Government Code), informing the public of the changes and their
effective date. All orders issued pursuant to this paragraph shall be
published on the Internet Web site of the division
Division of Workers' Compensation.
(3) For the purposes of this subdivision, the following
definitions apply:
(A) "Medicare Economic Index" means the input price index used by
the federal Centers for Medicare and Medicaid Services to measure
changes in the costs of a providing physician and other services paid
under the resource-based relative value scale.
(B) "Hospital market basket" means the input price index used by
the federal Centers for Medicare and Medicaid Services to measure
changes in the costs of providing inpatient hospital services
provided by acute care hospitals that are included in the Medicare
prospective payment system.
(C) "Hospital market basket for excluded hospitals" means the
input price index used by the federal Centers for Medicare and
Medicaid Services to measure changes in the costs of providing
inpatient services by hospitals that are excluded from the Medicare
prospective payment system.
(h) Nothing in this section shall prohibit an employer or insurer
from contracting with a medical provider for reimbursement rates
different from those prescribed in the official medical fee schedule.
(i) Except as provided in Section 4626, the official medical fee
schedule shall not apply to medical-legal expenses, as that term is
defined by Section 4620.
(j) The following Medicare payment system components may not
become part of the official medical fee schedule until January 1,
2005:
(1) Inpatient skilled nursing facility care.
(2) Home health agency services.
(3) Inpatient services furnished by hospitals that are exempt from
the prospective payment system for general acute care hospitals.
(4) Outpatient renal dialysis services.
(k) Notwithstanding subdivision (a), for the calendar years 2004
and 2005, the existing official medical fee schedule rates for
physician services shall remain in effect, but these rates shall be
reduced by 5 percent. The administrative director may reduce fees of
individual procedures by different amounts, but in no event shall the
administrative director reduce the fee for a procedure that is
currently reimbursed at a rate at or below the Medicare rate for the
same procedure.
(l) Notwithstanding subdivision (a), the administrative director,
commencing January 1, 2006, shall have the authority, after public
hearings, to adopt and revise, no less frequently than biennially, an
official medical fee schedule for physician services. If the
administrative director fails to adopt an official medical fee
schedule for physician services by January 1, 2006, the existing
official medical fee schedule rates for physician services shall
remain in effect until a new schedule is adopted or the existing
schedule is revised.
SEC. 492. Section 5907 of the Labor Code is amended to read:
5907. If , at the time of granting reconsideration, it
appears to the satisfaction of the appeals board that no
sufficent sufficient reason exists for taking
further testimony, the appeals board may affirm, rescind, alter
, or amend the order, decision, or award made and filed by the
appeals board or the workers' compensation judge and may, without
further proceedings, without notice, and without setting a time and
place for further hearing, enter its findings, order, decision, or
award based upon the record in the case.
SEC. 493. Section 6315.3 of the Labor Code is amended to read:
6315.3. The bureau shall, not later than February 15, annually
submit to the division for submission to the director a report on the
activities of the bureau, including, but not limited to, the
following:
(a) Totals of each type of report provided the bureau under each
category in subdivision (b) of Section 6315.
(b) Totals of each type of case reflecting the number of
investigations and court cases in progress at the start of the
calendar year being reported, investigations completed in the
calendar year, cases referred to appropriate prosecuting authorities
in the calendar year, and investigations and court cases in progress
at the end of the calendar year. The types of cases shall include the
following:
(1) Those in which that the bureau
is required to investigate, divided into fatalities, serious injuries
to five or more employees, and requests for prosecution from a
division representative.
(2) Those which that were initiated
by the bureau following the review required in subdivision (a) of
Section 6315, divided into serious injuries to fewer than five
employees and serious exposures.
(c) A summary of the dispositions in the calendar year of cases
referred by the bureau to apropriate
appropriate prosecuting authorities. The summary shall be
divided into the types of cases, as described in subdivision (b), and
shall show at least the violation, the statute for which the case
was referred for prosecution, and the dates of referral to the bureau
for investigation, referral from the bureau for prosecution, and the
final court action if the case was prosecuted.
(d) A summary of investigations completed in the calendar year
which that did not result in a referral
for prosecution, divided into the types of cases as described in
subdivision (b), showing the violation , and the
reasons for nonreferral.
(e) A summary of the use of the bureau's resources in
accomplishing the bureau's mission.
SEC. 494. Section 7384 of the Labor Code is amended to read:
7384. The division shall prepare an annual report concerning
revenues obtained from all funding sources and expenditures. The
division shall file the report with the Legislative Analyst, the
Joint Legislative Audit Commitee Committee
, the Department of Finance, and the appropriate policy
committees of the Legislature.
SEC. 495. Section 7994 of the Labor Code is amended to read:
7994. Any person holding an "explosive blaster's license" who is
convicted of violating safety orders involving use or handling of
explosives in which the violation is judged to be responsible for an
accident involving serious injury or death shall have his or her
license revoked for a at least
one year, in addition to any other penalties he or she may
be assessed. Any person who has had his or her "explosive
blaster's license" revoked may apply for a new license after the
minimum period of revocation expires. He or she shall be
required to pass all examinations before a new license is granted.
SEC. 496. Section 340 of the Military and Veterans Code is amended
to read:
340. (a) Subject to Section 340.1, whenever any officer, warrant
officer, or enlisted member of the California National Guard, the
organized militia, or the unorganized militia, when called into the
active service of the state, pursuant to Sections
Section 142, 143, or 146, is wounded, injured, disabled,
or killed in the active service of the state in the line of duty, the
member or the member's dependents shall receive compensation under
Division 4 (commencing with Section 3201) of the Labor Code. For
these purposes, the member is deemed to be an employee of the state.
The compensation shall be based on the member's average income from
all sources during the year immediately preceding the date of
wounding, injury, or death , or the
commencement of disability and shall not exceed the maximum
prescribed in Division 4 (commencing with Section 3201) of
the Labor Code.
(b) For the purposes of this article, any officer, warrant
officer, or enlisted member performing military duty of any nature
pursuant to Title 32 or Title 10 of the United States Code shall not
be entitled to benefits described in subdivision (a) or in Section
3401.1. 340.1.
(c) Notwithstanding subdivision (a), any officer, warrant officer,
or enlisted member on full-time active duty with the Office of the
Adjutant General who suffers disability or death in the line of duty
from either injury or disease is entitled to receive, from the state,
benefits or compensation for that disability or death comparable to
that provided to members of the United States armed forces on active
duty.
SEC. 497. Section 171d of the Penal Code is amended to read:
171d. Any person, except a duly appointed peace officer as
defined in Chapter 4.5 (commencing with Section 830) of Title 3 of
Part 2, a full-time paid peace officer of another state or
the federal government who is carrying out official duties while in
California, or any person summoned by any
such that officer to assist in making arrests
or preserving the peace while he or she is actually
engaged in assisting such the officer,
or a member of the military forces of this state
or of the United States engaged in the performance of his or her
duties, a person holding a valid license to carry the firearm
pursuant to Article 3 (commencing with Section 12050) of Chapter 1 of
Title 2 of Part 4 of the Penal Code , or
the Governor or a member of his or her
immediate family or a person acting with his or her
permission with respect to the Governor's Mansion or any other
residence of the Governor, any other constitutional officer or a
member of his or her immediate family or a person acting
with his or her permission with respect to such
the officer's residence, or a Member of the
Legislature or a member of his or her immediate family or
a person acting with his or her permission with respect to
such legislator's the Member's
residence, shall be punished by imprisonment in the
a county jail for not more than one year,
or by fine of not more than one thousand dollars
($1000) ($1,000) , or by both
such the fine and imprisonment, or by
imprisonment in the state prison, if he or she does any of
the following:
1.
(a) Brings a loaded firearm into, or
possesses a loaded firearm within, the Governor's Mansion, or any
other residence of the Governor, the residence of any other
constitutional officer, or the residence of any Member of the
Legislature.
2.
(b) Brings a loaded firearm upon, or
possesses a loaded firearm upon, the grounds of the Governor's
Mansion or any other residence of the Governor, the residence of any
other constitutional officer, or the residence of any Member of the
Legislature.
SEC. 498. Section 186.2 of the Penal Code is amended to read:
186.2. For purposes of this chapter, the following definitions
apply:
(a) "Criminal profiteering activity" means any act committed or
attempted or any threat made for financial gain or advantage, which
act or threat may be charged as a crime under any of the following
sections:
(1) Arson, as defined in Section 451.
(2) Bribery, as defined in Sections 67, 67.5, and 68.
(3) Child pornography or exploitation, as defined in subdivision
(b) of Section 311.2, or Section 311.3 or 311.4, which may be
prosecuted as a felony.
(4) Felonious assault, as defined in Section 245.
(5) Embezzlement, as defined in Sections 424 and 503.
(6) Extortion, as defined in Section 518.
(7) Forgery, as defined in Section 470.
(8) Gambling, as defined in Sections 337a to 337f, inclusive, and
Section 337i, except the activities of a person who participates
solely as an individual bettor.
(9) Kidnapping, as defined in Section 207.
(10) Mayhem, as defined in Section 203.
(11) Murder, as defined in Section 187.
(12) Pimping and pandering, as defined in Section 266.
(13) Receiving stolen property, as defined in Section 496.
(14) Robbery, as defined in Section 211.
(15) Solicitation of crimes, as defined in Section 653f.
(16) Grand theft, as defined in Section 487.
(17) Trafficking in controlled substances, as defined in Sections
11351, 11352, and 11353 of the Health and Safety Code.
(18) Violation of the laws governing corporate securities, as
defined in Section 25541 of the Corporations Code.
(19) Any of the offenses contained in Chapter 7.5 (commencing with
Section 311) of Title 9, relating to obscene matter, or in Chapter
7.6 (commencing with Section 313) of Title 9, relating to harmful
matter that may be prosecuted as a felony.
(20) Presentation of a false or fraudulent claim, as defined in
Section 550.
(21) False or fraudulent activities, schemes, or artifices, as
described in Section 14107 of the Welfare and Institutions Code.
(22) Money laundering, as defined in Section 186.10.
(23) Offenses relating to the counterfeit of a registered mark, as
specified in Section 350.
(24) Offenses relating to the unauthorized access to computers,
computer systems, and computer data, as specified in Section 502.
(25) Conspiracy to commit any of the crimes listed above, as
defined in Section 182.
(26) Subdivision (a) of Section 186.22, or a felony subject to
enhancement as specified in subdivision (b) of Section 186.22.
(27) Any offenses related to fraud or theft against the state's
beverage container recycling program, including, but not limited to,
those offenses specified in this subdivision and those criminal
offenses specified in the California Beverage Container Recycling and
Litter Reduction Act, commencing at Section 14500 of the Public
Resources Code.
(28) Human trafficking, as defined in Section 236.1.
(29) Theft of personal identifying information, as defined in
Section 530.5.
(b) (1) "Pattern of criminal profiteering
activity" means engaging in at least two incidents of criminal
profiteering, as defined by this act chapter
, that meet the following requirements:
(1)
(A) Have the same or a similar purpose, result,
principals, victims, or methods of commission, or are otherwise
interrelated by distinguishing characteristics.
(2)
(B) Are not isolated events.
(3)
(C) Were committed as a criminal activity of organized
crime.
(2) Acts that would constitute a "pattern of
criminal profiteering activity" may not be used by a prosecuting
agency to seek the remedies provided by this chapter unless the
underlying offense occurred after the effective date of this chapter
and the prior act occurred within 10 years, excluding any period of
imprisonment, of the commission of the underlying offense. A prior
act may not be used by a prosecuting agency to seek remedies provided
by this chapter if a prosecution for that act resulted in an
acquittal.
(c) "Prosecuting agency" means the Attorney General or the
district attorney of any county.
(d) "Organized crime" means crime that is of a conspiratorial
nature and that is either of an organized nature and seeks to supply
illegal goods and services such as narcotics, prostitution,
loan-sharking, gambling, and pornography, or that, through planning
and coordination of individual efforts, seeks to conduct the illegal
activities of arson for profit, hijacking, insurance fraud,
smuggling, operating vehicle theft rings, fraud against the beverage
container recycling program, or systematically encumbering the assets
of a business for the purpose of defrauding creditors. "Organized
crime" also means crime committed by a criminal street gang, as
defined in subdivision (f) of Section 186.22. "Organized crime" also
means false or fraudulent activities, schemes, or artifices, as
described in Section 14107 of the Welfare and Institutions Code, and
the theft of person personal
identifying information, as defined in Section 530.5.
(e) "Underlying offense" means an offense enumerated in
subdivision (a) for which the defendant is being prosecuted.
SEC. 499. Section 273.7 of the Penal Code is amended to read:
273.7. (a) Any person who maliciously publishes, disseminates, or
otherwise discloses the location of any trafficking shelter or
domestic violence shelter or any place designated as a trafficking
shelter or domestic violence shelter, without the authorization of
that trafficking shelter or domestic violence shelter, is guilty of a
misdemeanor.
(b) (1) For purposes of this section, "domestic violence shelter"
means a confidential location which that
provides emergency housing on a 24-hour basis for victims of
sexual assault, spousal abuse, or both, and their families.
(2) For purposes of this section, "trafficking shelter" means a
confidential location which that
provides emergency housing on a 24-hour basis for victims of human
trafficking, including any person who is a victim under Section
236.1.
(3) Sexual assault, spousal abuse, or both, includes
include, but is are
not limited to, those crimes described in Sections 240, 242,
243.4, 261, 261.5, 262, 264.1, 266, 266a, 266b, 266c, 266f, 273.5,
273.6, 285, 288, and 289.
(c) Nothing in this section shall apply to confidential
communications between an attorney and his or her client.
SEC. 500. Section 290 of the Penal Code is amended to read:
290. (a) (1) (A) Every person described in paragraph (2), for the
rest of his or her life while residing in California, or while
attending school or working in California, as described in
subparagraph (G), shall be required to register with the chief of
police of the city in which he or she is residing, or the sheriff of
the county if he or she is residing in an unincorporated area or city
that has no police department, and, additionally, with the chief of
police of a campus of the University of California, the California
State University, or community college if he or she is residing upon
the campus or in any of its facilities, within five working days of
coming into, or changing his or her residence within, any city,
county, or city and county, or campus in which he or she temporarily
resides.
(B) If the person who is registering has more than one residence
address at which he or she regularly resides, he or she shall
register in accordance with subparagraph (A) in each of the
jurisdictions in which he or she regularly resides, regardless of the
number of days or nights spent there. If all of the addresses are
within the same jurisdiction, the person shall provide the
registering authority with all of the addresses where he or she
regularly resides.
(C) Every person described in paragraph (2), for the rest of his
or her life while living as a transient in California ,
shall be required to register, as follows:
(i) A transient must register, or reregister if the person has
previously registered, within five working days from release from
incarceration, placement , or commitment, or release on
probation, pursuant to paragraph (1) of subdivision (a), except that
if the person previously registered as a transient less than 30 days
from the date of his or her release from incarceration, he or she
does not need to reregister as a transient until his or her next
required 30-day update of registration. If a transient is not
physically present in any one jurisdiction for five consecutive
working days, he or she must register in the jurisdiction in which he
or she is physically present on the fifth working day following
release, pursuant to paragraph (1) of subdivision (a). Beginning on
or before the 30th day following initial registration upon release, a
transient must reregister no less than once every 30 days
thereafter. A transient shall register with the chief of police of
the city in which he or she is physically present within that 30-day
period, or the sheriff of the county if he or she is physically
present in an unincorporated area or city that has no police
department, and additionally, with the chief of police of a campus of
the University of California, the California State University, or
community college if he or she is physically present upon the campus
or in any of its facilities. A transient must reregister no less
than once every 30 days regardless of the length of time he or she
has been physically present in the particular jurisdiction in which
he or she reregisters. If a transient fails to reregister within any
30-day period, he or she may be prosecuted in any jurisdiction in
which he or she is physically present.
(ii) A transient who moves to a residence shall have five working
days within which to register at that address, in accordance with
subparagraph (A) of paragraph (1) of subdivision (a). A person
registered at a residence address in accordance with subparagraph (A)
of paragraph (1) of subdivision (a), who becomes transient shall
have five working days within which to reregister as a transient in
accordance with clause (i).
(iii) Beginning on his or her first birthday following
registration, a transient shall register annually, within five
working days of his or her birthday, to update his or her
registration with the entities described in clause (i). A transient
shall register in whichever jurisdiction he or she is physically
present on that date. At the 30-day updates and the annual update, a
transient shall provide current information as required on the
Department of Justice annual update form, including the information
described in subparagraphs (A) to (C), inclusive, of paragraph (2) of
subdivision (e), and the information specified in clause (iv).
(iv) A transient shall, upon registration and reregistration,
provide current information as required on the Department of Justice
registration forms, and shall also list the places where he or she
sleeps, eats, works, frequents, and engages in leisure activities. If
a transient changes or adds to the places listed on the form during
the 30-day period, he or she does not need to report the new place or
places until the next required reregistration.
(v) Failure to comply with the requirement of reregistering every
30 days following initial registration pursuant to clause (i) of this
subparagraph shall be punished in accordance with paragraph (6) of
subdivision (g). Failure to comply with any other requirement of this
section shall be punished in accordance with either paragraph (1) or
(2) of subdivision (g).
(vi) A transient who moves out of state shall inform, in person,
the chief of police in the city in which he or she is physically
present, or the sheriff of the county if he or she is physically
present in an unincorporated area or city that has no police
department, within five working days, of his or her move out of
state. The transient shall inform that registering agency of his or
her planned destination, residence , or transient location
out of state, and any plans he or she has to return to California,
if known. The law enforcement agency shall, within three days after
receipt of this information, forward a copy of the change of location
information to the Department of Justice. The department shall
forward appropriate registration data to the law enforcement agency
having local jurisdiction of the new place of residence or location.
(vii) For purposes of this section, "transient" means a person who
has no residence. "Residence" means one or more addresses at which a
person regularly resides, regardless of the number of days or nights
spent there, such as a shelter or structure that can be located by a
street address, including, but not limited to, houses, apartment
buildings, motels, hotels, homeless shelters, and recreational and
other vehicles.
(viii) The transient registrant's duty to update his or her
registration no less than every 30 days shall begin with his or her
second transient update following the date this subdivision became
effective.
(D) Beginning on his or her first birthday following registration
or change of address, the person shall be required to register
annually, within five working days of his or her birthday, to update
his or her registration with the entities described in subparagraph
(A). At the annual update, the person shall provide current
information as required on the Department of Justice annual update
form, including the information described in subparagraphs (A) to
(C), inclusive, of paragraph (2) of subdivision (e).
(E) In addition, every person who has ever been adjudicated a
sexually violent predator, as defined in Section 6600 of the Welfare
and Institutions Code, shall, after his or her release from custody,
verify his or her address no less than once every 90 days and place
of employment, including the name and address of the employer, in a
manner established by the Department of Justice.
(F) No entity shall require a person to pay a fee to register or
update his or her registration pursuant to this section. The
registering agency shall submit registrations, including annual
updates or changes of address, directly into the Department of
Justice Violent Crime Information Network (VCIN).
(G) Persons required to register in their state of residence who
are out-of-state residents employed, or carrying on a vocation in
California on a full-time or part-time basis, with or without
compensation, for more than 14 days, or for an aggregate period
exceeding 30 days in a calendar year, shall register in accordance
with subparagraph (A). Persons described in paragraph (2) who are
out-of-state residents enrolled in any educational institution in
California, as defined in Section 22129 of the Education Code, on a
full-time or part-time basis, shall register in accordance with
subparagraph (A). The place where the out-of-state resident is
located, for purposes of registration, shall be the place where the
person is employed, carrying on a vocation, or attending school. The
out-of-state resident subject to this subparagraph shall, in addition
to the information required pursuant to subdivision (e), provide the
registering authority with the name of his or her place of
employment or the name of the school attended in California, and his
or her address or location in his or her state of residence. The
registration requirement for persons subject to this subparagraph
shall become operative on November 25, 2000. The terms
"employed or carries on a vocation" include "Employed"
or "carrying on a vocation" includes employment whether or not
financially compensated, volunteered, or performed for government or
educational benefit.
(2) The following persons shall be required to register pursuant
to paragraph (1):
(A) Any person who, since July 1, 1944, has been or is hereafter
convicted in any court in this state or in any federal or military
court of a violation of Section 207 or 209 committed with intent to
violate Section 261, 286, 288, 288a, or 289, Section 220, except
assault to commit mayhem, Section 243.4, paragraph (1), (2), (3),
(4), or (6) of subdivision (a) of Section 261, or paragraph (1) of
subdivision (a) of Section 262 involving the use of force or violence
for which the person is sentenced to the state prison, Section
264.1, 266, or 266c, subdivision (b) of Section 266h, subdivision (b)
of Section 266i, Section 266j, 267, 269, 285, 286, 288, 288a, 288.5,
or 289, Section 311.1, subdivision (b), (c), or (d) of Section
311.2, Section 311.3, 311.4, 311.10, 311.11, or 647.6, former Section
647a, subdivision (c) of Section 653f, subdivision 1 or 2 of Section
314, any offense involving lewd or lascivious conduct under Section
272, or any felony violation of Section 288.2; or any statutory
predecessor that includes all elements of one of the above-mentioned
offenses; or any person who since that date has been or is hereafter
convicted of the attempt to commit any of the above-mentioned
offenses.
(B) Any person who, since July 1, 1944, has been or hereafter is
released, discharged, or paroled from a penal institution where he or
she was confined because of the commission or attempted commission
of one of the offenses described in subparagraph (A).
(C) Any person who, since July 1, 1944, has been or hereafter is
determined to be a mentally disordered sex offender under Article 1
(commencing with Section 6300) of Chapter 2 of Part 2 of Division 6
of the Welfare and Institutions Code or any person who has been found
guilty in the guilt phase of a trial for an offense for which
registration is required by this section but who has been found not
guilty by reason of insanity in the sanity phase of the trial.
(D) (i) Any person who, since July 1, 1944, has been, or is
hereafter convicted in any other court, including any state, federal,
or military court, of any offense that, if committed or attempted in
this state, would have been punishable as one or more of the
offenses described in subparagraph (A).
(ii) Any person ordered by any other court, including any state,
federal, or military court, to register as a sex offender for any
offense, if the court found at the time of conviction or sentencing
that the person committed the offense as a result of sexual
compulsion or for purposes of sexual gratification.
(iii) Except as provided in clause (iv), any person who would be
required to register while residing in the state of conviction for a
sex offense committed in that state.
(iv) Clause (iii) shall not apply to a person required to register
in the state of conviction if the conviction was for the equivalent
of one of the following offenses, and the person is not subject to
clause (i):
(I) Indecent exposure, pursuant to Section 314.
(II) Unlawful sexual intercourse, pursuant to Section 261.5.
(III) Incest, pursuant to Section 285.
(IV) Sodomy, pursuant to Section 286, or oral copulation, pursuant
to Section 288a, provided that the offender notifies the Department
of Justice that the sodomy or oral copulation conviction was for
conduct between consenting adults, as described in subparagraph (F)
of paragraph (2) of subdivision (a), and the department is able, upon
the exercise of reasonable diligence, to verify that fact.
(E) Any person ordered by any court to register pursuant to this
section for any offense not included specifically in this section if
the court finds at the time of conviction or sentencing that the
person committed the offense as a result of sexual compulsion or for
purposes of sexual gratification. The court shall state on the record
the reasons for its findings and the reasons for requiring
registration.
(F) Any person required to register pursuant to any provision of
this section, regardless of whether the person's conviction has been
dismissed pursuant to Section 1203.4, unless the person obtains a
certificate of rehabilitation and is entitled to relief from
registration pursuant to Section 290.5.
(G) (i) Notwithstanding any other subdivision, a person who was
convicted before January 1, 1976, under subdivision (a) of Section
286, or Section 288a, shall not be required to register pursuant to
this section for that conviction if the conviction was for conduct
between consenting adults that was decriminalized by Chapter 71 of
the Statutes of 1975 or Chapter 1139 of the Statutes of 1976. The
Department of Justice shall remove that person from the Sex Offender
Registry, and the person is discharged from his or her duty to
register pursuant to the following procedure:
(I) The person submits to the Department of Justice official
documentary evidence, including court records or police reports, that
demonstrate that the person's conviction pursuant to either of those
sections was for conduct between consenting adults that was
decriminalized ; or .
(II) The person submits to the department a declaration stating
that the person's conviction pursuant to either of those sections was
for consensual conduct between adults that has been decriminalized.
The declaration shall be confidential and not a public record, and
shall include the person's name, address, telephone number, date of
birth, and a summary of the circumstances leading to the conviction,
including the date of the conviction and county of the occurrence.
(III) The department shall determine whether the person's
conviction was for conduct between consensual adults that has been
decriminalized. If the conviction was for consensual conduct between
adults that has been decriminalized, and the person has no other
offenses for which he or she is required to register pursuant to this
section, the department shall, within 60 days of receipt of those
documents, notify the person that he or she is relieved of the duty
to register, and shall notify the local law enforcement agency with
which the person is registered that he or she has been relieved of
the duty to register. The local law enforcement agency shall remove
the person's registration from its files within 30 days of receipt of
notification. If the documentary or other evidence submitted is
insufficient to establish the person's claim, the department shall,
within 60 days of receipt of those documents, notify the person that
his or her claim cannot be established, and that the person shall
continue to register pursuant to this section. The department shall
provide, upon the person's request, any information relied upon by
the department in making its determination that the person shall
continue to register pursuant to this section. Any person whose claim
has been denied by the department pursuant to this clause may
petition the court to appeal the department's denial of the person's
claim.
(ii) On or before July 1, 1998, the department shall make a report
to the Legislature concerning the status of persons who may come
under the provisions of this subparagraph, including the number of
persons who were convicted before January 1, 1976, under subdivision
(a) of Section 286 or Section 288a and are required to register under
this section, the average age of these persons, the number of these
persons who have any subsequent convictions for a registerable sex
offense, and the number of these persons who have sought successfully
or unsuccessfully to be relieved of their duty to register under
this section.
(b) (1) Any person who is released, discharged, or paroled from a
jail, state or federal prison, school, road camp, or other
institution where he or she was confined because of the commission or
attempted commission of one of the offenses specified in subdivision
(a) or is released from a state hospital to which he or she was
committed as a mentally disordered sex offender under Article 1
(commencing with Section 6300) of Chapter 2 of Part 2 of Division 6
of the Welfare and Institutions Code, shall, prior to discharge,
parole, or release, be informed of his or her duty to register under
this section by the official in charge of the place of confinement or
hospital, and the official shall require the person to read and sign
any form that may be required by the Department of Justice, stating
that the duty of the person to register under this section has been
explained to the person. The official in charge of the place of
confinement or hospital shall obtain the address where the person
expects to reside upon his or her discharge, parole, or release and
shall report the address to the Department of Justice. The official
shall at the same time forward a current photograph of the person to
the Department of Justice.
(2) The official in charge of the place of confinement or hospital
shall give one copy of the form to the person and shall send one
copy to the Department of Justice and one copy to the appropriate law
enforcement agency or agencies having jurisdiction over the place
the person expects to reside upon discharge, parole, or release. If
the conviction that makes the person subject to this section is a
felony conviction, the official in charge shall, not later than 45
days prior to the scheduled release of the person, send one copy to
the appropriate law enforcement agency or agencies having local
jurisdiction where the person expects to reside upon discharge,
parole, or release; one copy to the prosecuting agency that
prosecuted the person; and one copy to the Department of Justice. The
official in charge of the place of confinement or hospital shall
retain one copy.
(c) (1) Any person who is convicted in this state of the
commission or attempted commission of any of the offenses specified
in subdivision (a) and who is released on probation, shall, prior to
release or discharge, be informed of the duty to register under this
section by the probation department, and a probation officer shall
require the person to read and sign any form that may be required by
the Department of Justice, stating that the duty of the person to
register under this section has been explained to him or her. The
probation officer shall obtain the address where the person expects
to reside upon release or discharge and shall report within three
days the address to the Department of Justice. The probation officer
shall give one copy of the form to the person, send one copy to the
Department of Justice, and forward one copy to the appropriate law
enforcement agency or agencies having local jurisdiction where the
person expects to reside upon his or her discharge, parole, or
release.
(2) Any person who is convicted in this state of the commission or
attempted commission of any of the offenses specified in subdivision
(a) and who is granted conditional release without supervised
probation, or discharged upon payment of a fine, shall, prior to
release or discharge, be informed of the duty to register under this
section in open court by the court in which the person has been
convicted, and the court shall require the person to read and sign
any form that may be required by the Department of Justice, stating
that the duty of the person to register under this section has been
explained to him or her. If the court finds that it is in the
interest of the efficiency of the court, the court may assign the
bailiff to require the person to read and sign forms under this
section. The court shall obtain the address where the person expects
to reside upon release or discharge and shall report within three
days the address to the Department of Justice. The court shall give
one copy of the form to the person, send one copy to the Department
of Justice, and forward one copy to the appropriate law enforcement
agency or agencies having local jurisdiction where the person expects
to reside upon his or her discharge, parole, or release.
(d) (1) Any person who, on or after January 1, 1986, is discharged
or paroled from the Department of the Youth Authority
Division of Juvenile Facilities to
the custody of which he or she was committed after having been
adjudicated a ward of the juvenile court pursuant to Section 602 of
the Welfare and Institutions Code because of the commission or
attempted commission of any offense described in paragraph (3) shall
be subject to registration under the procedures of this section.
(2) Any person who is discharged or paroled from a facility in
another state that is equivalent to the Department of the
Youth Authority Division of Juvenile Facilities
, to the custody of which he or she was committed because of an
offense which that , if committed or
attempted in this state, would have been punishable as one or more of
the offenses described in paragraph (3), shall be subject to
registration under the procedures of this section.
(3) Any person described in this subdivision who committed an
offense in violation of any of the following provisions shall be
required to register pursuant to this section:
(A) Assault with intent to commit rape, sodomy, oral copulation,
or any violation of Section 264.1, 288, or 289 under Section 220.
(B) Any offense defined in paragraph (1), (2), (3), (4), or (6) of
subdivision (a) of Section 261, Section 264.1, 266c, or 267,
paragraph (1) of subdivision (b) of, or subdivision (c) or (d) of,
Section 286, Section 288 or 288.5, paragraph (1) of subdivision (b)
of, or subdivision (c) or (d) of, Section 288a, subdivision (a) of
Section 289, or Section 647.6.
(C) A violation of Section 207 or 209 committed with the intent to
violate Section 261, 286, 288, 288a, or 289.
(4) Prior to discharge or parole from the Department of
the Youth Authority Division of Juvenile Facilities
, any person who is subject to registration under this
subdivision shall be informed of the duty to register under the
procedures set forth in this section. Department of the
Youth Authority Division of Juvenile Facilities
officials shall transmit the required forms and information to the
Department of Justice.
(5) All records specifically relating to the registration in the
custody of the Department of Justice, law enforcement agencies, and
other agencies or public officials shall
be destroyed when the person who is required to register
has his or her records sealed under the procedures set forth in
Section 781 of the Welfare and Institutions Code. This subdivision
shall not be construed as requiring the destruction of other criminal
offender or juvenile records relating to the case that are
maintained by the Department of Justice, law enforcement agencies,
the juvenile court, or other agencies and public officials unless
ordered by a court under Section 781 of the Welfare and Institutions
Code.
(e) (1) On or after January 1, 1998, upon incarceration,
placement, or commitment, or prior to release on probation, any
person who is required to register under this section shall
preregister. The preregistering official shall be the admitting
officer at the place of incarceration, placement, or commitment, or
the probation officer if the person is to be released on probation.
The preregistration shall consist of all of the following:
(A) A preregistration statement in writing, signed by the person,
giving information that shall be required by the Department of
Justice.
(B) The fingerprints and a current photograph of the person.
(C) Any person who is preregistered pursuant to this subdivision
is required to be preregistered only once.
(2) A person described in paragraph (2) of subdivision (a) shall
register, or reregister if the person has previously registered, upon
release from incarceration, placement, commitment, or release on
probation pursuant to paragraph (1) of subdivision (a). The
registration shall consist of all of the following:
(A) A statement in writing signed by the person, giving
information as shall be required by the Department of Justice and
giving the name and address of the person's employer, and the address
of the person's place of employment if that is different from the
employer's main address.
(B) The fingerprints and a current photograph of the person taken
by the registering official.
(C) The license plate number of any vehicle owned by, regularly
driven by, or registered in the name of the person.
(D) Notice to the person that, in addition to the requirements of
paragraph (4), he or she may have a duty to register in any other
state where he or she may relocate.
(E) Copies of adequate proof of residence, which shall be limited
to a California driver's license, California identification card,
recent rent or utility receipt, printed personalized checks or other
recent banking documents showing that person's name and address, or
any other information that the registering official believes is
reliable. If the person has no residence and no reasonable
expectation of obtaining a residence in the foreseeable future, the
person shall so advise the registering official and shall sign a
statement provided by the registering official stating that fact.
Upon presentation of proof of residence to the registering official
or a signed statement that the person has no residence, the person
shall be allowed to register. If the person claims that he or she has
a residence but does not have any proof of residence, he or she
shall be allowed to register but shall furnish proof of residence
within 30 days of the date he or she is allowed to register.
(3) Within three days thereafter, the preregistering official or
the registering law enforcement agency or agencies shall forward the
statement, fingerprints, photograph, and vehicle license plate
number, if any, to the Department of Justice.
(f) (1) (A) Any person who was last registered at a residence
address pursuant to this section who changes his or her residence
address, whether within the jurisdiction in which he or she is
currently registered or to a new jurisdiction inside or outside the
state, shall, in person, within five working days of the move, inform
the law enforcement agency or agencies with which he or she last
registered of the move, the new address or transient location, if
known, and any plans he or she has to return to California.
(B) If the person does not know the new residence address or
location at the time of the move, the registrant shall, in person,
within five working days of the move, inform the last registering
agency or agencies that he or she is moving. The person shall later
notify the last registering agency or agencies, in writing, sent by
certified or registered mail, of the new address or location within
five working days of moving into the new residence address or
location, whether temporary or permanent.
(C) The law enforcement agency or agencies shall, within three
working days after receipt of this information, forward a copy of the
change of address information to the Department of Justice. The
Department of Justice shall forward appropriate registration data to
the law enforcement agency or agencies having local jurisdiction of
the new place of residence .
(2) If the person's new address is in a Department of the
Youth Authority Division of Juvenile Facilities
facility or a state prison or state mental institution, an official
of the place of incarceration, placement, or commitment shall, within
90 days of receipt of the person, forward the registrant's change of
address information to the Department of Justice. The agency need
not provide a physical address for the registrant but shall indicate
that he or she is serving a period of incarceration or commitment in
a facility under the agency's jurisdiction. This paragraph shall
apply to persons received in a Department of the Youth
Authority Division of Juvenile Facilities
facility or a state prison or state mental institution on or after
January 1, 1999. The Department of Justice shall forward the change
of address information to the agency with which the person last
registered.
(3) If any person who is required to register pursuant to this
section changes his or her name, the person shall inform, in person,
the law enforcement agency or agencies with which he or she is
currently registered within five working days. The law enforcement
agency or agencies shall forward a copy of this information to the
Department of Justice within three working days of its receipt.
(g) (1) Any person who is required to register under this section
based on a misdemeanor conviction or juvenile adjudication who
willfully violates any requirement of this section is guilty of a
misdemeanor punishable by imprisonment in a county jail not exceeding
one year.
(2) Except as provided in paragraphs (5), (7), and (9), any person
who is required to register under this section based on a felony
conviction or juvenile adjudication who willfully violates any
requirement of this section or who has a prior conviction or juvenile
adjudication for the offense of failing to register under this
section and who subsequently and willfully violates any requirement
of this section is guilty of a felony and shall be punished by
imprisonment in the state prison for 16 months, or two or three
years.
If probation is granted or if the imposition or execution of
sentence is suspended, it shall be a condition of the probation or
suspension that the person serve at least 90 days in a county jail.
The penalty described in this paragraph shall apply whether or not
the person has been released on parole or has been discharged from
parole.
(3) Any person determined to be a mentally disordered sex offender
or who has been found guilty in the guilt phase of trial for an
offense for which registration is required under this section, but
who has been found not guilty by reason of insanity in the sanity
phase of the trial, or who has had a petition sustained in a juvenile
adjudication for an offense for which registration is required under
this section pursuant to subdivision (d), but who has been found not
guilty by reason of insanity, who willfully violates any requirement
of this section is guilty of a misdemeanor and shall be punished by
imprisonment in a county jail not exceeding one year. For any second
or subsequent willful violation of any requirement of this section,
the person is guilty of a felony and shall be punished by
imprisonment in the state prison for 16 months, or two or three
years.
(4) If, after discharge from parole, the person is convicted of a
felony or suffers a juvenile adjudication as specified in this
subdivision, he or she shall be required to complete parole of at
least one year, in addition to any other punishment imposed under
this subdivision. A person convicted of a felony as specified in this
subdivision may be granted probation only in the unusual case where
the interests of justice would best be served. When probation is
granted under this paragraph, the court shall specify on the record
and shall enter into the minutes the circumstances indicating that
the interests of justice would best be served by the disposition.
(5) Any person who has ever been adjudicated as a
sexually violent predator, as defined in Section 6600 of the Welfare
and Institutions Code, and who fails to verify his or her
registration every 90 days as required pursuant to subparagraph (E)
of paragraph (1) of subdivision (a), shall be punished by
imprisonment in the state prison, or in a county jail not exceeding
one year.
(6) Except as otherwise provided in paragraph (5), any person who
is required to register or reregister pursuant to clause (i) of
subparagraph (C) of paragraph (1) of subdivision (a) and willfully
fails to comply with the requirement that he or she reregister no
less than every 30 days is guilty of a misdemeanor and shall be
punished by imprisonment in a county jail at least 30 days, but not
exceeding six months. A person who willfully fails to comply with the
requirement that he or she reregister no less than every 30 days
shall not be charged with this violation more often than once for a
failure to register in any period of 90 days. Any person who
willfully commits a third or subsequent violation of the requirements
of subparagraph (C) of paragraph (1) of subdivision (a) that he or
she reregister no less than every 30 days shall be punished in
accordance with either paragraph (1) or (2) of this subdivision.
(7) Any person who fails to provide proof of residence as required
by subparagraph (E) of paragraph (2) of subdivision (e), regardless
of the offense upon which the duty to register is based, is guilty of
a misdemeanor punishable by imprisonment in a county jail not
exceeding six months.
(8) Any person who is required to register under this section who
willfully violates any requirement of this section is guilty of a
continuing offense as to each requirement he or she violated.
(9) In addition to any other penalty imposed under this
subdivision, the failure to provide information required on
registration and reregistration forms of the Department of Justice,
or the provision of false information, is a crime punishable by
imprisonment in a county jail for a period not exceeding one year.
(h) Whenever any person is released on parole or probation and is
required to register under this section but fails to do so within the
time prescribed, the parole authority, the Youthful
Offender Parole Board of Parole Hearings , or
the court, as the case may be, shall order the parole or probation of
the person revoked. For purposes of this subdivision, "parole
authority" has the same meaning as described in Section 3000.
(i) Except as otherwise provided by law, the statements,
photographs, and fingerprints required by this section shall not be
open to inspection by the public or by any person other than a
regularly employed peace officer or other law enforcement officer.
(j) In any case in which a person who would be required to
register pursuant to this section for a felony conviction is to be
temporarily sent outside the institution where he or she is confined
on any assignment within a city or county , including
firefighting, disaster control, or of whatever
nature the assignment may be, the local law
enforcement agency having jurisdiction over the place or places where
the assignment shall occur shall be notified within a reasonable
time prior to removal from the institution. This subdivision shall
not apply to any person who is temporarily released under guard from
the institution where he or she is confined.
(k) As used in this section, "mentally disordered sex offender"
includes any person who has been determined to be a sexual psychopath
or a mentally disordered sex offender under any provision which, on
or before January 1, 1976, was contained in Division 6 (commencing
with Section 6000) of the Welfare and Institutions Code.
(l) (1) Every person who, prior to January 1, 1997, is required to
register under this section, shall be notified whenever he or she
next reregisters of the reduction of the registration period from 14
to 5 working days. This notice shall be provided in writing by the
registering agency or agencies. Failure to receive this notification
shall be a defense against the penalties prescribed by subdivision
(g) if the person did register within 14 days.
(2) Every person who, as a sexually violent predator, as defined
in Section 6600 of the Welfare and Institutions Code, is required to
verify his or her registration every 90 days, shall be notified
wherever he or she next registers of his or her increased
registration obligations. This notice shall be provided in writing by
the registering agency or agencies. Failure to receive this notice
shall be a defense against the penalties prescribed by paragraph (5)
of subdivision (g).
(m) The registration provisions of this section are applicable to
every person described in this section, without regard to when his or
her crime or crimes were committed or his or her duty to register
pursuant to this section arose, and to every offense described in
this section, regardless of when it was committed.
SEC. 501. Section 290.6 of the Penal Code is amended to read:
290.6. (a) Fifteen days before the scheduled release date of a
person described in subdivision (b), the Department of Corrections
and Rehabilitation shall provide to local law enforcement
all of the following information regarding the person:
(1) Name.
(2) Community residence and address, including ZIP Code.
(3) Physical description.
(4) Conviction information.
(b) This subdivision shall apply to any person sentenced to the
state prison who is required to register pursuant to Section 290 for
a conviction of an offense specified in subdivision (b), (c), or (d)
of Section 290.46 and to any person described in those subdivisions.
(c) For the purpose of this section, "law enforcement" includes
any agency with which the person will be required to register upon
his or her release pursuant to Section 290 based upon the person's
community of residence upon release.
(d) If it is not possible for the Department of Corrections
and Rehabilitation to provide the information specified in
subdivision (a) on a date that is 15 days before the scheduled
release date, the information shall be provided on the next business
day following that date.
(e) The Department of Corrections and Rehabilitation
shall notify local law enforcement within 36 hours of learning of the
change if the scheduled release date or any of the required
information changes prior to the scheduled release date.
SEC. 502. Section 652 of the Penal Code is amended to read:
652. (a) It shall be an infraction for any person to perform or
offer to perform body piercing upon a person under the age of 18
years, unless the body piercing is performed in the presence of, or
as directed by a notarized writing by, the person's parent or
guardian.
(b) This section does not apply to the body piercing of an
emancipated minor.
(c) As used in this section, "body piercing" means the creation of
an opening in the body of a human being for the purpose of inserting
jewelry or other decoration, including, but not limited to, the
piercing of a , lip, tongue, nose, or eyebrow.
"Body piercing" does not include the piercing of an ear.
(d) Neither the minor upon whom the body piercing was performed,
nor the parent or guardian of that minor, nor any other minor is
liable for punishment under this section.
SEC. 503. Section 987.9 of the Penal Code is amended to read:
987.9. (a) In the trial of a capital case or a case under
subdivision (a) of Section 190.05 , the indigent
defendant, through the defendant's counsel, may request the court for
funds for the specific payment of investigators, experts, and others
for the preparation or presentation of the defense. The application
for funds shall be by affidavit and shall specify that the funds are
reasonably necessary for the preparation or presentation of the
defense. The fact that an application has been made shall be
confidential and the contents of the application shall be
confidential. Upon receipt of an application, a judge of the court,
other than the trial judge presiding over the case in question, shall
rule on the reasonableness of the request and shall disburse an
appropriate amount of money to the defendant's attorney. The ruling
on the reasonableness of the request shall be made at an in camera
hearing. In making the ruling, the court shall be guided by the need
to provide a complete and full defense for the defendant.
(b) (1) The Controller shall not reimburse
any county for costs that exceed Board of Control
California Victim Compensation and Government Claims Board
standards for travel and per diem expenses. The Controller may
reimburse extraordinary costs in unusual cases if the county provides
sufficient documentation of the need for those expenditures.
(2) At the termination of the proceedings,
the attorney shall furnish to the court a complete accounting of all
moneys received and disbursed pursuant to this section.
(c) The Controller shall adopt regulations pursuant to Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2
of the Government Code, controlling reimbursements under this
section. The regulations shall consider compensation for
investigators, expert witnesses, and other expenses that may or may
not be reimbursable pursuant to this section. Notwithstanding the
provisions of Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code, the Controller shall
follow any regulations adopted until final approval by the Office of
Administrative Law.
(d) The confidentiality provided in this section shall not
preclude any court from providing the Attorney General with access to
documents protected by this section when the defendant raises an
issue on appeal or collateral review where the recorded portion of
the record, created pursuant to this section, relates to the issue
raised. When the defendant raises that issue, the funding records, or
relevant portions thereof, shall be provided to the Attorney General
at the Attorney General's request. In such a
this case, the documents shall remain under seal and their use
shall be limited solely to the pending proceeding.
SEC. 504. Section 1037.1 of the Penal Code is amended to read:
1037.1. (a) Change of venue costs, as defined in Section 1037,
that are court operations, as defined in Section 77003 of the
Government Code and Rule 810 of the California Rules of Court, shall
be considered court costs to be charged against and paid by the
transferring court to the receiving court.
(b) The Judicial Council shall adopt financial policies and
procedures to ensure the timely payment of court costs pursuant to
this section. The policies and procedures shall include, but are not
limited to, both of the following:
(1) The requirement that courts approve a budget and a timeline
for reimbursement before the beginning of the trial.
(2) A process for the Administrative Office of the Courts to
mediate any disputes regarding costs between transferring and
receiving courts.
(c) (1) The presiding judge of the transferring court, or his or
her designee, shall authorize the payment for the reimbursement of
court costs out of the court operations fund of the transferring
court.
(2) Payments for the reimbursement of court costs shall be
deposited into the court operations fund of the receiving court.
SEC. 505. Section 1191.2 of the Penal Code is amended to read:
1191.2. In providing notice to the victim pursuant to Section
1191.1, the probation officer shall also provide the victim with
information concerning the victim's right to civil recovery against
the defendant, the requirement that the court order restitution for
the victim, the victim's right to receive a copy of the restitution
order from the court and to enforce the restitution order as a civil
judgment, the victim's responsibility to furnish the probation
department, district attorney, and court with information relevant to
his or her losses, and the victims' victim'
s opportunity to be compensated from the Restitution
Fund if eligible under Article 1 (commencing with Section 13959) of
Chapter 5 of Part 4 of Division 3 of Title 2 of the Government Code.
This information shall be in the form of written material prepared by
the Judicial Council in consultation with the State Board
of Control California Victim Compensation and
Government Claims Board , shall include the relevant sections of
the Penal Code, and shall be provided to each victim for whom the
probation officer has a current mailing address.
SEC. 506. Section 1203.066 of the Penal Code is amended to read:
1203.066. (a) Notwithstanding Section 1203 or any other law,
probation shall not be granted to, nor shall the execution or
imposition of sentence be suspended for, nor shall a finding bringing
the defendant within the provisions of this section be stricken
pursuant to Section 1385 for, any of the following persons:
(1) A person who is convicted of violating Section 288 or 288.5
when the act is committed by the use of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the victim
or another person.
(2) A person who caused bodily injury on the child victim in
committing a violation of Section 288 or 288.5.
(3) A person who is convicted of a violation of Section 288 or
288.5 and who was a stranger to the child victim or befriended the
child victim for the purpose of committing an act in violation of
Section 288 or 288.5, unless the defendant honestly and reasonably
believed the victim was 14 years of age or older.
(4) A person who used a weapon during the commission of a
violation of Section 288 or 288.5.
(5) A person who is convicted of committing a violation of Section
288 or 288.5 and who has been previously convicted of a violation of
Section 261, 262, 264.1, 266, 266c, 267, 285, 286, 288, 288.5, 288a,
or 289, or of assaulting another person with intent to commit a
crime specified in this paragraph in violation of Section 220, or who
has been previously convicted in another state of an offense which,
if committed or attempted in this state, would constitute an offense
enumerated in this paragraph.
(6) A person who violated Section 288 or 288.5 while kidnapping
the child victim in violation of Section 207, 209, or 209.5.
(7) A person who is convicted of committing a violation of Section
288 or 288.5 against more than one victim.
(8) A person who, in violating Section 288 or 288.5, has
substantial sexual conduct with a victim who is under 14 years of
age.
(9) A person who, in violating Section 288 or 288.5, used obscene
matter, as defined in Section 311, or matter, as defined in Section
311, depicting sexual conduct, as defined in Section 311.3.
(b) "Substantial sexual conduct" means penetration of the vagina
or rectum of either the victim or the offender by the penis of the
other or by any foreign object, oral copulation, or masturbation of
either the victim or the offender.
(c) (1) Except for a violation of subdivision (b) of Section 288,
this section shall only apply if the existence of any fact required
in subdivision (a) is alleged in the accusatory pleading and is
either admitted by the defendant in open court, or found to be true
by the trier of fact.
(2) For the existence of any fact under paragraph (7) of
subdivision (a), the allegation must be made pursuant to this
section.
(d) (1) If a person is convicted of a violation of Section 288 or
288.5, and the factors listed in subdivision (a) are not pled or
proven, probation may be granted only if the following terms and
conditions are met:
(A) If the defendant is a member of the victim's household, the
court finds that probation is in the best interest of the child
victim.
(B) The court finds that rehabilitation of the defendant is
feasible and that the defendant is amenable to undergoing treatment,
and the defendant is placed in a recognized treatment program
designed to deal with child molestation immediately after the grant
of probation or the suspension of execution or imposition of
sentence.
(C) If the defendant is a member of the victim's household,
probation shall not be granted unless the defendant is removed from
the household of the victim until the court determines that the best
interests of the victim would be served by his or her return. While
removed from the household, the court shall prohibit contact by the
defendant with the victim, with the exception that the court may
permit supervised contact, upon the request of the director of the
court-ordered supervised treatment program, and with the agreement of
the victim and the victim's parent or legal guardian, other than the
defendant.
(D) The court finds that there is no threat of physical harm to
the victim if probation is granted.
(2) The court shall state its reasons on the record for whatever
sentence it imposes on the defendant.
(3) The court shall order the psychiatrist or psychologist who is
appointed pursuant to Section 288.1 to include a consideration of the
factors specified in subparagraphs (A), (B), and (C) of
paragraph (1) in making his or her report to the court.
(4) The court shall order the defendant to comply with all
probation requirements, including the requirements to attend
counseling, keep all program appointments, and pay program fees based
upon ability to pay.
(5) No victim shall be compelled to participate in a program or
counseling, and no program may condition a defendant's enrollment on
participation by the victim.
(e) As used in
subdivision (d), the following definitions apply:
(1) "Contact with the victim" includes all physical contact, being
in the presence of the victim, communicating by any means, including
by a third party acting on behalf of the defendant, or sending any
gifts.
(2) "Recognized treatment program" means a program that consists
of the following components:
(A) Substantial expertise in the treatment of child sexual abuse.
(B) A treatment regimen designed to specifically address the
offense.
(C) The ability to serve indigent clients.
(D) Adequate reporting requirements to ensure that all persons
who, after being ordered to attend and complete a program, may be
identified for either failure to enroll in, or failure to
successfully complete, the program, or for the successful completion
of the program as ordered. The program shall notify the court and the
probation department, in writing, within the period of time and in
the manner specified by the court of any person who fails to complete
the program. Notification shall be given if the program determines
that the defendant is performing unsatisfactorily or if the defendant
is not benefiting from the education, treatment, or counseling.
SEC. 507. Section 1524 of the Penal Code is amended to read:
1524. (a) A search warrant may be issued upon any of the
following grounds:
(1) When the property was stolen or embezzled.
(2) When the property or things were used as the means of
committing a felony.
(3) When the property or things are in the possession of any
person with the intent to use them as a means of committing a public
offense, or in the possession of another to whom he or she may have
delivered them for the purpose of concealing them or preventing
their them from being discovered.
(4) When the property or things to be seized consist of any item
or constitute any evidence that tends to show a felony has been
committed, or tends to show that a particular person has committed a
felony.
(5) When the property or things to be seized consist of evidence
that tends to show that sexual exploitation of a child, in violation
of Section 311.3, or possession of matter depicting sexual conduct of
a person under the age of 18 years, in violation of Section 311.11,
has occurred or is occurring.
(6) When there is a warrant to arrest a person.
(7) When a provider of electronic communication service or remote
computing service has records or evidence, as specified in Section
1524.3, showing that property was stolen or embezzled constituting a
misdemeanor, or that property or things are in the possession of any
person with the intent to use them as a means of committing a
misdemeanor public offense, or in the possession of another to whom
he or she may have delivered them for the purpose of concealing them
or preventing their discovery.
(8) When the property or things to be seized include an item or
any evidence that tends to show a violation of Section 3700.5 of the
Labor Code, or tends to show that a particular person has violated
Section 3700.5 of the Labor Code.
(b) The property or , things
or , person , or persons
described in subdivision (a) may be taken on the warrant from any
place, or from any person in whose possession the property or things
may be.
(c) Notwithstanding subdivision (a) or (b), no search warrant
shall issue for any documentary evidence in the possession or under
the control of any person , who is a lawyer as
defined in Section 950 of the Evidence Code, a physician as defined
in Section 990 of the Evidence Code, a psychotherapist as defined in
Section 1010 of the Evidence Code, or a member of the clergy as
defined in Section 1030 of the Evidence Code, and who is not
reasonably suspected of engaging or having engaged in criminal
activity related to the documentary evidence for which a warrant is
requested unless the following procedure has been complied with:
(1) At the time of the issuance of the warrant , the
court shall appoint a special master in accordance with subdivision
(d) to accompany the person who will serve the warrant. Upon service
of the warrant, the special master shall inform the party served of
the specific items being sought and that the party shall have the
opportunity to provide the items requested. If the party, in the
judgment of the special master, fails to provide the items requested,
the special master shall conduct a search for the items in the areas
indicated in the search warrant.
(2) (A) If the party who has been served
states that an item or items should not be disclosed, they shall be
sealed by the special master and taken to court for a hearing.
(B) At the hearing, the party searched shall
be entitled to raise any issues that may be raised pursuant to
Section 1538.5 as well as a claim that the item or items are
privileged, as provided by law. The hearing shall be held in the
superior court. The court shall provide sufficient time for the
parties to obtain counsel and make any motions or present any
evidence. The hearing shall be held within three days of the service
of the warrant unless the court makes a finding that the expedited
hearing is impracticable. In that case the matter shall be heard at
the earliest possible time.
(C) If an item or items are taken to court
for a hearing, any limitations of time prescribed in Chapter 2
(commencing with Section 799) of Title 3 of Part 2 shall be tolled
from the time of the seizure until the final conclusion of the
hearing, including any associated writ or appellate proceedings.
(3) The warrant shall, whenever practicable, be served during
normal business hours. In addition, the warrant shall be served upon
a party who appears to have possession or control of the items
sought. If, after reasonable efforts, the party serving the warrant
is unable to locate the person, the special master shall seal and
return to the court, for determination by the court, any item that
appears to be privileged as provided by law.
(d) (1) As used in this section, a "special
master" is an attorney who is a member in good standing of the
California State Bar and who has been selected from a list of
qualified attorneys that is maintained by the State Bar particularly
for the purposes of conducting the searches described in this
section. These attorneys shall serve without compensation. A special
master shall be considered a public employee, and the governmental
entity that caused the search warrant to be issued shall be
considered the employer of the special master and the applicable
public entity, for purposes of Division 3.6 (commencing with Section
810) of Title 1 of the Government Code, relating to claims and
actions against public entities and public employees. In selecting
the special master, the court shall make every reasonable effort to
ensure that the person selected has no relationship with any of the
parties involved in the pending matter. Any information obtained by
the special master shall be confidential and may not be divulged
except in direct response to inquiry by the court.
(2) In any case in which the magistrate
determines that, after reasonable efforts have been made to obtain a
special master, a special master is not available and would not be
available within a reasonable period of time, the magistrate may
direct the party seeking the order to conduct the search in the
manner described in this section in lieu of the special master.
(e) Any search conducted pursuant to this section by a special
master may be conducted in a manner that permits the party serving
the warrant or his or her designee to accompany the special master as
he or she conducts his or her search. However, that party or his or
her designee may not participate in the search nor shall he or she
examine any of the items being searched by the special master except
upon agreement of the party upon whom the warrant has been served.
(f) As used in this section, "documentary evidence" includes, but
is not limited to, writings, documents, blueprints, drawings,
photographs, computer printouts, microfilms, X-rays, files, diagrams,
ledgers, books, tapes, audio and video recordings, films or
, and papers of any type or description.
(g) No warrant shall issue for any item or items described in
Section 1070 of the Evidence Code.
(h) Notwithstanding any other law, no claim of attorney work
product as described in Chapter 4 (commencing with Section 2018.010)
of Title 4 of Part 4 of the Code of Civil Procedure shall be
sustained where there is probable cause to believe that the lawyer is
engaging or has engaged in criminal activity related to the
documentary evidence for which a warrant is requested unless it is
established at the hearing with respect to the documentary evidence
seized under the warrant that the services of the lawyer were not
sought or obtained to enable or aid anyone to commit or plan to
commit a crime or a fraud.
(i) Nothing in this section is intended to limit an attorney's
ability to request an in camera hearing pursuant to the holding of
the Supreme Court of California in People v. Superior Court (Laff)
(2001) 25 Cal.4th 703.
(j) In addition to any other circumstance permitting a magistrate
to issue a warrant for a person or property in another county, when
the property or things to be seized consist of any item or constitute
any evidence that tends to show a violation of Section 530.5, the
magistrate may issue a warrant to search a person or property located
in another county if the person whose identifying information was
taken or used resides in the same county as the issuing court.
SEC. 508. Section 1557 of the Penal Code is amended to read:
1557. (a) This section shall apply when this state ,
or a city, county, or city and county employs a person to
travel to a foreign jurisdiction outside this state for the express
purpose of returning a fugitive from justice to this state when the
Governor of this state, in the exercise of the authority conferred by
Section 2 , of Article IV ,
of the Constitution of the United States
Constitution , or by the laws of this state, has demanded
the surrender of such the fugitive
from the executive authority of any state of the United States, or of
any foreign government.
(b) Upon the approval of the Governor, the State Controller shall
audit and pay out of the State Treasury as provided in subdivision
(c) or (d) the accounts of the person employed to bring back
such the fugitive, including any money paid by
such that person for all of the
following:
(1) Money paid to the authorities of a sister state for statutory
fees in connection with the detention and surrender of such
the fugitive.
(2) Money paid to the authorities of the sister state for the
subsistence of the fugitive while detained by such
the sister state without payment of which ,
the authorities of such the sister
state refuse to surrender such the
fugitive.
(3) Where it is necessary to present witnesses or evidence in the
sister state, without which the sister state would not surrender the
fugitive, the cost of producing such the
witnesses or evidence in the sister state.
(4) Where the appearance of witnesses has been authorized in
advance by the Governor, who may authorize such
the appearance in unusual cases where the interests of
justice would be served, the cost of producing witnesses to appear in
the sister state on behalf of the fugitive in opposition to his
or her extradition.
(c) No amount shall be paid out of the State Treasury to a city,
county, or city and county except as specified herein. (1)
When follows:
(1) When a warrant has been
issued by any magistrate after the filing of a complaint or the
finding of an indictment and its presentation to the court and filing
by the clerk, and the person named therein as defendant is a
fugitive from justice , who has been found and
arrested in any state of the United States or in any foreign
government, the county auditor shall draw his or her
warrant and the county treasurer shall pay to the person designated
to return the fugitive, the amount of expenses estimated by the
district attorney to be incurred in the return of such
the fugitive.
(2) If the person designated to return the fugitive is a city
officer, the city officer authorized to draw warrants on the city
treasury shall draw his or her warrant and the city
treasurer shall pay to such that person
the amount of expenses estimated by the district attorney to be
incurred in the return of such the
fugitive.
(3) The person designated to return the fugitive shall make no
disbursements from any such fund so funds
advanced without a receipt being obtained therefor showing the
amount, the purpose for which the sum is expended, the
place, the date, and to whom paid.
(4) Such receipts must A receipt obtained
pursuant to paragraph (3) shall be filed by such
the person designated to return the
fugitive with the county auditor or appropriate city officer or
State Controller, as the case may be, together with an affidavit by
such the person that the expenditures
represented by the receipts were necessarily made in the performance
of duty, and when such the advance has
been made by the county or city treasurer to the person designated to
return the fugitive, and has thereafter been audited by the State
Controller, the payment thereof shall be made by the State Treasurer
to the county or city treasury , which that
has advanced the funds.
(5) In every case where the expenses of such
the person so employed to bring back
such the fugitive as herein
provided in this section , are less than the
amount advanced on the recommendation of the district attorney,
such persons so the person employed to
bring back such the fugitive shall
return to the county or city treasurer, as appropriate, the
difference in amount between the aggregate amount of receipts so
filed by him or her , as herein employed, and the amount
advanced to such the person upon the
recommendation of the district attorney.
(6) When no advance has been made to the person designated to
return the fugitive, the sums expended by him or her ,
when audited by the State Controller, shall be paid by the State
Treasurer to the person so designated.
(7) Any payments made out of the State Treasury pursuant to
the provisions of this section shall be made from
appropriations for the fiscal year in which such
those payments are made.
(d) Payments to state agencies will be made in accord with the
rules of the Board of Control California
Victim Compensation and Government Claims Board .
SEC. 509. Section 2786 of the Penal Code is amended to read:
2786. All money in said fund the Inmate
Welfare Fund of the Department of Corrections is
hereby appropriated for educational and recreational purposes at the
various prison camps established under this article and shall be
expended by the director upon warrants drawn upon the State Treasury
by the State Controller after approval of the claims by the
State Board of Control California Victim Compensation
and Government Claims Board .
SEC. 510. Section 2800 of the Penal Code is amended to read:
2800. Commencing July 1, 2005, there is hereby continued in
existence within the Department of Corrections and Rehabilitation the
Prison Industry Authority. As used in this article ,
"authority" means the Prison Industry Authority. Commencing July 1,
2005, any reference to the Department of Corrections shall refer to
the Department of Corrections and Rehabilitation.
SEC. 511. Section 3003 of the Penal Code is amended to read:
3003. (a) (1) Except as otherwise provided
in this section, an inmate who is released on parole shall be
returned to the county that was the last legal residence of the
inmate prior to his or her incarceration.
(2) For purposes of this subdivision, "last
legal residence" shall not be construed to mean the county wherein
the inmate committed an offense while confined in a
the state prison or a local jail
facility or while confined for treatment in a state hospital.
(b) Notwithstanding subdivision (a), an inmate may be returned to
another county if that would be in the best interests of the public.
If the Board of Prison Terms Parole Hearings
setting the conditions of parole for inmates sentenced pursuant
to subdivision (b) of Section 1168, as determined by the parole
consideration panel, or the Department of Corrections and
Rehabilitation setting the conditions of parole for inmates
sentenced pursuant to Section 1170, decides on a return to another
county, it shall place its reasons in writing in the parolee's
permanent record and include these reasons in the notice to the
sheriff or chief of police pursuant to Section 3058.6. In making its
decision, the paroling authority shall consider, among others, the
following factors, giving the greatest weight to the protection of
the victim and the safety of the community:
(1) The need to protect the life or safety of a victim, the
parolee, a witness, or any other person.
(2) Public concern that would reduce the chance that the inmate's
parole would be successfully completed.
(3) The verified existence of a work offer, or an educational or
vocational training program.
(4) The existence of family in another county with whom the inmate
has maintained strong ties and whose support would increase the
chance that the inmate's parole would be successfully completed.
(5) The lack of necessary outpatient treatment programs for
parolees receiving treatment pursuant to Section 2960.
(c) The Department of Corrections and Rehabilitation ,
in determining an out-of-county commitment, shall give priority to
the safety of the community and any witnesses and victims.
(d) In making its decision about an inmate who participated in a
joint venture program pursuant to Article 1.5 (commencing with
Section 2717.1) of Chapter 5, the paroling authority shall give
serious consideration to releasing him or her to the county where the
joint venture program employer is located if that employer states to
the paroling authority that he or she intends to employ the inmate
upon release.
(e) (1) The following information, if available, shall be released
by the Department of Corrections and Rehabilitation to
local law enforcement agencies regarding a paroled inmate who is
released in their jurisdictions:
(A) Last, first, and middle name.
(B) Birth date.
(C) Sex, race, height, weight, and hair and eye color.
(D) Date of parole and discharge.
(E) Registration status, if the inmate is required to register as
a result of a controlled substance, sex, or arson offense.
(F) California Criminal Information Number, FBI number, social
security number, and driver's license number.
(G) County of commitment.
(H) A description of scars, marks, and tattoos on the inmate.
(I) Offense or offenses for which the inmate was convicted that
resulted in parole in this instance.
(J) Address, including all of the following information:
(i) Street name and number. Post office box numbers are not
acceptable for purposes of this subparagraph.
(ii) City and ZIP Code.
(iii) Date that the address provided pursuant to this subparagraph
was proposed to be effective.
(K) Contact officer and unit, including all of the following
information:
(i) Name and telephone number of each contact officer.
(ii) Contact unit type of each contact officer such as units
responsible for parole, registration, or county probation.
(L) A digitized image of the photograph and at least a single
digit fingerprint of the parolee.
(M) A geographic coordinate for the parolee's residence location
for use with a Geographical Information System (GIS) or comparable
computer program.
(2) The information required by this subdivision shall come from
the statewide parolee database. The information obtained from each
source shall be based on the same timeframe.
(3) All of the information required by this subdivision shall be
provided utilizing a computer-to-computer transfer in a format usable
by a desktop computer system. The transfer of this information shall
be continually available to local law enforcement agencies upon
request.
(4) The unauthorized release or receipt of the information
described in this subdivision is a violation of Section 11143.
(f) Notwithstanding any other provision of law, an inmate who is
released on parole shall not be returned to a location within 35
miles of the actual residence of a victim of, or a witness to, a
violent felony as defined in paragraphs (1) to (7), inclusive, of
subdivision (c) of Section 667.5 or a felony in which the defendant
inflicts great bodily injury on any person other than an accomplice
that has been charged and proved as provided for in Section 12022.53,
12022.7, or 12022.9, if the victim or witness has requested
additional distance in the placement of the inmate on parole, and if
the Board of Prison Terms Parole Hearings
or the Department of Corrections and Rehabilitation
finds that there is a need to protect the life, safety, or well-being
of a victim or witness.
(g) (1) Notwithstanding any other law, an inmate who is released
on parole for any violation of Section 288 or 288.5 shall not be
placed or reside, for the duration of his or her period of parole,
within one-quarter mile of any public or private school, including
any or all of kindergarten and grades 1 to 8, inclusive.
(2) Notwithstanding any other law, an inmate who is released on
parole for a violation of Section 288 or 288.5 whom the Department of
Corrections and Rehabilitation determines poses a high risk to the
public shall not be placed or reside, for the duration of his or her
parole, within one-half mile of any public or private school
including any or all of kindergarten and grades 1 to 12, inclusive.
(h) Notwithstanding any other law, an inmate who is released on
parole for an offense involving stalking shall not be returned to a
location within 35 miles of the victim's actual residence or place of
employment if the victim or witness has requested additional
distance in the placement of the inmate on parole, and if the Board
of Prison Terms Parole Hearings or the
Department of Corrections and Rehabilitation finds that
there is a need to protect the life, safety, or well-being of the
victim.
(i) The authority shall give consideration to the equitable
distribution of parolees and the proportion of out-of-county
commitments from a county compared to the number of commitments from
that county when making parole decisions.
(j) An inmate may be paroled to another state pursuant to any
other law.
(k) (1) Except as provided in paragraph (2), the Department of
Corrections and Rehabilitation shall be the agency
primarily responsible for, and shall have control over, the program,
resources, and staff implementing the Law Enforcement Automated Data
System (LEADS) in conformance with subdivision (e).
(2) Notwithstanding paragraph (1), the Department of Justice shall
be the agency primarily responsible for the proper release of
information under LEADS that relates to fingerprint cards.
SEC. 512. Section 4017.1 of the Penal Code is amended to read:
4017.1. (a) (1) Except as provided in paragraph (2), any person
confined in a county jail, industrial farm, road camp, or city jail
who is required or permitted by an order of the board of supervisors
or city council to perform work, and any person while performing
community service in lieu of a fine or custody ,
or who is assigned to work furlough, may not be employed to perform
any function that provides access to personal information of private
individuals, including, but not limited to , the following
: addresses; telephone numbers; health insurance, taxpayer, school,
or employee identification numbers; mothers' maiden names; demand
deposit account, debit card, credit card, savings account
, or checking account numbers, PINs, or passwords; social security
numbers; places of employment; dates of birth; state
state- or government issued
government- issued driver's license or
identification numbers; alien registration numbers; government
passport numbers; unique biometric data, such as fingerprints, facial
scan identifiers, voice prints, retina or iris images, or other
similar identifiers; unique electronic identification numbers;
address or routing codes; and telecommunication identifying
information or access devices.
(2) Notwithstanding paragraph (1), persons assigned to work
furlough programs may be permitted to work in situations that allow
them to retain or look at a driver's license or credit card for no
longer than the period of time needed to complete an immediate
transaction. However, no person assigned to work furlough shall be
placed in any position that may require the deposit of a credit card
or driver's license as insurance or surety.
(b) Any person confined in a county jail, industrial farm, road
camp, or city jail who has access to any personal information shall
disclose that he or she is confined before taking any personal
information from anyone.
(c) This section shall not apply to inmates in employment programs
or public service facilities where incidental contact with personal
information may occur.
SEC. 513. Section 4900 of the Penal Code is amended to read:
4900. Any person who, having been convicted of any crime against
the State of California state amounting
to a felony , and having been
imprisoned therefor in a State
the state prison of this State shall hereafter be
for that conviction, is granted a pardon by the
Governor of this State for the reason that the
crime with which he or she was charged was either not
committed at all or, if committed, was not committed by him or
her , or who, being innocent of the crime with which he or
she was charged for either of the foregoing reasons, shall
have served the term or any part thereof for which he or she
was imprisoned, may, under the conditions hereinafter
provided under this chapter , present a claim
against the State state to the
State Board of Control California Victim Compensation
and Government Claims
Board for the pecuniary injury sustained by him or her
through such the erroneous
conviction and imprisonment.
SEC. 514. Section 4901 of the Penal Code is amended to read:
4901. Such A claim under
Section 4900 , accompanied by a statement of the facts
constituting the claim, verified in the manner provided for the
verification of complaints in civil actions, must be presented by the
claimant to the Board of Control California
Victim Compensation and Government Claims Board within a period
of six months after judgment of acquittal or discharge given, or
after pardon granted, or after release from imprisonment, and at
least four months prior to the next meeting of the Legislature
of this State; and no claim not so presented shall
be considered by the Board of Control
California Victim Compensation and Government Claims Board .
SEC. 515. Section 4902 of the Penal Code is amended to read:
4902. Upon presentation of any such a
claim under Section 4900 , the Board of
Control California Victim Compensation and Government
Claims Board shall fix a time and place for the hearing of the
claim, and shall mail notice thereof to the claimant and to the
Attorney General of this State at least 15 days
prior to the time fixed for such
the hearing.
SEC. 516. Section 4904 of the Penal Code is amended to read:
4904. If the evidence shows that the crime with which the
claimant was charged was either not committed at all, or, if
committed, was not committed by the claimant, and that the claimant
did not, by any act or omission either intentionally or negligently,
contribute to the bringing about of his or her arrest or conviction,
and that the claimant has sustained pecuniary injury through his or
her erroneous conviction and imprisonment, the State Board
of Control California Victim Compensation and
Government Claims Board shall report the facts of the case and
its conclusions to the next Legislature of this state
, with a recommendation that an appropriation be made by
the Legislature for the purpose of indemnifying the claimant for the
pecuniary injury ; but the . The amount
of the appropriation recommended shall be a sum equivalent to one
hundred dollars ($100) per day of incarceration served subsequent to
the claimant's conviction and that appropriation shall not be treated
as gross income to the recipient under the provisions of
the Revenue and Taxation Code.
SEC. 517. Section 4905 of the Penal Code is amended to read:
4905. The Board of Control California
Victim Compensation and Government Claims Board shall make up
its report and recommendation and shall give to the Controller
of this State a statement showing its
recommendations for appropriations under the provisions of
this chapter, as provided by law in cases of other
claimants against this State the state
for which no appropriations have been made.
SEC. 518. Section 4906 of the Penal Code is amended to read:
4906. The Board of Control California
Victim Compensation and Government Claims Board is hereby
authorized to make all needful rules and regulations consistent with
the law for the purpose of carrying into effect the
provisions of this chapter.
SEC. 519. Section 5001 of the Penal Code is amended to read:
5001. (a) The Governor may
request the State Personnel Board to use extensive recruitment and
merit selection techniques and procedures to provide lists of persons
qualified for appointment pursuant to Article 14 (commencing with
Section 12838) of Chapter 1 of Part 2.5 of Division 3 of the
Government Code. The Governor may appoint any person from the lists
of qualified persons or may reject all names and appoint other
persons who meet the requirements of the positions.
SEC. 520. Section 5009 of the Penal Code is amended to read:
5009. (a) It is the intention of the Legislature that all
prisoners shall be afforded reasonable opportunities to exercise
religious freedom.
(b) (1) Except in extraordinary circumstances, upon the transfer
of an inmate to another state prison institution, any member of the
clergy or spiritual adviser who has been previously authorized by the
Department of Corrections and Rehabilitation to visit
that inmate shall be granted visitation privileges at the institution
to which the inmate is transferred within 72 hours of the transfer.
(2) Visitations by members of the clergy or spiritual advisers
shall be subject to the same rules, regulations, and policies
relating to general visitations applicable at the institution to
which the inmate is transferred.
(3) A departmental or volunteer chaplain who has ministered to or
advised an inmate incarcerated in state prison may, voluntarily and
without compensation, continue to minister to or advise the inmate
while he or she is on parole, provided that the departmental or
volunteer chaplain so notifies the warden and the parolee's parole
agent in writing.
(c) Nothing in this section limits the department's ability to
prohibit a departmental chaplain from ministering to a parolee, or to
exclude a volunteer chaplain from department facilities, if either
is found to be in violation of any law or regulation and that
violation would ordinarily be grounds for adverse action or denial of
access to a facility or person under the department's custody.
SEC. 521. Section 5071 of the Penal Code is amended to read:
5071. (a) The Secretary of the Department of Corrections and
Rehabilitation shall not assign any prison inmate to employment that
provides that inmate with access to personal information of private
individuals, including, but not limited to , the following
: addresses; telephone numbers; health insurance, taxpayer, school,
or employee identification numbers; mothers' maiden names; demand
deposit account, debit card, credit card, savings account
, or checking account numbers, PINs, or passwords; social security
numbers; places of employment; dates of birth; state
state- or government issued
government- issued driver's license or
identification numbers; alien registration numbers; government
passport numbers; unique biometric data, such as fingerprints, facial
scan identifiers, voice prints, retina or iris images, or other
similar identifiers; unique electronic identification numbers;
address or routing codes; and telecommunication identifying
information or access devices.
(b) Any person who is a prison inmate, and who has access to any
personal information, shall disclose that he or she is a prison
inmate before taking any personal information from anyone.
(c) This section shall not apply to inmates in employment programs
or public service facilities where incidental contact with personal
information may occur.
SEC. 522. Section 5076.1 of the Penal Code is amended to read:
5076.1. (a) The board shall meet at each of the state prisons and
facilities under the jurisdiction of the Division of Juvenile
Facilities. Meetings shall be held at whatever times may be necessary
for a full and complete study of the cases of all inmates and wards
whose matters are considered. Other times and places of meeting may
also be designated by the board. Each commissioner of the board shall
receive his or her actual necessary traveling expenses
incurred in the performance of his or her official duties. Where the
board performs its functions by meeting en banc in either public or
executive sessions to decide matters of general policy, at least nine
members shall be present, and no action shall be valid unless it is
concurred in by a majority vote of those present.
(b) The board may use deputy commissioners to whom it may assign
appropriate duties, including hearing cases and making decisions.
Those decisions shall be made in accordance with policies approved by
a majority of the total membership of the board.
(c) The board may meet and transact business in panels. Each panel
shall consist of two or more persons, subject to subdivision (d) of
Section 3041. No action shall be valid unless concurred in by a
majority vote of the persons present. In the event of a tie vote, the
matter shall be referred to a randomly selected committee, comprised
of a majority of the commissioners specifically appointed to hear
adult parole matters and who are holding office at the time.
(d) When determining whether commissioners or deputy commissioners
shall hear matters pursuant to subdivision (f) of Section 5075.1, or
any other matter submitted to the board involving wards under the
jurisdiction of the Division of Juvenile Facilities, the chair shall
take into account the degree of complexity of the issues presented by
the case. Any decision resulting in the extension of a parole
consideration date shall entitle a ward to appeal the decision to a
panel comprised of two or more commissioners, of which no more than
one may be a deputy commissioner. The panel shall consider and act
upon the appeal in accordance with rules established by the board.
(e) Consideration of parole release for persons sentenced to life
imprisonment pursuant to subdivision (b) of Section 1168 shall be
heard by a panel of two or more commissioners or deputy
commissioners, of which only one may be a deputy commissioner. A
recommendation for recall of a sentence under subdivisions (d) and
(e) of Section 1170 shall be made by a panel, a majority of whose
commissioners are commissioners of the Board of Parole Hearings.
SEC. 523. Section 6024 of the Penal Code is amended to read:
6024. Commencing July 1, 2005, there is hereby established
with within the Department of
Corrections and Rehabilitation the Corrections Standards Authority.
As of July 1, 2005, any reference to the Board of Corrections refers
to the Corrections Standards Authority. As of that date, the Board of
Corrections is abolished.
SEC. 524. Section 11163 of the Penal Code is amended to read:
11163. (a) The Legislature finds and declares that even though
the Legislature has provided for immunity from liability, pursuant to
Section 11161.9, for persons required or authorized to report
pursuant to this article, that immunity does not eliminate the
possibility that actions may be brought against those persons based
upon required reports of abuse pursuant to other laws.
In order to further limit the financial hardship that those
persons may incur as a result of fulfilling their legal
responsibility, it is necessary that they not be unfairly burdened by
legal fees incurred in defending those actions.
(b) (1) Therefore, a health practitioner may present a claim to
the State Board of Control California Victim
Compensation and Government Claims Board for reasonable
attorney's fees incurred in any action against that person on the
basis of that person reporting in accordance with this article if the
court dismisses the action upon a demurrer or motion for summary
judgment made by that person or if that person prevails in the
action.
(2) The State Board of Control California
Victim Compensation and Government Claims Board shall allow the
claim pursuant to paragraph (1) if the requirements of paragraph (1)
are met, and the claim shall be paid from an appropriation to be
made for that purpose. Attorney's fees awarded pursuant to this
section shall not exceed an hourly rate greater than the rate charged
by the Attorney General at the time the award is made and shall not
exceed an aggregate amount of fifty thousand dollars ($50,000).
(3) This subdivision shall not apply if a public entity has
provided for the defense of the action pursuant to Section 995 of the
Government Code.
SEC. 525. Section 11172 of the Penal Code is amended to read:
11172. (a) No mandated reporter shall be civilly or criminally
liable for any report required or authorized by this article, and
this immunity shall apply even if the mandated reporter acquired the
knowledge or reasonable suspicion of child abuse or neglect outside
of his or her professional capacity or outside the scope of his or
her employment. Any other person reporting a known or suspected
instance of child abuse or neglect shall not incur civil or criminal
liability as a result of any report authorized by this article unless
it can be proven that a false report was made and the person knew
that the report was false or was made with reckless disregard of the
truth or falsity of the report, and any person who makes a report of
child abuse or neglect known to be false or with reckless disregard
of the truth or falsity of the report is liable for any damages
caused. No person required to make a report pursuant to this article,
nor any person taking photographs at his or her direction, shall
incur any civil or criminal liability for taking photographs of a
suspected victim of child abuse or neglect, or causing photographs to
be taken of a suspected victim of child abuse or neglect, without
parental consent, or for disseminating the photographs with the
reports required by this article. However, this section shall not be
construed to grant immunity from this liability with respect to any
other use of the photographs.
(b) Any person, who, pursuant to a request from a government
agency investigating a report of suspected child abuse or neglect,
provides the requesting agency with access to the victim of a known
or suspected instance of child abuse or neglect shall not incur civil
or criminal liability as a result of providing that access.
(c) (1) The Legislature finds that even
though it has provided immunity from liability to persons required or
authorized to make reports pursuant to this article, that immunity
does not eliminate the possibility that actions may be brought
against those persons based upon required or authorized reports. In
order to further limit the financial hardship that those persons may
incur as a result of fulfilling their legal responsibilities, it is
necessary that they not be unfairly burdened by legal fees incurred
in defending those actions. Therefore, a mandated reporter may
present a claim to the State Board of Control
California Victim Compensation and Government Claims
Board for reasonable attorney's fees and costs incurred in any
action against that person on the basis of making a report required
or authorized by this article if the court has dismissed the action
upon a demurrer or motion for summary judgment made by that person,
or if he or she prevails in the action. The State Board of
Control California Victim Compensation and Government
Claims Board shall allow that claim if the requirements of this
subdivision are met, and the claim shall be paid from an
appropriation to be made for that purpose. Attorney's fees awarded
pursuant to this section shall not exceed an hourly rate greater than
the rate charged by the Attorney General of the State of California
at the time the award is made and shall not exceed an aggregate
amount of fifty thousand dollars ($50,000).
(2) This subdivision shall not apply if a
public entity has provided for the defense of the action pursuant to
Section 995 of the Government Code.
(d) A court may award attorney's fees and costs to a commercial
film and photographic print processor when a suit is brought against
the processor because of a disclosure mandated by this article and
the court finds this suit to be frivolous.
SEC. 526. 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, 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.
(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, and 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, 417.6, 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) (i) Finds that the petitioner does not
have a previous conviction under this subdivision no matter when the
prior conviction occurred.
(ii) 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) (i) Finds that the petitioner does not
have a previous conviction under this subdivision, no matter when the
prior conviction occurred.
(ii) 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, 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, 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, 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 as
defined in Section 6218 of the Family Code, or
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) The 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 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. 527. Section 12280 of the Penal Code is amended to read:
12280. (a) (1) Any person who, within this state, manufactures or
causes to be manufactured, distributes, transports, or imports into
the state, keeps for sale, or offers or exposes for sale, or who
gives or lends any assault weapon or any .50 BMG rifle, except as
provided by this chapter, is guilty of a felony, and upon conviction
shall be punished by imprisonment in the state prison for four, six,
or eight years.
(2) In addition and consecutive to the punishment imposed under
paragraph (1), any person who transfers, lends, sells, or gives any
assault weapon or any .50 BMG rifle to a minor in violation of
paragraph (1) shall receive an enhancement of one year.
(3) Except in the case of a first violation involving not more
than two firearms as provided in subdivisions (b) and (c), for
purposes of this section, if more than one assault weapon or .50 BMG
rifle is involved in any violation of this section, there shall be a
distinct and separate offense for each.
(b) Any person who, within this state, possesses any assault
weapon, except as provided in this chapter, is punishable
shall be punished by imprisonment in a county
jail for a period not exceeding one year, or by imprisonment in the
state prison. However, a first violation of these provisions is
punishable by a fine not exceeding five hundred dollars ($500)
, if the person was found in possession of no more
than two firearms in compliance with subdivision (c) of Section
12285 and the person meets all of the following conditions:
(1) The person proves that he or she lawfully possessed the
assault weapon prior to the date it was defined as an
assault weapon pursuant to Section 12276, 12276.1, or 12276.5.
(2) The person has not previously been convicted of a violation of
this section.
(3) The person was found to be in possession of the assault weapon
within one year following the end of the one-year registration
period established pursuant to subdivision (a) of Section 12285.
(4) The person relinquished the firearm pursuant to Section 12288,
in which case the assault weapon shall be destroyed pursuant to
Section 12028.
(c) Any person who, within this state, possesses any .50 BMG
rifle, except as provided in this chapter, is punishable
shall be punished by a fine of one thousand
dollars ($1,000), imprisonment in a county jail for a period not to
exceed one year, or by both that fine and imprisonment. However, a
first violation of these provisions is punishable by a fine not
exceeding five hundred dollars ($500) , if the
person was found in possession of no more than two firearms in
compliance with subdivision (a) of Section 12285 and the person meets
the conditions set forth in paragraphs (1), (2), and (3):
(1) The person proves that he or she lawfully possessed the .50
BMG rifle prior to January 1, 2005.
(2) The person has not previously been convicted of a violation of
this section.
(3) The person was found to be in possession of the .50 BMG rifle
within one year following the end of the .50 BMG rifle registration
period established pursuant to subdivision (a) of Section 12285.
(4) Firearms seized pursuant to this subdivision from persons who
meet all of the conditions set forth in paragraphs (1), (2), and (3)
shall be returned unless the court finds in the interest of public
safety, after notice and hearing, that the .50 BMG rifle should be
destroyed pursuant to Section 12028. Firearms seized from persons who
do not meet the conditions set forth in paragraphs (1), (2), and (3)
shall be destroyed pursuant to Section 12028.
(d) Notwithstanding Section 654 or any other provision of law, any
person who commits another crime while violating this section may
receive an additional, consecutive punishment of one year for
violating this section in addition and consecutive to the punishment,
including enhancements, which is prescribed for the other crime.
(e) Subdivisions (a), (b), and (c) shall not apply to the sale to,
purchase by, importation of, or possession of assault weapons or a .
50 BMG rifle by the Department of Justice, police departments,
sheriffs' offices, marshals' offices, the Youth and Adult
Corrections Agency Department of Corrections and
Rehabilitation , the Department of the California Highway
Patrol, district attorneys' offices, Department of Fish and Game,
Department of Parks and Recreation, or the military or naval forces
of this state or of the United States, or any federal law enforcement
agency for use in the discharge of their official duties.
(f) (1) Subdivisions (b) and (c) shall not prohibit the possession
or use of assault weapons or a .50 BMG rifle by sworn peace officer
members of those agencies specified in subdivision (e) for law
enforcement purposes, whether on or off duty.
(2) Subdivisions (a), (b), and (c) shall not prohibit the
delivery, transfer, or sale of an assault weapon or a .50 BMG rifle
to, or the possession of an assault weapon or a .50 BMG rifle by, a
sworn peace officer member of an agency specified in subdivision (e)
, provided that if the peace officer is
authorized by his or her employer to possess or receive the assault
weapon or the .50 BMG rifle. Required authorization is defined as
verifiable written certification from the head of the agency,
identifying the recipient or possessor of the assault weapon as a
peace officer and authorizing him or her to receive or possess the
specific assault weapon. For this exemption to apply, in the case of
a peace officer who possesses or receives the assault weapon prior to
January 1, 2002, the officer shall register the assault weapon
pursuant to Section 12285 on or before April 1, 2002 ;
, and in the case of a peace officer who
possesses or receives the assault weapon on or after January 1, 2002,
the officer shall register the assault weapon pursuant to Section
12285 not later than 90 days after possession or receipt. In the case
of a peace officer who possesses or receives a .50 BMG rifle on or
before January 1, 2005, the officer shall register the .50 BMG rifle
on or before April 30, 2006. In the case of a peace officer who
possesses or receives a .50 BMG rifle after January 1, 2005, the
officer shall register the .50 BMG rifle not later than one year
after possession or receipt. The peace officer must include with the
registration, a copy of the authorization required pursuant to this
paragraph.
(3) Nothing in this section shall be construed to limit or
prohibit the delivery, transfer, or sale of an assault weapon or a .
50 BMG rifle to, or the possession of an assault weapon or a .50 BMG
rifle by, a member of a federal law enforcement agency provided that
person is authorized by the employing agency to possess the assault
weapon or .50 BMG rifle.
(g) Subdivision (b) shall not apply to the possession of an
assault weapon during the 90-day period immediately after the date it
was specified as an assault weapon pursuant to Section 12276.5, or
during the one-year period after the date it was defined as an
assault weapon pursuant to Section 12276.1, if all of the following
are applicable:
(1) The person is eligible under this chapter to register the
particular assault weapon.
(2) The person lawfully possessed the particular assault weapon
prior to the date it was specified as an assault weapon pursuant to
Section 12276.5, or prior to the date it was defined as an assault
weapon pursuant to Section 12276.1.
(3) The person is otherwise in compliance with this chapter.
(h) Subdivisions (a), (b), and (c) shall not apply to the
manufacture by persons who are issued permits pursuant to Section
12287 of assault weapons or .50 BMG rifles for sale to the following:
(1) Exempt entities listed in subdivision (e).
(2) Entities and persons who have been issued permits pursuant to
Section 12286 or 12287.
(3) Entities outside the state who have, in effect, a federal
firearms dealer's license solely for the purpose of distribution to
an entity listed in paragraphs (4) to (6), inclusive.
(4) Federal military and law enforcement agencies.
(5) Law enforcement and military agencies of other states.
(6) Foreign governments and agencies approved by the United States
State Department.
(i) Subdivision (a) shall not apply to a person who is the
executor or administrator of an estate that includes an assault
weapon or a .50 BMG rifle registered under Section 12285 or that was
possessed pursuant to paragraph (1) of subdivision (f) which
that is disposed of as authorized by the
probate court, if the disposition is otherwise permitted by this
chapter.
(j) Subdivisions (b) and (c) shall not apply to a person who is
the executor or administrator of an estate that includes an assault
weapon or a .50 BMG rifle registered under Section 12285 or that was
possessed pursuant to paragraph (1) of subdivision (f) if the assault
weapon or .50 BMG rifle is possessed at a place set forth in
paragraph (1) of subdivision (c) of Section 12285 or as authorized by
the probate court.
(k) Subdivision (a) shall not apply to either of the
following :
(1) A person who lawfully possesses and has registered an assault
weapon or .50 BMG rifle pursuant to this chapter who lends that
assault weapon or .50 BMG rifle to another if all the following
apply:
(A) The person to whom the assault weapon or .50 BMG rifle is lent
is 18 years of age or over and is not in a class of persons
prohibited from possessing firearms by virtue of Section 12021 or
12021.1 of this code or Section 8100 or 8103 of the Welfare and
Institutions Code.
(B) The person to whom the assault weapon or .50 BMG rifle is lent
remains in the presence of the registered possessor of the assault
weapon or .50 BMG rifle.
(C) The assault weapon or .50 BMG rifle is possessed at any of the
following locations:
(i) While on a target range that holds a regulatory or business
license for the purpose of practicing shooting at that target range.
(ii) While on the premises of a target range of a public or
private club or organization organized for the purpose of practicing
shooting at targets.
(iii) While attending any exhibition, display, or educational
project that is about firearms and that is sponsored by, conducted
under the auspices of, or approved by a law enforcement agency or a
nationally or state recognized entity that fosters proficiency in, or
promotes education about, firearms.
(2) The return of an assault weapon or .50 BMG rifle to the
registered possessor, or the lawful possessor, which is lent by the
same pursuant to paragraph (1).
(l) Subdivisions (b) and (c) shall not apply to the possession of
an assault weapon or .50 BMG rifle by a person to whom an assault
weapon or .50 BMG rifle is lent pursuant to subdivision (k).
(m) Subdivisions (a), (b), and (c) shall not apply to the
possession and importation of an assault weapon or a .50 BMG rifle
into this state by a nonresident if all of the following conditions
are met:
(1) The person is attending or going directly to or coming
directly from an organized competitive match or league competition
that involves the use of an assault weapon or a .50 BMG rifle.
(2) The competition or match is conducted on the premises of one
of the following:
(A) A target range that holds a regulatory or business license for
the purpose of practicing shooting at that target range.
(B) A target range of a public or private club or organization
that is organized for the purpose of practicing shooting at targets.
(3) The match or competition is sponsored by, conducted under the
auspices of, or approved by, a law enforcement agency or a nationally
or state recognized entity that fosters proficiency in, or promotes
education about, firearms.
(4) The assault weapon or .50 BMG rifle is transported in
accordance with Section 12026.1 or 12026.2.
(5) The person is 18 years of age or over and is not in a class of
persons prohibited from possessing firearms by virtue of Section
12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare
and Institutions Code.
(n) Subdivisions , (b) and (c) shall not apply
to any of the following persons:
(1) A person acting in accordance with Section 12286 or 12287.
(2) A person who has a permit to possess an assault weapon or a .
50 BMG rifle issued pursuant to Section 12286 or 12287 when he or she
is acting in accordance with Section 12285, 12286, or 12287.
(o) Subdivisions (a), (b), and (c) shall not apply to any of the
following persons:
(1) A person acting in accordance with Section 12285.
(2) A person acting in accordance with Section 12286, 12287, or
12290.
(p) Subdivisions (b) and (c) shall not apply to the registered
owner of an assault weapon or a .50 BMG rifle possessing that firearm
in accordance with subdivision (c) of Section 12285.
(q) Subdivision (a) shall not apply to the importation into this
state of an assault weapon or a .50 BMG rifle by the registered owner
of that assault weapon or a .50 BMG rifle , if it
is in accordance with the provisions of subdivision (c) of Section
12285.
(r) Subdivision (a) shall not apply during the first 180 days of
the 2005 calendar year to the importation into this state of a .50
BMG rifle by a person who lawfully possessed that .50 BMG rifle in
this state prior to January 1, 2005.
(s) Subdivision (c) shall not apply to the possession of a .50 BMG
rifle that is not defined or specified as an assault weapon pursuant
to this chapter, by any person prior to May 1, 2006 , if
all of the following are applicable:
(1) The person is eligible under this chapter to register that .50
BMG rifle.
(2) The person lawfully possessed the .50 BMG rifle prior to
January 1, 2005.
(3) The person is otherwise in compliance with this chapter.
(t) Subdivisions (a), (b) , and (c) shall not apply to
the sale of assault weapons or .50 BMG rifles by persons who are
issued permits pursuant to Section 12287 to any of the following:
(1) Exempt entities listed in subdivision (e).
(2) Entities and persons who have been issued permits pursuant to
Section 12286 or 12287.
(3) Federal military and law enforcement agencies.
(4) Law enforcement and military agencies of other states.
(5) Foreign governments and agencies approved by the United States
State Department.
(6) Officers described in subdivision (f) who are authorized to
possess assault weapons or .50 BMG rifles pursuant to subdivision
(f).
(u) As used in this chapter, the date a firearm is an assault
weapon is the earliest of the following:
(1) The effective date of an amendment to Section 12276 that adds
the designation of the specified firearm.
(2) The effective date of the list promulgated pursuant to Section
12276.5 that adds or changes the designation of the specified
firearm.
(3) The operative date of Section 12276.1, as specified in
subdivision (d) of that section.
SEC. 528. Section 13300.1 of the Penal Code is repealed.
13300.1. Any information generated pursuant to the provisions of
paragraph (10) of subdivision (c) of Section 13300 shall be destroyed
at the end of the limitation period for the filing of a civil action
arising out of the screening or accreditation of persons as current
or prospective employees, concessionaires and contractors and their
subcontractors, agents and employees for Olympic Games purposes. The
knowing and willful failure (1) to notify the recipient as required
by Section 13300, or (2) to destroy any information as required by
this section is a misdemeanor punishable in a county jail not
exceeding one year or by a fine not exceeding one thousand dollars
($1,000) or both.
SEC. 529. Section 13603 of the Penal Code is amended to read:
13603. (a) The Department of Corrections and Rehabilitation shall
provide 16 weeks of training to each correctional peace officer
cadet. Except as provided by subdivision (b), this training shall be
completed by the cadet prior to his or her assignment to a post or
position as a correctional peace officer.
(b) If an agreement is reached between the department and the
bargaining unit for the correctional peace officers that this
subdivision shall apply, and with the approval of the Corrections
Standards Authority on how to implement the on-the-job training
requirements of the this subdivision,
the department shall provide a total of 16 weeks of training to each
correctional peace officer cadet as follows:
(1) Twelve weeks of the training shall be at the department's
training academy. Cadets shall be sworn in as correctional peace
officers upon the completion of this initial 12 weeks.
(2) Four weeks shall be at the institution where the cadet is
assigned to a post or position.
(c) The department shall provide a minimum of two weeks of
training to each newly appointed first-line supervisor.
(d) Training standards previously established pursuant to this
section shall remain in effect until training requirements are
established by the Corrections Standards Authority pursuant to
Section 13602.
SEC. 530. Section 13810 of the Penal Code is amended to read:
13810. (a) There is hereby created in the
state government the California Council on Criminal Justice, which
shall be composed of the following members: the Attorney General; the
Administrative Director of the Courts; 19 members appointed by the
Governor, including the Commissioner of the Department of the Highway
Patrol, the Secretary of the Department of Corrections and
Rehabilitation, or his or her designee, a subordinate officer of the
Secretary of Corrections and Rehabilitation, and the State Public
Defender; eight members appointed by the Senate Rules
Committee on Rules ; and eight members appointed
by the Speaker of the Assembly.
(b) (1) The remaining
appointees of the Governor shall include different persons from each
of the following categories: a district attorney, a sheriff, a county
public defender, a county probation officer, a member of a city
council, a member of a county board of supervisors, a faculty member
of a college or university qualified in the field of criminology,
police science, or law, a person qualified in the field of criminal
justice research and six private citizens, including a representative
of a citizens, professional, or community organization. The
(2) The Senate Committee on Rules
shall include among its appointments different persons from each of
the following categories: a member of the Senate Public
Safety Committee on Public Safety , a
representative of the counties, a representative of the cities, a
judge designated by the Judicial Council, and four private citizens,
including a representative of a citizens, professional, or community
organization. The
(3) The Speaker of the Assembly
shall include among his or her appointments different
persons from each of the following categories: a representative of
the counties, a representative of the cities, a member of the
Assembly Committee on Public Safety, a chief of police, a peace
officer, and three private citizens, including a representative of a
citizens, professional, or community organization directly related to
delinquency prevention.
(c) The Governor shall select a
chairman chairperson from among the members of
the council.
SEC. 531. Section 13826.7 of the Penal Code is amended to read:
13826.7. The agency or agencies designated by the Director of
Finance pursuant to Section 13820 and the California Council on
Criminal Justice are encouraged to utilize any federal funds that may
become available for purposes of this act
chapter . This act chapter
becomes operative only if federal funds are made available for its
implementation.
SEC. 532. Section 13835.2 of the Penal Code is amended to read:
13835.2. (a) Funds appropriated from the Victim-Witness
Assistance Fund shall be made available through the agency or
agencies designated by the Director of Finance pursuant to Section
13820 to any public or private nonprofit agency for the assistance of
victims and witnesses which that meets
all of the following requirements:
(1) It provides comprehensive services to victims and witnesses of
all types of crime. It is the intent of the Legislature to make
funds available only to programs which that
do not restrict services to victims and witnesses of a
particular type of crime, and which do not
restrict services to victims of crime where
in which there is a suspect in the case.
(2) It is recognized by the board of supervisors as the major
provider of comprehensive services to victims and witnesses in the
county.
(3) It is selected by the board of supervisors as the agency to
receive funds pursuant to this article.
(4) It assists victims of crime in the preparation, verification,
and presentation of their claims to the State Board of
Control California Victim Compensation and Government
Claims Board for indemnification pursuant to Article 1
(commencing with Section 13959) of Part 4 of Division 3 of Title 2 of
the Government Code.
(5) It cooperates with the State Board of Control
California Victim Compensation and Government Claims
Board in verifying the data required by Article 1 (commencing
with Section 13959) of Part 4 of Division 3 of Title 2 of the
Government Code.
(b) The agency or agencies designated by the Director of Finance
pursuant to Section 13820 shall consider the following factors,
together with any other circumstances it deems appropriate, in
awarding funds to public or private nonprofit agencies designated as
victim and witness assistance centers:
(1) The capability of the agency to provide comprehensive services
as defined in this article.
(2) The stated goals and objectives of the center.
(3) The number of people to be served and the needs of the
community.
(4) Evidence of community support.
(5) The organizational structure of the agency which
that will operate the center.
(6) The capability of the agency to provide confidentiality of
records.
(c) The agency or agencies designated by the Director of Finance
pursuant to Section 13820 shall conduct an evaluation of the
activities and performance of the centers established pursuant to
Chapter 1256 of the
Statutes of 1977 to determine their ability to comply with the intent
of this article, and shall report the findings thereon to the
Legislature by January 1, 1985.
SEC. 533. Section 14030 of the Penal Code is amended to read:
14030. (a) The Attorney General shall establish a liaison with
the United States Marshal's office in order to facilitate the legal
processes over which the federal government has sole authority,
including, but not limited to, those processes included in Section
14024. The liaison shall coordinate all requests for federal
assistance relating to witness protection as established by this
title.
(b) The Attorney General shall pursue all federal sources that may
be available for implementing this program. For that purpose, the
Attorney General shall establish a liaison with the United States
Department of Justice.
(c) The Attorney General , with the Board of
Control California Victim Compensation and Government
Claims Board, shall establish procedures to maximize federal
funds for witness protection services.
SEC. 534. Section 6108 of the Public Contract Code is amended to
read:
6108. (a) (1) Every contract entered into by any state agency for
the procurement or laundering of apparel, garments , or
corresponding accessories, or the procurement of equipment,
materials, or supplies, other than procurement related to a public
works contract, shall require that a contractor certify that no
apparel, garments or , corresponding
accessories, equipment, materials, or supplies furnished to the state
pursuant to the contract have been laundered or produced in whole or
in part by sweatshop labor, forced labor, convict labor, indentured
labor under penal sanction, abusive forms of child labor ,
or exploitation of children in sweatshop labor, or with the benefit
of sweatshop labor, forced labor, convict labor, indentured labor
under penal sanction, abusive forms of child labor , or
exploitation of children in sweatshop labor. The contractor shall
agree to comply with this provision of the contract.
(2) The contract shall specify that the contractor is required to
cooperate fully in providing reasonable access to the contractor's
records, documents, agents or ,
employees, or premises if reasonably required by authorized officials
of the contracting agency, the Department of Industrial Relations,
or the Department of Justice determine the contractor's compliance
with the requirements under paragraph (1).
(b) (1) Any contractor contracting with the state who knew or
should have known that the apparel, garments or
, corresponding accessories, equipment, materials, or
supplies furnished to the state were laundered or produced in
violation of the conditions specified in subdivision (a) when
entering into a contract pursuant to subdivision (a), may, subject to
subdivision (c), have any or all of the following sanctions imposed:
(A) The contract under which the prohibited apparel, garments
, or corresponding accessories, equipment, materials, or
supplies were laundered or provided may be voided at the option of
the state agency to which the equipment, materials, or supplies were
provided.
(B) The contractor may be assessed a penalty which
that shall be the greater of one thousand
dollars ($1,000) or an amount equaling 20 percent of the value of the
apparel, garments or , corresponding
accessories, equipment, materials, or supplies that the state agency
demonstrates were produced in violation of the conditions specified
in paragraph (1) of subdivision (a) and that were supplied to the
state agency under the contract.
(C) The contractor may be removed from the bidder's list for a
period not to exceed 360 days.
(2) Any moneys collected pursuant to this subdivision shall be
deposited into the General Fund.
(c) (1) When imposing the sanctions described in subdivision (b),
the contracting agency shall notify the contractor of the right to a
hearing, if requested, within 15 days of the date of the notice. The
hearing shall be before an administrative law judge of the Office of
Administrative Hearings in accordance with the procedures specified
in Chapter 5 (commencing with Section 11500) of Part 1 of Division 3
of Title 2 of the Government Code. The administrative law judge shall
take into consideration any measures the contractor has taken to
ensure compliance with this section, and may waive any or all of the
sanctions if it is determined that the contractor has acted in good
faith.
(2) The agency shall be assessed the cost of the administrative
hearing, unless the agency has prevailed in the hearing, in which
case the contractor shall be assessed the cost of the hearing.
(d) (1) Any state agency that investigates a complaint against a
contractor for violation of this section may limit its investigation
to evaluating the information provided by the person or entity
submitting the complaint and the information provided by the
contractor.
(2) Whenever a contracting officer of the contracting agency has
reason to believe that the contractor failed to comply with
the requirements under paragraph (1) of subdivision (a),
the agency shall refer the matter for investigation to the head of
the agency and, as the head of the agency determines appropriate, to
either the Director of Industrial Relations or the Department of
Justice.
(e) (1) For purposes of this section, the term
"forced labor" shall have the same meaning as in Section 1307 of
Title 19 of the United States Code.
(2) "Abusive forms of child labor" means any of the following:
(A) All forms of slavery or practices similar to slavery, such as
the sale and trafficking of children, debt bondage, and serfdom and
forced or compulsory labor, including forced or compulsory
recruitment of children for use in armed conflict.
(B) The use, procuring, or offering of a child for prostitution,
for the production of pornography, or for pornographic performances.
(C) The use, procuring, or offering of a child for illicit
activities, in particular for the production and trafficking of
illicit drugs.
(D) All work or service exacted from or performed by any person
under the age of 18 years either under the menace of any
penalty for its nonperformance and for which the worker does not
offer oneself voluntarily, or under a contract, the enforcement of
which can be accomplished by process or penalties.
(E) All work or service exacted from or performed by a child in
violation of all applicable laws of the country of manufacture
governing the minimum age of employment, compulsory education, and
occupational health and safety.
(3) "Exploitation of children in sweatshop labor" means all work
or service exacted from or performed by any person under the age of
18 years in violation of more than one law of the country of
manufacture governing wage and benefits, occupational health and
safety, nondiscrimination, and freedom of association.
(4) "Sweatshop labor" means all work or service extracted
exacted from or performed by any person in
violation of more than one law of the country of manufacture
governing wages, employee benefits, occupational health, occupational
safety, nondiscrimination, or freedom of association.
(5) "Apparel, garments , or corresponding accessories"
includes, but is not limited to, uniforms.
(6) Notwithstanding any other provision of this section, "forced
labor" and "convict labor" do not include work or services performed
by an inmate or a person employed by the Prison Industry Authority.
(7) "State agency" means any state agency in this state.
(f) (1) On or before February 1, 2004, the Department of
Industrial Relations shall establish a contractor responsibility
program, including a Sweatfree Code of Conduct, to be signed by all
bidders on state contracts and subcontracts. Any state agency
responsible for procurement shall ensure that the Sweatfree Code of
Conduct is available for public review at least 30 calendar days
between the dates of receipt and the final award of the contract. The
Sweatfree Code of Conduct shall list the requirements that
contractors are required to meet, as set forth in subdivision (g).
(2) Upon implementation in the manner described in paragraph (4),
every contract entered into by any state agency for the procurement
or laundering of apparel, garments , or corresponding
accessories, or for the procurement of equipment or supplies, shall
require that the contractor certify in accordance with the Sweatfree
Code of Conduct that no apparel, garments , or
corresponding accessories, or equipment, materials, or supplies,
furnished to the state pursuant to the contract have been laundered
or produced, in whole or in part, by sweatshop labor.
(3) The appropriate procurement agency, in consultation with the
Director of Industrial Relations, shall employ a phased and targeted
approach to implementing the Sweatfree Code of Conduct. Sweatfree
Code of Conduct procurement policies involving apparel, garments
, and corresponding accessories may be permitted a phasein
period of up to one year for purposes of feasibility and providing
sufficient notice to contractors and the general public. The
appropriate procurement agency, in consultation with the Director of
Industrial Relations, shall target other procurement categories based
on the magnitude of verified sweatshop conditions and the
feasibility of implementation, and may set phasein goals and
timetables of up to three years to achieve compliance with the
principles of the Sweatfree Code of Conduct.
(4) In order to facilitate compliance with the Sweatfree Code of
Conduct, the Department of Industrial Relations shall explore
mechanisms employed by other governmental entities, including, but
not limited to, New Jersey Executive Order 20, of 2002, to ensure
that businesses that contract with this state are in compliance with
this section and any regulations or requirements promulgated in
conformance with this section, as amended by the act adding
this paragraph Section 2 of Chapter 711 of the
Statutes of 2003 . The mechanisms explored may include, but not
be limited to, authorization to contract with a competent nonprofit
organization that is neither funded nor controlled, in whole or in
part, by a corporation that is engaged in the procurement or
laundering of apparel, garments, or corresponding accessories, or the
procurement of equipment, materials, or supplies. The Department of
Industrial Relations, in complying with this paragraph, shall also
consider any feasible and cost-effective monitoring measures that
will encourage compliance with the Sweatfree Code of Conduct.
(5) To ensure public access and confidence, the Department of
Industrial Relations shall ensure public awareness and access to
proposed contracts by postings on the Internet and through
communication to advocates for garment workers, unions, and other
interested parties. The appropriate agencies shall establish a
mechanism for soliciting and reviewing any information indicating
violations of the Sweatfree Code of Conduct by prospective or current
bidders, contractors, or subcontractors. The agencies shall make
their findings public when they reject allegations against bidding or
contracting parties.
(6) Contractors shall ensure that their subcontractors comply in
writing with the Sweatfree Code of Conduct, under penalty of perjury.
Contractors shall attach a copy of the Sweatfree Code of Conduct to
the certification required by subdivision (a).
(g) No state agency may enter into a contract with any contractor
unless the contractor meets the following requirements:
(1) Contractors and subcontractors in California shall comply with
all appropriate state laws concerning wages, workplace safety,
rights to association and assembly, and nondiscrimination standards
as well as appropriate federal laws. Contractors based in other
states in the United States shall comply with all appropriate laws of
their states and appropriate federal laws. For contractors whose
locations for manufacture or assembly are outside the United States,
those contractors shall ensure that their subcontractors comply with
the appropriate laws of countries where the facilities are located.
(2) Contractors and subcontractors shall maintain a policy of not
terminating any employee except for just cause, and employees shall
have access to a mediator or to a mediation process to resolve
certain workplace disputes that are not regulated by the National
Labor Relations Board.
(3) Contractors and subcontractors shall ensure that workers are
paid, at a minimum, wages and benefits in compliance with applicable
local, state, and national laws of the jurisdiction in which the
labor, on behalf of the contractor or subcontractor, is performed.
Whenever a state agency expends funds for the procurement or
laundering of apparel, garments, or corresponding accessories, or the
procurement of equipment, materials, or supplies, other than
procurement related to a public works contract, the applicable labor
standards established by the local jurisdiction through the exercise
of either local police powers or local spending powers in which the
labor, in compliance with the contract or purchase order for which
the expenditure is made, is performed shall apply with regard to the
contract or purchase order for which the expenditure is made, unless
the applicable local standards are in conflict with, or are
explicitly preempted by, state law. A state agency may not require,
as a condition for the receipt of state funds or assistance, that a
local jurisdiction refrain from applying the labor standards that are
otherwise applicable to that local jurisdiction. The Department of
Industrial Relations may, without incurring additional expenses,
access information from any nonprofit organization, including, but
not limited to, the World Bank, that gathers and disseminates data
with respect to wages paid throughout the world, to allow the
Department of Industrial Relations to determine whether contractors
and subcontractors are compensating their employees at a level that
enables those employees to live above the applicable poverty level.
(4) All contractors and subcontractors shall comply with the
overtime laws and regulations of the country in which their employees
are working.
(5) All overtime hours shall be worked voluntarily. Workers shall
be compensated for overtime at either (A) the rate of compensation
for regular hours of work, or (B) as legally required in the country
of manufacture, whichever is greater.
(6) No person may be employed who is younger than the legal age
for children to work in the country in which the facility is located.
In no case may children under the age of 15 years be employed in the
manufacturing process. Where the age for completing compulsory
education is higher than the standard for the minimum age of
employment, the age for completing education shall apply to this
section.
(7) There may be no form of forced labor of any kind, including
slave labor, prison labor, indentured labor, or bonded labor,
including forced overtime hours.
(8) The work environment shall be safe and healthy and, at a
minimum, be in compliance with relevant local, state, and national
laws. If residential facilities are provided to workers, those
facilities shall be safe and healthy as well.
(9) There may be no discrimination in hiring, salary, benefits,
performance evaluation, discipline, promotion, retirement ,
or dismissal on the basis of age, sex, pregnancy, maternity
leave status, marital status, race, nationality, country of origin,
ethnic origin, disability, sexual orientation, gender identity,
religion, or political opinion.
(10) No worker may be subjected to any physical, sexual,
psychological, or verbal harassment or abuse, including corporal
punishment, under any circumstances, including, but not limited to,
retaliation for exercising his or her right to free speech and
assembly.
(11) No worker may be forced to use contraceptives or take
pregnancy tests. No worker may be exposed to chemicals, including
glues and solvents, that endanger reproductive health.
(12) Contractors and bidders shall list the names and addresses of
each subcontractor to be utilized in the performance of the
contract, and list each manufacturing or other facility or operation
of the contractor or subcontractor for performance of the contract.
The list, which shall be maintained and updated to show any changes
in subcontractors during the term of the contract, shall provide
company names, owners or officers, addresses, telephone numbers,
e-mail addresses, and the nature of the business association.
(h) Any person who certifies as true any material matter pursuant
to this section that he or she knows to be false is guilty of a
misdemeanor.
(i) The provisions of this section, as amended by the act
adding this subdivision Section 2 of Chapter 711 of
the Statutes of 2003 , shall be in addition to any other
provisions that authorize the prosecution and enforcement of local
labor laws and may not be interpreted to prohibit a local prosecutor
from bringing a criminal or civil action against an individual or
business that violates the provisions of this section.
(j) (1) The certification requirements set forth in subdivisions
(a) and (f) do not apply to a credit card purchase of goods of two
thousand five hundred dollars ($2,500) or less.
(2) The total amount of exemption authorized herein shall not
exceed seven thousand five hundred dollars ($7,500) per year for each
company from which a state agency is purchasing goods by credit
card. It shall be the responsibility of each state agency to monitor
the use of this exemption and adhere to these restrictions on these
purchases.
SEC. 535. The heading of Article 3 (commencing with Section 9201)
of Chapter 9 of Part 1 of Division 2 of the Public Contract Code is
repealed.
Article 3.
SEC. 536. Section 10240.5 of the Public Contract Code is amended
to read:
10240.5. (a) The Departments of General
Services, Transportation, and Water Resources shall jointly adopt and
may, from time to time, modify, revise, or repeal uniform
regulations to implement the provisions of this
article, which regulations shall be consistent with this article and
Article 7.2 (commencing with Section 10245). The regulations may
include , but not need not be limited
to:
(a)
(1) The method of initiating arbitration.
(b)
(2) The place of hearing based upon the convenience of
the parties.
(c)
(3) Procedures for the selection of a neutral
arbitrator.
(d)
(4) The form and content of any pleading.
(e)
(5) Procedure for conducting hearings.
(f)
(6) The providing of experts to assist the arbitrator
in the event the assistance is needed.
(g)
(7) The content of the award.
(h)
(8) Simplified procedures for claims of fifty thousand
dollars ($50,000) or less.
(b) Pending adoption of the initial uniform
regulations under this section, the arbitration rules set forth in
Subchapter 3 (commencing with Section 301) of Chapter 2 of Title 1 of
the California Administrative Code of R
egulations , shall govern the conduct of
arbitrations under this chapter.
SEC. 537. Section 10329 of the Public Contract Code is amended to
read:
10329. No person shall willfully split a single transaction into
a series of transations transactions
for the purposes purpose of evading the
bidding requirements of this article.
SEC. 538. Section 12183 of the Public Contract Code is amended to
read:
12183. (a) All state departments and agencies, including, but not
limited to, the Department of Transportation, the Department of
Water Resources, the Department of Foresty
Forestry and Fire Protection , and the Department of Parks and
Recreation, shall give purchase preference to compost and
co-compost cocompost products when they can be
substituted for, and cost no more than, the cost of regular
fertilizer or soil amendment products, or both, if the
co-compost cocompost products meet all
applicable state standards and regulations, as determined by
appropriate testing. The product preference shall include, but not be
limited to, the construction of noise attenuation barriers and
safety walls, highway planting projects, and recultivation and
erosion control programs.
SEC. 539. Section 20105 of the Public Contract Code is amended to
read:
20105. The provisions of this This
article shall apply to contracts subject to the State School Building
Aid Law of 1949 provided for in Chapter 6 4
(commencing with Section 15700) of Part 10 of Division
1 of Title 1 of the Education Code.
SEC. 540. Section 20118.4 of the Public Contract Code is amended
to read:
20118.4. (a) If any change or alteration of
a contract governed by the provisions of Article
3 (commencing with Section 39643) of Chapter 4 of Part 23
17595) of Chapter 5 of Part 10.5 of the
Education Code is ordered by the governing board of the district, the
change or alteration shall be specified in writing and the cost
agreed upon between the governing board and the contractor. The board
may authorize the contractor to proceed with performance of the
change or alteration , without the formality of securing
bids, if the cost so agreed upon does not exceed the greater of
the following :
(a)
(1) The amount specified in Section 20111 or 20114,
whichever is applicable to the original contract ; or
.
(b)
(2) Ten percent of the original contract price.
(b) The governing board of any school
district, or of two or more school districts governed by governing
boards of identical personnel, having an average daily attendance of
400,000 or more as shown by the annual report of the county
superintendent of schools for the preceding year, may also authorize
any change or alteration of a contract for reconstruction or
rehabilitation work , other than for the construction of
new buildings or other new structures, where
if the cost of the change or alteration is in excess of the
limitations in subdivisions (a) and (b)
paragraphs (1) and (2) of subdivision (a) but does not exceed
25 percent of the original contract price, without the formality of
securing bids, when such and the change
or alteration is a necessary and integral part of the work under the
contract and the taking of bids would delay the completion of the
contract. Changes exceeding 15 percent of the original contract price
shall be approved by an affirmative vote of not less than 75 percent
of the members of the governing board.
SEC. 541. Section 20133 of the Public Contract Code is amended to
read:
20133. (a) (1) This section provides for an alternative procedure
on bidding on building construction projects in excess of two
million five hundred thousand dollars ($2,500,000) applicable only in
the Counties of Alameda, Butte, Contra Costa, Del Norte, El Dorado,
Fresno, Humboldt, Kings, Los Angeles, Madera, Mariposa, Mendocino,
Merced, Monterey, Napa, Orange, Placer, Sacramento, San Diego, San
Joaquin, San Luis Obispo, Santa Clara, Shasta, Siskiyou, Solano,
Sonoma, Stanislaus, Tulare, Yolo, and Yuba, upon approval of the
appropriate board of supervisors.
(2) These counties may award the project using either the lowest
responsible bidder or by best value.
(b) (1) It is the intent of the Legislature to enable these
counties to utilize cost-effective options for building and
modernizing public facilities. It is not the intent of the
Legislature to authorize this procedure for transportation
facilities, including, but not limited to, roads and bridges.
(2) The Legislature also finds and declares that utilizing a
design-build contract requires a clear understanding of the roles and
responsibilities of each participant in the design-build process.
The Legislature also finds that the cost-effective benefits to the
counties are achieved by shifting the liability and risk for cost
containment and project completion to the design-build entity.
(3) It is the intent of the Legislature to provide an alternative
and optional procedure for bidding and building construction projects
for these counties.
(4) The design-build approach may be used, but is not limited to
use , when it is anticipated that it
will: reduce project cost, expedite project completion, or provide
design features not achievable through the design-bid-build method.
(5) If the board of supervisors elects to proceed under this
section, the board of supervisors shall establish and enforce for
design-build projects a labor compliance program containing the
requirements outlined in Section 1771.5 of the Labor Code, or it
shall contract with a third party to operate a labor compliance
program containing the requirements outlined in Section 1771.5 of the
Labor Code. This requirement shall not apply to any project where
the county or the design-build entity has entered into any collective
bargaining agreement or agreements that bind all of the contractors
performing work on the projects.
(c) As used in this section:
(1) "Best value" means a value determined by objective criteria
related to price, features, functions, and life-cycle costs.
(2) "Design-build" means a procurement process in which both the
design and construction of a project are procured from a single
entity.
(3) "Design-build entity" means a partnership, corporation, or
other legal entity that is able to provide appropriately licensed
contracting, architectural, and engineering services as needed
pursuant to a design-build contract.
(4) "Project" means the construction of a building and
improvements directly related to the construction of a building, but
does not include the construction of other infrastructure, including,
but not limited to, streets and highways, public rail transit, or
water resources facilities and infrastructure.
(d) Design-build projects shall progress in a four-step process,
as follows:
(1) (A) The county shall prepare a set of documents setting forth
the scope of the project. The documents may include, but are not
limited to, the size, type , and desired design character
of the buildings and site, performance specifications covering the
quality of materials, equipment, and workmanship, preliminary plans
or building layouts, or any other information deemed necessary to
describe adequately the
county's needs. The performance specifications and any plans shall be
prepared by a design professional who is duly licensed and
registered in California.
(B) Any architect or engineer retained by the county to assist in
the development of the project specific documents shall not be
eligible to participate in the preparation of a bid with any
design-build entity for that project.
(2) (A) Based on the documents prepared in paragraph (1), the
county shall prepare a request for proposals that invites interested
parties to submit competitive sealed proposals in the manner
prescribed by the county. The request for proposals shall include,
but is not limited to, the following elements:
(i) Identification of the basic scope and needs of the project or
contract, the expected cost range, and other information deemed
necessary by the county to inform interested parties of the
contracting opportunity, to include the methodology that will be used
by the county to evaluate proposals and specifically if the contract
will be awarded to the lowest responsible bidder.
(ii) Significant factors which that
the county reasonably expects to consider in evaluating proposals,
including cost or price and all nonprice related factors.
(iii) The relative importance of weight assigned to each of the
factors identified in the request for proposals.
(B) With respect to clause (iii) of subparagraph (A), if a
nonweighted system is used, the agency shall specifically disclose
whether all evaluation factors other than cost or price when combined
are:
(i) Significantly more important than cost or price.
(ii) Approximately equal in importance to cost or price.
(iii) Significantly less important than cost or price.
(C) If the county chooses to reserve the right to hold discussions
or negotiations with responsive bidders, it shall so specify in the
request for proposal and shall publish separately or incorporate into
the request for proposal applicable rules and procedures to be
observed by the county to ensure that any discussions or negotiations
are conducted in good faith.
(3) (A) The county shall establish a procedure to prequalify
design-build entities using a standard questionnaire developed by the
county. In preparing the questionnaire, the county shall consult
with the construction industry, including representatives of the
building trades and surety industry. This questionnaire shall require
information including, but not limited to, all of the following:
(i) If the design-build entity is a partnership, limited
partnership, or other association, a listing of all of the partners,
general partners, or association members known at the time of bid
submission who will participate in the design-build contract,
including, but not limited to, mechanical subcontractors.
(ii) Evidence that the members of the design-build entity have
completed, or demonstrated the experience, competency, capability,
and capacity to complete , projects of similar size,
scope, or complexity, and that proposed key personnel have sufficient
experience and training to competently manage and complete the
design and construction of the project, as well as a financial
statement that assures the county that the design-build entity has
the capacity to complete the project.
(iii) The licenses, registration, and credentials required to
design and construct the project, including information on the
revocation or suspension of any license, credential, or registration.
(iv) Evidence that establishes that the design-build entity has
the capacity to obtain all required payment and performance bonding,
liability insurance, and errors and omissions insurance.
(v) Any prior serious or willful violation of the California
Occupational Safety and Health Act of 1973, contained in Part 1
(commencing with Section 6300) of Division 5 of the Labor Code ,
or the federal Occupational Safety and Health Act of 1970
(Public Law (P.L. 91-596), settled
against any member of the design-build entity, and information
concerning workers' compensation experience history and worker safety
program.
(vi) Information concerning any debarment, disqualification, or
removal from a federal, state, or local government public works
project. Any instance where in which an
entity, its owners, officers, or managing employees submitted a bid
on a public works project and were found to be nonresponsive, or were
found by an awarding body not to be a responsible bidder.
(vii) Any instance where in which
the entity, or its owner owners
, officers, or managing employees , defaulted on a
construction contract.
(viii) Any violations of the Contractors' State License Law
(Chapter 9 (commencing with Section 7000) of Division 3 of the
Business and Professions Code), excluding alleged violations of
federal or state law including the payment of wages, benefits,
apprenticeship requirements, or personal income tax withholding, or
of Federal Insurance Contribution
Contributions Act (FICA) (FICA; 26
U.S.C. Sec. 3101 et seq.) withholding requirements settled
against any member of the design-build entity.
(ix) Information concerning the bankruptcy or receivership of any
member of the design-build entity, including information concerning
any work completed by a surety.
(x) Information concerning all settled adverse claims, disputes,
or lawsuits between the owner of a public works project and any
member of the design-build entity during the five years preceding
submission of a bid pursuant to this section, in which the claim,
settlement, or judgment exceeds fifty thousand dollars ($50,000).
Information shall also be provided concerning any work completed by a
surety during this period.
(xi) In the case of a partnership or other association, that is
not a legal entity, a copy of the agreement creating the partnership
or association and specifying that all partners or association
members agree to be fully liable for the performance under the
design-build contract.
(B) The information required pursuant to this subdivision shall be
verified under oath by the entity and its members in the manner in
which civil pleadings in civil actions are verified. Information that
is not a public record pursuant to the California Public Records Act
(Chapter 3.5 , (commencing with Section
6250) of Division 7 , of Title 1
of the Government Code) shall not be open to public inspection.
(4) The county shall establish a procedure for final selection of
the design-build entity. Selection shall be based on either of the
following criteria:
(A) A competitive bidding process resulting in lump-sum bids by
the prequalified design-build entities. Awards shall be made to the
lowest responsible bidder.
(B) A county may use a design-build competition based upon best
value and other criteria set forth in paragraph (2) of
subdivision (d) . The design-build competition shall
include the following elements:
(i) Competitive proposals shall be evaluated by using only the
criteria and selection procedures specifically identified in the
request for proposal. However, the following minimum factors shall
each represent at least 10 percent of the total weight of
consideration given to all criteria factors ;
: price, technical design , and construction
expertise, life cycle costs over 15 years or more, skilled labor
force availability, and acceptable safety record.
(ii) Once the evaluation is complete, the top three responsive
bidders shall be ranked sequentially from the most advantageous to
the least.
(iii) The award of the contract shall be made to the responsible
bidder whose proposal is determined, in writing, to be the most
advantageous.
(iv) Notwithstanding any provision of this code, upon issuance of
a contract award, the county shall publicly announce its award,
identifying the contractor to whom the award is made, along with a
written decision supporting its contract award and stating the basis
of the award. The notice of award shall also include the county's
second and third ranked design-build entities.
(v) For the purposes of this paragraph, "skilled labor force
availability" shall be determined by the existence of an agreement
with a registered apprenticeship program, approved by the California
Apprenticeship Council, which has graduated apprentices in each of
the preceding five years. This graduation requirement shall not apply
to programs providing apprenticeship training for any craft that has
been deemed by the Department of Labor and the Department of
Industrial Relations to be an apprenticeable craft in the five years
prior to enactment of this act.
(vi) For the purposes of this paragraph, a bidder's "safety record"
shall be deemed "acceptable" if their experience modification rate
for the most recent three-year period is an average of 1.00 or less,
and their average Total Recordable Injury/Illness rate and average
lost work rate for the most recent three-year period does not exceed
the applicable statistical standards for its business category or if
the bidder is a party to an alternative dispute resolution system as
provided for in Section 3201.5 of the Labor Code.
(e) (1) Any design-build entity that is selected to design and
build a project pursuant to this section shall possess or obtain
sufficient bonding to cover the contract amount for nondesign
services, and errors and omission insurance coverage sufficient to
cover all design and architectural services provided in the contract.
This section does not prohibit a general or engineering contractor
from being designated the lead entity on a design-build entity for
the purposes of purchasing necessary bonding to cover the activities
of the design-build entity.
(2) Any payment or performance bond written for the purposes of
this section shall be written using a bond form developed by the
county.
(f) All subcontractors that were not listed by the design-build
entity in accordance with clause (i) of subparagraph (A) of paragraph
(3) of subdivision (d) shall be awarded by the design-build entity
in accordance with the design-build process set forth by the county
in the design-build package. All subcontractors bidding on contracts
pursuant to this section shall be afforded the protections contained
in Chapter 4 (commencing with Section 4100) of Part 1. The
design-build entity shall do both of the following:
(1) Provide public notice of the availability of work to be
subcontracted in accordance with the publication requirements
applicable to the competitive bidding process of the county.
(2) Provide a fixed date and time on which the subcontracted work
will be awarded in accordance with the procedure established pursuant
to this section.
(g) The minimum performance criteria and design standards
established pursuant to paragraph (1) of subdivision (d) shall be
adhered to by the design-build entity. Any deviations from those
standards may only be allowed by written consent of the county.
(h) The county may retain the services of a design professional or
construction project manager, or both, throughout the course of the
project in order to ensure compliance with this section.
(i) Contracts awarded pursuant to this section shall be valid
until the project is completed.
(j) Nothing in this section is intended to affect, expand, alter,
or limit any rights or remedies otherwise available at law.
(k) (1) If the county elects to award a project pursuant to this
section , retention proceeds withheld by the county from
the design-build entity shall not exceed 5 percent if a performance
and payment bond, issued by an admitted surety insurer, is required
in the solicitation of bids.
(2) In a contract between the design-build entity and the
subcontractor, and in a contract between a subcontractor and any
subcontractor thereunder, the percentage of the retention proceeds
withheld may not exceed the percentage specified in the contract
between the county and the design-build entity. If the design-build
entity provides written notice to any subcontractor who is not a
member of the design-build entity, prior to or at the time the bid is
requested, that a bond may be required and the subcontractor
subsequently is unable or refuses to furnish a bond to the
design-build entity, then the design-build entity may withhold
retention proceeds in excess of the percentage specified in the
contract between the county and the design-build entity from any
payment made by the design-build entity to the subcontractor.
(l) Each county that elects to proceed under this section and uses
the design-build method on a public works project shall submit to
the Legislative Analyst's Office before December 1, 2009, a report
containing a description of each public works project procured
through the design-build process and completed after November 1,
2004, and before November 1, 2009. The report shall include, but
shall not be limited to, all of the following information:
(1) The type of project.
(2) The gross square footage of the project.
(3) The design-build entity that was awarded the project.
(4) The estimated and actual length of time to complete the
project.
(5) The estimated and actual project costs.
(6) A description of any written protests concerning any aspect of
the solicitation, bid, proposal, or award of the design-build
project, including the resolution of the protests.
(7) An assessment of the prequalification process and criteria.
(8) An assessment of the effect of retaining 5-percent retention
on the project.
(9) A description of the Labor Force Compliance Program and an
assessment of the project impact, where required.
(10) A description of the method used to award the contract. If
best value was the method, the report shall describe the factors used
to evaluate the bid, including the weighting of each factor and an
assessment of the effectiveness of the methodology.
(11) An assessment of the project impact of "skilled labor force
availability."
(12) An assessment of the design-build dollar limits on county
projects. This assessment shall include projects where the county
wanted to use design-build and was precluded by the dollar
limitation. This assessment shall also include projects where the
best value method was not used due to dollar limitations.
(13) An assessment of the most appropriate uses for the
design-build approach.
(m) Any county named in subdivision (a) that elects to not use the
authority granted by this section may submit a report to the
Legislative Analyst's Office explaining why the county elected to not
use the design-build method.
(n) On or before January 1, 2010, the Legislative Analyst shall
report to the Legislature on the use of the design-build method by
counties pursuant to this section, including the information listed
in subdivision (l). The report may include recommendations for
modifying or extending this section.
(o) 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. 542. Section 20407 of the Public Contract Code is amended to
read:
20407. In the event of great emergency, including, but not
limited to, states of disaster defined in Section 1505
8558 of the Military and Veterans
Government Code, upon the majority vote of the
board, the board may proceed at once to replace or repair any and all
bridges without adopting plans, specifications, strain sheets ,
or working details , and without
letting contracts or without calling for bids.
Such The work may be done by day labor
under the direction of the board , or by contract,
or by a combination of the two. If done wholly or in part by
contract, the contractor shall be paid the actual cost of the
use of machinery and tools and of material and labor expended
by him or her in doing the work, plus not more than 15
percent to cover all profits, supervision, and any other expense. No
more than the lowest current market prices shall be paid for
materials.
SEC. 543. Section 20448 of the Public Contract Code is amended to
read:
20448. At the hearing on the resolution of intention, the
legislative body, without further notice and hearing, may order any
changes, as defined in Sections 5230 and 5231 of the Streets
and Highways Code 20446 and 20447 , except
changes to include additional territory in the assessment district.
Any changes to include additional territory and all changes after the
hearing on the resolution of intention shall be ordered only as
provided in this chapter.
SEC. 544. Section 20450 of the Public Contract Code is amended to
read:
20450. If said a resolution
required un der Section 20449 proposes to include
additional territory in the assessment district, at least 15 days
prior to the hearing fixed therein, the clerk shall mail a copy of
such the resolution to all persons
owning real property within said the
additional territory whose names and addresses appear on the last
equalized assessment roll or as known to the clerk. This section
shall not apply if the hearing of objections is not required pursuant
to Section 5232 of the Streets and Highways Code
20449 .
SEC. 545. Section 20451 of the Public Contract Code is amended to
read:
20451. Written objections to the proposed changes may be filed
with the clerk by any interested person at any time not later than
the time set for the hearing. The legislative body shall hear and
pass upon such the objections at the
time appointed, or at any time to which the hearing thereof may be
adjourned, and its decision thereon shall be final and conclusive. If
no written objections to said the
changes have been delivered to the clerk up to the hour set for
hearing thereon, or if said the
objections have been heard and found by the legislative body to be
insufficient or have been overruled or denied, immediately thereupon
the legislative body by an affirmative vote of four-fifths of its
members shall acquire jurisdiction to order said
the changes made. If the hearing of objections is not
required, pursuant to Section 5232 of the Streets and
Highways Code 20449 , immediately upon passage
of the resolution the legislative body shall acquire
jursidiction jurisdiction to order said
the changes made. The decisions and
determinations of the legislative body ordering such
the changes shall be final and conclusive upon
all persons entitled to appeal thereupon to the legislative body.
SEC. 546. Section 20452 of the Public Contract Code is amended to
read:
20452. (a) No changes, except as provided
in Section 5234.1 of the Streets and Highways Code
20453 , shall be made pursuant to this chapter
which that will increase the estimated
assessable cost by more than 20 percent of the total estimated cost
of the work as determined from either of the following :
(a)
(1) The engineer's estimate, if the change is ordered
prior to the award of the contract , or .
(b)
(2) The successful bid, if the change is ordered after
the award of the contract ; .
provided, that any
(b) Any changes so
made pursuant to subdivision (a) shall also be
subject to the limitations, if any, contained in any law applicable
to the proceedings , which law may impose
that imposes limitations upon the amount by which the estimated
cost of the work or improvement may be increased by reason of
such those changes.
SEC. 547. Section 20456 of the Public Contract Code is amended to
read:
20456. Subject to the limitations of Section 5236 of the
Streets and Highways Code 20455 , the contract
may include a provision to determine a fair and equitable price for
changes in the work , including, but not limited to,
arbitration or cost plus a fixed fee.
SEC. 548. Section 20487 of the Public Contract Code is amended to
read:
20487. If, in the opinion of the legislative body, the public
interest will not be served by allowing the property owners to take a
contract, it may so provide in the resolution of intention. In
such that event, no notice of award of
contract need be published pursuant to Section 10502.1 of
the Streets and Highways Code 20484 .
SEC. 549. Section 20522 of the Public Contract Code is amended to
read:
20522. (a) All bids for construction work
shall be presented under sealed cover and shall be accompanied by one
of the following forms of bidder's security:
(a)
(1) Cash.
(b)
(2) A cashier's check made payable to the district.
(c)
(3) A certified check made payable to the district.
(d)
(4) A bidder's bond executed by an admitted surety
insurer, made payable to the district.
(b) Upon an award to the lowest bidder, the
security of an unsuccessul unsuccessful
bidder shall be returned in a reasonable period of time, but in no
event shall that security be held by the district beyond 60 days from
the time the award is made.
SEC. 550. Section 20563 of the Public Contract Code is amended to
read:
20563. The board shall give notice by publication once a week for
three successive weeks in a newspaper published in the
office county in which the principal office of a
district is kept , or if no newspaper is published in that
county, in a newspaper the board deems advisable, calling for bids
for the construction of the works or of any portion of them.
SEC. 551. Section 20582 of the Public Contract Code is amended to
read:
20582. When work is to be done , the board shall give
notice calling for bids by publication in the office
county in which the principal office of a district is
kept once a week for four consecutive weeks.
SEC. 552. Section 20688.2 of the Public Contract Code is amended
to read:
20688.2. Any work of grading, clearing, demolition, or
construction undertaken by the agency shall be done by contract after
competitive bids if the cost of such that
work exceeds the amount specified in Section 37902 of
the Government Code 20162 , as that section
presently exists or may be hereafter amended. With respect to work of
grading, clearing, demolition, or construction which
that is not in excess of such
that amount, the agency may contract the work without
competitive bids, and in contracting such the
work may give priority to the residents of such
the redevelopment project areas and to persons
displaced from such thos e
areas as a result of redevelopment activities.
SEC. 553. Section 20853 of the Public Contract Code is amended to
read:
20853. Immediately upon the award of the contract, the
superintendent of streets shall enter into a contract with the person
to whom the contract was awarded for making the improvements upon
the portions of the streets described in the notice inviting bids,
and at the price stated in the bid. The contractor shall execute
bonds in the manner required by Section 5254 of the Streets
and Highways Code 20426 .
SEC. 554. Section 20894 of the Public Contract Code is amended to
read:
20894. If the contractor abandons the work, or fails to proceed
with it as rapidly as required by the contract, the city forester may
relet the work in the same manner as in the first letting, or
complete or cause it to be completed in any other manner he or
she deems advisable. The city forester may retain the amount of
any expense incidental to the reletting, out of any funds due or to
become due to the contractor, and may also hold the contract
or contractor and the sureties upon the
contractor's bond responsible for any additional expenses and for any
damages resulting from the abandonment or failure to complete the
contract.
SEC. 555. Section 21020.8 of the Public Contract Code is amended
to read:
21020.8. Any work or improvements provided for in the act may be
located, constructed, and maintained in, along, or across any public
road or highway in the County of Orange, in the manner as to afford
security for life and property, but the board of supervisors of the
district shall restore or cause to be restored any public road or
highway to its former state as near as may be, be
so as not to impair its usefulness.
SEC. 556. Section 21040 of the Public Contract Code is amended to
read:
21040. The provisions of this This
article shall apply to contracts by the Orange County Water District,
as provided for in Chapter 770 924 of
the Statutes of 1933.
SEC. 557. Section 21071 of the Public Contract Code is amended to
read:
21071. (a) All contracts for any improvement or unit of work
, except as hereinafter provided in
this article, estimated to cost in excess of ten thousand
dollars ($10,000) shall be let to the lowest responsible bidder in
the manner hereinafter provided in this
article . The said board of supervisors of
said the district shall advertise
, by three insertions in a daily newspaper of general
circulation or two insertions in a weekly newspaper of general
circulation printed and published in said the
district , inviting sealed proposals for the
construction of , the improvement or work before
any contract shall be made therefor for
the improvement or work , and may let by contract
separately any part of said the work or
improvement. The board shall require the successful bidder to file
with the board good and sufficient bonds to be approved by the board
conditioned upon the faithful performance of the contract and upon
the payment of their claims for labor and material in connection
therewith, such with the contract. The
bonds to shall contain the terms and
conditions set forth in Chapter 3 of Division 5 of Title 1
of the Government 7 (commencing with Section 3247) of
Title 15 of Part 4 of Division 3 of the Civil Code and
to be subject to the provisions of that
chapter. The board shall also have the right to reject any and all
bids. In the event If all proposals are
rejected or , no proposals are
received pursuant to the advertisement therefor
, or where the estimated cost of
such the work does not exceed the sum of
ten thousand dollars ($10,000), or the work consists of channel
protection, or
maintenance work, or emergency work when necessary in order
to protect life and property from impending flood damage, the board
of supervisors may , without advertising for bids
therefor , have said
the work done by force account or negotiated contract.
(b) The district shall have the power to purchase in the open
market without advertising for bids therefor ,
materials, supplies, equipment, and other personal property for use
in any work therewith either under contract or by
force account where if the costs
thereof do not exceed ten thousand dollars
($10,000). It shall be the duty of the purchasing agent of Ventura
County, as the ex officio purchasing agent of the Ventura County
Flood Control District, unless otherwise ordered by the board of
supervisors, to purchase for the district all materials, supplies,
equipment, and other personal property necessary to carry out the
purposes of this act article , and to
engage independent contractors to perform sundry services for the
district, where if the aggregate cost
of such that work, exclusive of
materials to be furnished by the district, does not exceed ten
thousand dollars ($10,000).
(c) The purchasing agent shall make all such
the purchases and contracts upon proper requisition
therefor , signed by the engineer-manager of the
district, or his or her authorized representative.
(d) If the work consists of the maintenance or alteration of
existing facilities, including electrical, painting, and roofing
in connection therewith , and
if the cost of labor and materials for such
the work , according to the engineer's estimate
, will exceed five thousand dollars ($5,000), and if the work
is not of the type of work referred to in this section, such
the maintenance and alteration work shall be
performed under a contract or contracts which
that shall be let to the lowest responsible bidder or bidders
in the manner described in this section.
SEC. 558. Section 21471 of the Public Contract Code is amended to
read:
21471. Subject to the limitations in Section 14 of Chapter 166 of
the Statutes of 1967, the agency may join with one or more public
agencies, private corporations, or other persons for that
the purpose to of
carrying out any of the powers of the agency, and for that purpose to
contract with such the other public
agencies or , private corporations
, or persons for the purpose of financing such
the acquisitions, constructions, and operations.
Such The contract may provide for
contributions to be made by each party thereto and for
to the contract, the division and apportionment
of the expenses of acquisitions and operations, and the division and
apportionment of the benefits , and the
services and products therefrom, and may provide
for any agency to effect such the
acquisitions and to carry on such those
operations, and shall provide , in the powers and methods
of procedure for such the agency
, the method by which such the
agency may contract. Such The contracts
with other public agencies or ,
private corporations , or persons may contain
such any other and further covenants and
agreements as that may be necessary or
convenient to accomplish the purposes thereof
of the contracts . The term "public agency" as
As used in this section , "public agency
" shall be deemed to mean and include the United
States or any department or agency thereof of
, the State of California or any department or agency thereof,
or a county, city, public corporation, or other public
district of this state. The term "private corporation" as
As used in this section , "private
corporation " shall be deemed to mean and include
any private corporation organized under the laws of the United States
or of this or any other state thereof . Contracts
mentioned herein in this section
include those made with the United States, under the Federal
Reclamation Act of June 17, 1902, and all acts amendatory thereof or
supplementary thereto, or any other act of Congress heretofore or
hereafter enacted permitting cooperation. Any such contract with the
United States or any department or agency thereof, or with any
private corporation organized under the laws of the United States, by
which the Mojave Water Agency, or any improvement district thereof,
incurs an indebtedness or liability exceeding in any year the income
and revenue for such that year shall
not be executed without the assent of two-thirds of the
qualifed qualified electors of the agency, or an
improvement district thereof, voting at a special election to be
held for that purpose , such . The
special election to shall be
called and held, so far as practicable, in the same manner as bond
elections for the agency. The exact form of such
the contract need not be available at the time of the
special election, but the (1) purpose of the contract; (2)
maximum amount of the indebtedness created thereby; (3) maximum term
of repayment, and (4) maximum interest rate on such indebtedness
all of the following shall be known and included
in the proposition or measure submitted to the qualified electors of
the agency, or an improvement district thereof, at such
the special election . :
(a) Purpose of the contract.
(b) Maximum amount of the indebtedness created by the contract.
(c) Maximum term of repayment.
(d) Maximum interest rate on the indebtedness created by the
contract.
SEC. 559. Section 21601 of the Public Contract Code is amended to
read:
21601. Any improvement or unit of work, when the cost, according
to the estimate of the engineer, will exceed five thousand dollars
($5,000), shall be done by contract and let to the lowest responsible
bidder or bidders as provided in this article. The board shall first
determine whether the contract shall be let as a single unit
, or divided into severable parts. The board shall
advertise for bids by three insertions in a daily newspaper of
general circulation , or by two insertions in a weekly
newspaper of general circulation , printed and published
in the agency, inviting sealed proposals for the construction or
performance of the improvement or work. The call for bids shall state
whether the work shall be performed in one unit or divided into
parts. The work may be let under a single contract or several
contracts, as stated in the call. The board shall require the
successful bidders to file with the board good and sufficient bonds
to be approved by the board conditioned upon the faithful performance
of the contract and upon payment of their claims for labor and
material. The bonds shall comply with Title 15 (commencing with
Section 3082) of Part 4 of Division 3 of the Civil Code. The board
may reject any and all bids and readvertise, or, by a two-thirds
vote, may elect to undertake the work by force account. In
the event If no proposals are received,
or the estimated cost of the work does not exceed five
thousand dollars ($5,000), or the work consists of channel
protection, maintenance work, or emergency work, the board of
supervisors may have the work done by force account without
advertising for bids. In case of an emergency, if notice
for bids to let contracts will not be given, the board shall comply
with Chapter 2.5 (commencing with Section 22050). The district may
purchase in the open market without advertising for bids, materials,
and supplies for use in any work, either under contract or by force
account.
SEC. 560. Section 2776 of the Public Resources Code is amended to
read:
2776. (a) No person who has obtained a
vested right to conduct surface mining operations prior to January 1,
1976, shall be required to secure a permit pursuant to this chapter
as long as the vested right continues and as long as no substantial
changes are made in the operation except in accordance with this
chapter. A person shall be deemed to have vested rights if, prior to
January 1, 1976, he or she the person
has, in good faith and in reliance upon a permit or other
authorization, if the permit or other authorization was required,
diligently commenced surface mining operations and incurred
substantial liabilities for work and materials necessary
therefor for the surface mining operations .
Expenses incurred in obtaining the enactment of an ordinance in
relation to a particular operation or the issuance of a permit shall
not be deemed liabilities for work or materials.
(b) The reclamination
reclamation plan required to be filed under subdivision
(b) of Section 2770, shall apply to operations conducted after
January 1, 1976, or to be conducted.
(c) Nothing in this chapter shall be
construed as requiring the filing of a reclamation plan for, or the
reclamation of, mined lands on which surface mining operations were
conducted prior to January 1, 1976.
SEC. 561. Section 4116 of the Public Resources Code is amended to
read:
4116. Any claim for damages arising against the state under
Section 4114 or 4115 shall be presented to the State Board
of Control California Victim Compensation and
Government Claims Board in accordance with Part 3 (commencing
with Section 900) and Part 4 (commencing with Section 940) of
Division 3.6 of Title 1 of the Government Code and , if
not covered by insurance , shall be payable only out of
funds appropriated by the Legislature for such
that purpose. If the state has elected to acquire
liability insurance , the State Board of Control
California Victim Compensation and Government Claims
Board may automatically deny any such
this claim.
SEC. 562. Section 4144 of the Public Resources Code is amended to
read:
4144. (a) Notwithstanding Section 4142, the director may, with
the approval of the Department of General Services, enter into a
cooperative agreement , for the purpose of preventing and
suppressing fires, with a city, county, special district, or
other political subdivision of the state , or
person, firm, association, or corporation for the purpose of
preventing and suppressing fires that requests an
agreement, under those terms and conditions that the director deems
wise.
(b) The director shall not enter into or renew a cooperative
agreement pursuant to this section under any of the following
circumstances:
(1) With any county that has assumed responsibility pursuant to
Section 4129.
(2) If the land to be protected is not in proximity to, nor within
lands classified by the board pursuant to Section 4125 as, a state
responsibility area. For the purposes of this paragraph, "proximity"
means within a distance from an existing facility that results in a
response time established by the board that is not longer than that
used by the department in meeting its state wild land fire protection
mission.
(3) The director determines that the agreement would significantly
reduce existing fire prevention and suppression service levels.
(4) The director determines, pursuant to the policy and standards
adopted by the board under Section 4143, that the agreement would
replicate services provided under an agreement made pursuant to
Section 4142.
(5) The director determines that the service area of a particular
station under the agreement is more appropriately served under an
agreement made pursuant to Section 4142.
(c) The cooperative agreement shall provide all of the following:
(1) The department shall ensure that a staffing level, mutually
agreeable to the parties to the agreement, is maintained on all fire
prevention and suppression vehicles.
(2) The personnel, equipment, and buildings utilized shall be
limited to those used to protect state responsibility areas. Whenever
the cooperative agreement provides for the employment of personnel
during the "nonfire season" nonfire season
who would be in addition to the personnel required for the
necessary operation and maintenance of equipment and buildings under
the jurisdiction of the director, the full salaries and all benefits
of the additional personnel shall be apportioned, as costs to the
city, county, special district, or other political subdivision of the
state, or person, firm, association, or corporation that contracts
with the department pursuant to the cooperative agreement for fire
protection.
(3) A cost apportionment between the state and the city, county,
special district, or other political subdivision of the state, or
person, firm, association, or corporation that contracts with the
state for fire protection that reasonably reflects cost
apportionments made pursuant to Section 4141 or 4142, except that the
contracting city, county, special district, other political
subdivision of the state, or contracting person, firm, association,
or corporation shall be apportioned the additional cost for extended
staff availability for 24-hour emergency response, for state
personnel assigned to staff fire engines at a rate determined
annually by the director, plus staff benefit costs attributable to
the apportionment, and total unplanned overtime pay. The department
shall recover its actual additional costs.
SEC. 563. Section 4516.6 of the Public Resources Code is amended
to read:
4516.6. (a) To provide for adequate public review and comment,
notwithstanding Section 4582.7, the director shall not approve a
timber harvesting plan in any county for which rules and regulations
have been adopted pursuant to Section 4516.5 or 4516.8 until 35 days
from the date of filing of the plan, and timber operations shall not
commence until five days from the date of approval of the plan. The
board may provide, by regulation, for those periods to be waived or
shortened by the department upon a determination, pursuant to
criteria and procedures established by the board, that the proposed
timber operations will cause no significant environmental damage or
threat to public health and safety or to the environment, or that the
timber operations are necessary to reduce such a
that threat. If the chairperson of the board of
supervisors of the county in which the proposed timber operations are
located notifies the director and the plan submitter that the county
intends to appeal the approval of the plan and that the county meets
the requirements for filing an appeal, no timber operations shall
occur until the final determination of the appeal. If the board of
supervisors determines not to appeal the approval of the plan, it
shall immediately notify the director and the plan submitter in
writing of that determination, and timber operations pursuant to the
plan may commence immediately.
(b) (1) The board of supervisors of the county for which rules and
regulations have been adopted pursuant to Section 4516.5 or 4516.8
may, not later than 10 days after approval of the plan by the
director, appeal that approval to the board, if the county has both
participated in the initial inspection of the plan area with the
director and participated in a multidisciplinary review of the plan.
(2) The board may establish procedures for filing the appeal and
may specify findings which that the
board of supervisors is required to make in filing the appeal to
demonstrate that a substantial issue is raised with respect to public
health and safety or the environment.
(c) The board shall grant to a county that meets the requirements
for filing an appeal an initial hearing to consider the county's
request for an appeal at the next regularly scheduled board meeting
following the receipt of the request.
(d) The board shall grant a a public hearing on
the appeal if it determines at an initial hearing pursuant to
subdivision (c) that the appeal raises substantial issues with
respect to public health and safety or the environment.
(e) (1) The board shall hold a public hearing on the appeal
granted pursuant to subdivision ( (d) within 30
days from the date of granting the hearing or at the next regularly
scheduled board meeting, whichever occurs first, or within a longer
period of time that is mutually agreed upon by the board, the county,
and the plan submitter. Upon conclusion of the hearing, the board
shall approve or deny the plan. The basis of the board's decision
shall be conformance with this section and the rules and regulations
of the board, including any rules or regulations enacted with respect
to the county pursuant to Section 4516.5 or 4516.8, and this
chapter. In denying a plan, the board may make findings that set
forth conditions under which it believes that the plan would have
been approved.
(2) The board may delegate conduct of the hearing and the decision
to a committee of three members to be appointed for that hearing by
the chairperson of the board. The committee shall consist of at least
two general public members of the board. The chairperson of the
board or the chairperson's designee shall conduct the hearing. The
decision of the committee shall have the full force and effect of a
decision of the full board.
(f) This section does not apply to timber operations on any land
area of less than three acres and which that
is not zoned for timberland production.
SEC. 564. Section 4602.6 of the Public Resources Code is amended
to read:
4602.6. (a) If a timber operator believes
that a forest officer lacked reasonable cause to issue or extend a
stop order pursuant to Section 4602.5, the timber operator may
present a claim to the State Board of Control
California Victim Compensation and Government Claims Board
pursuant to Part 3 (commencing with Section 900) of Division 3.6
of Title 1 of the Government Code for compensation and damages
resulting from the stopping of timber operations.
(b) If the board finds that the forest
officer lacked reasonable cause to issue or extend the stop order,
the board shall award a sum of not less than one hundred dollars
($100) nor more than one thousand dollars ($1,000) per day for each
day the order was in effect.
SEC. 565. Section 5006.48 of the Public Resources Code is amended
to read:
5006.48. (a) Notwithstanding any other provision of law, the
Director of General Services may acquire, on behalf of the state, a
fee or lesser right or interest in real and personal property in the
Counties of Alameda and San Joaquin located approximately 10 miles
east of the City of Livermore and commonly known as the Carnegie
Cycle Park. If the property is leased, the lease shall be for
such the term and for such
the consideration as
that is mutally mutually agreed
upon by and between the Director of General Services and the lessor,
and consented to by the Director of Parks and Recreation, and with
rent to be paid by the Department of Parks and Recreation.
(b) Any interest in property acquired pursuant to this section
shall be subject to the provisions of the Property
Acquisition Law (Part 11 (commencing with Section 15850) of Division
3 of Title 2 of the Government Code).
(c) Upon acquisition of the property, the Director of General
Services shall transfer jurisdiction over the property to the
Department of Parks and Recreation, which shall administer the
property as a unit of the state park system. The Department of Parks
and Recreation shall carry out a program in that unit of planning,
development, construction, maintenance, administration, and
conservation of trails and areas for the recreational use of
off-highway vehicles and for other related purposes of the state park
system. Areas for the recreational use of off-highway vehicles shall
be administered pursuant to Chapter 1.25 (commencing with Section
5090.01).
(d) The Director of General Services may offer, under competitive
bidding procedures, all or part of the property for lease if the
Director of Parks and Recreation determines at that time it is not
then needed for the purposes of the state park system and will not be
needed for the term of the lease to be offered. Any lease entered
into pursuant to this section shall be subject to Section 15862 of
the Government Code. Notwithstanding the provisions of
Section 15863 of the Government Code, all rent accruing
from any such that lease after
jurisdiction over the property is transferred to the Department of
Parks and Recreation pursuant to subdivision (c) shall be paid into
the State Treasury to the credit of the Off-Highway Vehicle Fund and
shall be available for expenditure only for the purposes specified in
subdivision (b) of Section 5090.61.
(e) Any fees or other returns collected by the Department of Parks
and Recreation in its administration of such
the unit referred to in subdivision (c) shall be
paid into the State Treasury to the credit of the Off-Highway Vehicle
Fund and shall be available for expenditure only for the purposes
specified in subdivision (b) of Section 5090.61.
SEC. 566. Section 5080.06 of the Public Resources Code is amended
to read:
5080.06. For any contract authorizing occupancy by the
concessionaire for a period of more than two years of any portion of
the state park system, the department shall prepare an invitation to
bid, which shall include a summary of the terms and conditions of the
concession sufficient to enable persons to bid solely on the basis
of rates to be paid to the state. The invitation to bid shall specify
the minimum acceptable rent, except in instances in which a minimum
acceptable rent cannot be ascertained because of the novelty or
uniqueness of the service or facility to be provided or in instances
in which the department has determined that a better return to the
state can be secured by not specifying a minimum acceptable rent.
Bids shall be made only on the basis of the invitition
invitation to bid.
SEC. 567. Section 5080.36 of the Public Resources Code is amended
to read:
5080.36. (a) Notwithstanding any provision of this article, the
department may enter into an operating agreement with a qualified
nonprofit organization for the development, improvement, restoration,
care, maintenance, administration, and control of El Presidio de
Santa Barbara State Historic Park. The agreement shall include, but
is not limited to, the following:
(1) The district superintendent for the department shall provide
liasion liais on with the
department, the nonprofit organization, and the public.
(2) The nonprofit organization shall annually submit a written
report to the department regarding its operating activities during
the prior year and shall make copies of the report available to the
public upon request. The report shall include a full accounting of
all revenues and expenditures for El Presidio de Santa Barbara State
Historic Park.
(3) All revenues received from El Presidio de Santa Barbara State
Historic Park shall be expended only for the care, maintenance,
operation, administration, improvement, or development of the unit.
(b) The district superintendent for the department shall,
following submittal of the annual report under subdivision (a), hold
a public meeting for discussion of the report and any operating
policies or procedures. Any recommendation resulting from the annual
public meeting shall be submitted by the district superintendent to
the director for review and approval.
(c) The general plan for El Presidio de Santa Barbara State
Historic Park shall, in addition to the requirements set forth in
Section 5002.2, specifically evaluate and define the manner in which
the unit is proposed to be operated. The general plan shall be
reviewed by the State Park and Recreation Commission for a
determination that the unit will be operated in a manner that
generally meets the standards followed by the department in its
operation of similar units, that enhances the general public use and
enjoyment of, and recreational and educational experiences at, the
unit, and that provides for the satisfactory management of park
resources.
(d) Whenever the department intends to enter into an operating
agreement with respect to El Presidio de Santa Barbara State Historic
Park, the department shall notify each Member of the Legislature in
whose district the unit is located of that intention.
SEC. 568. Section 5096.514 of the Public Resources Code is amended
to read:
5096.514. Not more than 10 working days after the close of escrow
for a major acquisition of conservation land by an acquisition
agency, the acquisition agency shall make available to the public all
of the following information, unless it is exempted
exempt from being disclosed pursuant to the
California Public Records Act (Chapter 3.5 (commencing with Section
6250) of Division 7 of Title 1 of the Government Code):
(a) A copy of the appraisal for the conservation land approved by
the Department of General Services, and from which fair market value
was determined.
(b) A copy of all other documents relevant to the purchase of the
conservation land, including, but not limited to, environmental
assessments or other documents not already disclosed pursuant to
Section 5096.513.
SEC. 569. Section 5141.1 of the Public Resources Code is amended
to read:
5141.1. Any such A lease or
sublease entered into pursuant to subdivision (c) of Section 5140
shall provide that the net revenue, if any, from the operation and
use of the facilities, remaining after the payment of any expenses
and costs for maintenance, operation , or management,
payment of interest and principal upon any loans made to the
nonprofit corporation or association for purposes of maintenance,
operation , or management, or any other expenses, and
after providing maintenance and operation reserves, shall be paid at
least annually to the county. Notwithstanding the provisions
of Section 231 of the Revenue and Taxation Code, all
such buildings, structures , and
facilities, together with the land upon which they are situated, and
so much of the surrounding land as is required for their use and
occupation, operated by a nonprofit association or corporation
pursuant to any such the operating
lease or sublease, shall be exempt from taxation within the meaning
of "charitable purposes" in Section 1c
subdivision (b) of Section 4 of Article XIII of the
California Constitution of California .
Any such The lease or sublease shall
provide that, upon its expiration and after payment or discharge of
its indebtedness and liabilities, all
of the assets of the nonprofit association or corporation
shall be transferred to the county.
SEC. 570. Section 5366 of the Public Resources Code is amended to
read:
5366. The provisions of the State Contract Act
(Part 2 (commencing with Section 10100) of Division 2 of the
Public Contract Code) and the provisions of Division
2, Part 7 , (commencing with
Section 1720) of Division 2 of the Labor Code shall be
applicable to this article.
SEC. 571. Section 5671 of the Public Resources Code is amended to
read:
5671. The Legislature hereby finds and declares as follows:
(a) There is a great, measurable demand for the provision of
increased fishing opportunities in the major metropolitan areas of
California.
(b) There is a high concentration of urban social and economic
problems in California's major metropolitan areas which
that can be partially alleviated by the
increased recreational activities and supplemental food sources
afforded by fishing opportunities.
(c) In view of the foreging foregoing
, the Legislature declares that an active, cooperative, and
funded urban fishing program should be implemented without delay.
SEC. 572. Section 6314 of the Public Resources Code is amended to
read:
6314. (a) Any A person who removes,
without authorization from the commission, or any
a person who destroys or damages , an
archaeological site or any a historic
resource , which that is located on or
in the submerged lands of, and which that
is the property of, the state, is guilty of a misdemeanor
and is , which shall be punishable by
imprisonment in the a county jail not
to exceed six months or , a fine not to
exceed five thousand dollars ($5,000), or by both
that imprisonment and fine .
(b) In addition, the commission , or, at its
request, the Attorney General or a district attorney in whose
jurisdiction the violation occurred, may seek civil damages for the
damage, loss, or destruction of an abandoned
shipwrecks shipwreck , their
its gear or cargo, or any an
archaeological site or historic resource located on or in submerged
lands of the state. Any A vessel used
to damage, destroy, or cause the loss of , any such
the shipwreck or ,
archaeological site , or historic resource is subject to a
proceeding in rem by the state for the costs and damages resulting
from that damage, destruction, or loss. Enforcement may include,
where appropriate, a restraining order or injunctive relief to
restrain and enjoin violations or threatened violations of Section
6309, Section 6313, or this section and for the return of items taken
in violation of these sections.
(c) Any An artifact, an
object, or material which that has been
removed from a state submerged archaeological site or submerged
historic resource, as specified in subdivision (a), and
which that is found in any
a watercraft occupied by persons who do not hold a permit
as required by Section 6309 or Section 6313 or
other reasonable evidence of legal possession , is prima
facia facie evidence of a
violation of that section and the artifact, object, or material may
be confiscated by any a state, federal,
or local law enforcement officer. Artifacts, objects, or
materials An artifact, an object, or material
confiscated under pursuant to this
section shall be returned to the person claiming ownership ,
within 30 days of their its
confiscation, unless a prosecuting attorney determines that
they are it is required as evidence in the
prosecution of a criminal violation.
(d) In any a case in which a
district attorney, at the request of the commission, or with its
concurrence, enforces subdivision (a), the commission shall,
notwithstanding Section 1463 of the Penal Code, be entitled to an
equal division of the fine imposed.
(e) All state and local law enforcement agencies and officers are
directed to assist in enforcing this section, and are requested to
work with and seek the cooperation of federal law enforcement
agencies, including deputizing federal officers when appropriate.
SEC. 573. Section 6925.2 of the Public Resources Code is amended
to read:
6925.2. Notwithstanding any other provision of this article, the
commission may, at its discretion, issue a lease to the first
qualified applicant for a parcel of less than 640 acres if the
geothermal resources to be developed on this parcel are utilized
entirely for purposes other than electricity generation. The terms,
conditions, rentals, royalities royal
ties , drilling requirements, and development programs of
such those leases shall be as
determined by the commission. If there is an existing geothermal
resources lease or permit for such the
land, the applicant shall obtain the permission of the lessee or
permittee.
SEC. 574. Section 8710 of the Public Resources Code is amended to
read:
8710. Actions An action under this
division are is not subject to the
California Environmental Quality Act (Division 13 (commencing with
Section 21000) 21000)) , the
Subdivision Map Act (Division 2 (commencing with Section 66410) of
Title 7 of the Government Code), or the Property Acquisition Law
(Part 11 (commencing with Section 15850) of Division 3 of Title 2 of
the Government Code).
SEC. 575. Section 9084 of the Public Resources Code is amended to
read:
9084. (a) Subject to the availability of funds and any
limitations imposed by this division, the department may provide
grants to resource conservation districts for the purpose of
assisting the districts in carrying out any work that they are
authorized to undertake, including, but not limited to, grants for
watershed projects.
(b) (1) To qualify for a grant under subdivision (a), a resource
conservation district may, until January 1, 2000, and
shall , on and after January 1, 2000, do
all of the following:
(A) Prepare an annual and a long-range work plan pursuant to
Section 9413. The long-range work plan shall reflect input from local
agencies and organizations regarding land use and resource
conservation goals.
(B) Convene regular meetings in accordance with the open meeting
requirements of Chapter 9 (commencing with Section 54950) of Part 1
of Division 2 of Title 5 of the Government Code and the requirements
of this division.
(C) Secure sources of local support funding, which may include
funding from in-kind contributions and services.
(2) A resource conservation district seeking a grant pursuant to
this section may, until January 1, 2000, and shall
, on and after January 1, 2000, submit to the
department a grant proposal that includes, but is not limited to, all
of the following information:
(A) A description of the work for which the grant is sought.
(B) An explanation of the public or private need for the work,
including, but not limited to, any revelant
relevant information demonstrating the urgency of the project.
(C) An itemized summary of the projected cost of the work.
(D) An estimate of the amount of the projected costs of the work
that will be covered by local support funding, including funding from
in-kind contributions or services.
(3) To qualify for a grant awarded pursuant to this section, a
resource conservation district may, until January 1, 2000,
and shall , on and after January 1, 2000,
be required to provide at least a 25 percent local match of
funding, of which 40 percent of that amount shall be provided in
cash. The department shall give preference in the awarding of grants
to those districts that, among other things, provide a greater
percentage of local match funding than the minimum required by this
paragraph.
(4) A resource conservation district that receives a grant awarded
under this section may, until January 1, 2000, and
shall , on and after January 1, 2000,
provide the department with an informal accounting summary that
describes how the grant money was spent in accordance with the
purposes and conditions of the grant.
(5) Prior to January 1, 2000, the department may, in making grants
to a district pursuant to subdivision (a), take into consideration
whether, and to what extent, the district has chosen to exercise the
authority provided in paragraphs (1) to (4), inclusive.
SEC. 576. Section 21080.24 of the Public Resources Code is amended
to read:
21080.24. (a) This division does not apply
to the issuance, modification, amendment, or renewal of any
a permit by an air pollution control district or
air quality management district pursuant to Title V, as defined in
Section 39053.3 of the Health and Safety Code, or pursuant to a
district Title V program established under
pursuant to Sections 42301.10, 42301.11, and 42301.12 of the
Health and Safety Code, unless the issuance, modification, amendment,
or renewal authorizes a physical or operational change to a source
or facility.
(b) Nothing in this section is intended to result in the
application of this division to any a
physical or operational change which that
, prior to January 1, 1995, was not subject to this division.
SEC. 577. Section 21151.1 of the Public Resources Code is amended
to read:
21151.1. (a) Notwithstanding paragraph (6) of subdivision (b) of
Section 21080, or Section 21080.5 or 21084, or any other provision of
law, except as provided in this section, a lead agency shall prepare
or cause to be prepared by contract, and certify the completion of,
an environmental impact report or, if appropriate, a modification,
addendum, or supplement to an existing environmental impact report,
for any a project involving any of the
following:
(1) (A) The burning of municipal wastes, hazardous waste, or
refuse-derived fuel, including, but not limited to, tires, if the
project is either of the following:
(i) The construction of a new facility.
(ii) The expansion of an existing facility that burns hazardous
waste that would increase its permitted capacity by more than 10
percent.
(B) This paragraph does not apply to any a
project exclusively burning hazardous waste, for which a final
determination under Section 21080.1 has been made prior to July 14,
1989.
(2) The initial issuance of a hazardous waste facilities permit to
a land disposal facility, as defined in subdivision (d) of Section
25199.1 of the Health and Safety Code.
(3) The initial issuance of a hazardous waste facilities permit
pursuant to Section 25200 of the Health and Safety Code to an offsite
large treatment facility, as defined pursuant to subdivision (d) of
Section 25205.1 of the Health and Safety Code.
(4) A base reuse plan as defined in Section 21083.8 or
21083.8.1. The Legislature hereby finds that no
reimbursement is required pursuant to Section 6 of Article XIII B of
the California Constitution for an environmental impact report for a
base reuse plan if an environmental impact report is otherwise
required for that base reuse plan pursuant to any other provision of
this division.
(b) For purposes of clause (ii) of subparagraph (A) of
subparagraph (B) of paragraph (1) of subdivision (a), the
amount of expansion of an existing facility shall be calculated by
comparing the proposed facility capacity with whichever of the
following is applicable:
(1) The facility capacity authorized in the facility's hazardous
waste facilities permit pursuant to Section 25200 of the Health and
Safety Code or its grant of interim status pursuant to Section
25200.5 of the Health and Safety Code, or the facility capacity
authorized in any a state or local
agency permit allowing the construction or operation of a facility
for the burning of hazardous waste, granted before January 1, 1990.
(2) The facility capacity authorized in the facility's original
hazardous waste facilities permit, grant of interim status, or
any a state or local agency permit
allowing the construction or operation of a facility for the burning
of hazardous waste, granted on or after January 1, 1990.
(c) For purposes of paragraphs (2) and (3) of subdivision (a), the
initial issuance of a hazardous waste facilities permit does not
include the issuance of a closure or postclosure permit pursuant to
Chapter 6.5 (commencing with Section 25100) of Division 20 of the
Health and Safety Code.
(d) Paragraph (1) of subdivision (a) does not apply to
any a project that does any of the following:
(1) Exclusively burns digester gas produced from manure or any
other solid or semisolid animal waste.
(2) Exclusively burns methane gas produced from a disposal site,
as defined in Section 40122, that is used only for the disposal of
solid waste, as defined in Section 40191.
(3) Exclusively burns forest, agricultural, wood, or other biomass
wastes.
(4) Exclusively burns hazardous waste in an incineration unit that
is transportable and that is either at a site for not longer than
three years or is part of a remedial or removal action. For purposes
of this paragraph, "transportable" means any equipment that performs
a "treatment" as defined in Section 66216 of Title 22 of the
California Code of Regulations, and that is transported on a vehicle
as defined in Section 66230 of Title 22 of the California Code of
Regulations , as those sections read on June 1, 1991 .
(5) Exclusively burns refinery waste in a flare on the site of
generation.
(6) Exclusively burns in a flare methane gas produced at a
municipal sewage treatment plant.
(7) Exclusively burns hazardous waste, or exclusively burns
hazardous waste as a supplemental fuel, as part of a research,
development, or demonstration project that, consistent with federal
regulations implementing the Resource Conservation and Recovery Act
of 1976, as amended (42 U.S.C. Sec. 6901 et seq.), has been
determined to be innovative and experimental by the Department of
Toxic Substances Control and that is limited in type and quantity of
waste to that necessary to determine the efficacy and performance
capabilities of the technology or process ; provided,
however, that any . However, a facility that
operated as a research, development, or demonstration project and for
which an application is thereafter submitted for a hazardous waste
facility permit for operation other than as a research, development,
or demonstration project shall be considered a new facility for the
burning of hazardous waste and shall be subject to subdivision (a) of
Section 21151.1.
(8) Exclusively burns soils contaminated only with petroleum fuels
or the vapors from these soils.
(9) Exclusively treats less than 3,000 pounds of hazardous waste
per day in a thermal processing unit operated in the absence of open
flame, and submits a worst-case health risk assessment of the
technology to the Department of Toxic Substances Control for review
and distribution to the interested public. This assessment shall be
prepared in accordance with guidelines set forth in the Air Toxics
Assessment Manual of the California Air Pollution Control Officers
Association.
(10) Exclusively burns less than 1,200 pounds per day of medical
waste, as defined in Section 117690 of the Health and Safety Code, on
hospital sites.
(11) Exclusively burns chemicals and fuels as part of firefighter
training.
(12) Exclusively conducts open burns of explosives subject to the
requirements of the air pollution control district or air quality
management district and in compliance with OSHA and Cal-OSHA
regulations.
(13) Exclusively conducts onsite burning of less than 3,000 pounds
per day of fumes directly from a manufacturing or commercial
process.
(14) Exclusively conducts onsite burning of hazardous waste in an
industrial furnace that recovers hydrogen chloride from the flue gas
if the hydrogen chloride is subsequently sold, distributed in
commerce, or used in a manufacturing process at the site where the
hydrogen chloride is recovered, and the burning is in compliance with
the requirements of the air pollution control district or air
quality management district and the Department of Toxic Substances
Control.
(e) Paragraph (1) of subdivision (a) does not apply to
any a project for which the State Energy
Resources Conservation and Development Commission has assumed
jurisdiction under Chapter 6 (commencing with Section 25500) of
Division 15.
(f) Paragraphs (2) and (3) of subdivision (a) shall
do not apply if the facility only manages
hazardous waste that is identified or listed pursuant to Section
25140 or 25141 of the Health and Safety Code on
or after January 1, 1992, but not before that date, or only conducts
activities that are regulated pursuant to Chapter 6.5 (commencing
with Section 25100) of Division 20 of the Health and Safety Code on
or after January 1, 1992, but not before that date.
(g) This section does not exempt any a
project from any other requirement of this division.
(h) For purposes of this section, offsite facility means a
facility that serves more than one generator of hazardous waste.
SEC. 578. Section 21167.1 of the Public Resources Code is amended
to read:
21167.1. (a) In all actions or proceedings brought pursuant to
Sections 21167, 21168, and 21168.5, including the hearing of an
action or proceeding on appeal from a decision of a lower court, all
courts in which the action or proceeding is pending shall give the
action or proceeding preference over all other civil actions, in the
matter of setting the action or proceeding for hearing or trial, and
in hearing or trying the action or proceeding, so that the action or
proceeding shall be quickly heard and determined. The court shall
regulate the briefing schedule so that, to the extent feasible, the
court shall commence hearings on an appeal within one year of the
date of the filing of the appeal.
(b) To ensure that actions or proceedings brought pursuant to
Sections 21167, 21168, and 21168.5 may be quickly heard and
determined in the lower courts, the superior courts in all counties
with a population of more than 200,000 shall designate one or more
judges to develop expertise in this division and related land use and
environmental laws, so that those judges will be available to hear,
and quickly resolve, actions or proceedings brought pursuant to
Sections 21167, 21168, and 21168.5.
(c) In any an action or proceeding
filed pursuant to this chapter that is joined with any other cause of
action, the court, upon a motion by any party, may grant severance
of the actions. In determining whether to grant severance, the court
shall consider such as matters as
judicial economy, administrative economy, and prejudice to any party.
SEC. 579. Section 25135 of the Public Resources Code is amended to
read:
25135. "Conversion" means the processes by which residue is
converted to a more usable energy form, including, but not limited
to, combustion, anerobic anaerobic
digestion, and pyrolysis, and is used for heating, process heat
applications, and electric power generation.
SEC. 580. Section 25302.5 of the Public Resources Code is amended
to read:
25302.5. (a) As part of each integrated energy policy report
required pursuant to Section 25302, each entity that serves or plans
to serve electricity to retail customers, including, but not limited
to, electrical corporations, nonutility electric service providers,
community choice aggregators, and local publicly owned electric
utilities, shall provide the commission with its forecast of both of
the following:
(1) The amount of its forecasted load that may be lost or added by
any of the following:
(A) A community choice aggregator.
(B) An existing local publicly owned electric utility.
(C) A newly formed local publicly owned electric utility.
(2) Load that will be served by an electric service provider.
(b) The commission shall perform an assessment in the service
territory of each electrical corporation of the loss or addition of
load described in this section and submit the results of the
assessment to the Public Utilities Commission.
(c) Notwithstanding subdivision (a), the commission may exempt
from the forecasting requirements in that subdivision , a
local publicly owned electric utility that is not planning to acquire
additional load beyond its existing exclusive service territory
within the forecast period provided by the commission pursuant to
Section 25303.
(d) For purposes of this section, the following terms have the
following meanings:
(1) "Community choice aggregator" means any "community choice
aggregator" as defined in Section 331.1 of the Public Utilities Code.
(2) "Electrical corporation" means any "electrical corporation" as
defined in Section 218 of the Public Utilities Code.
(3) "Electric service provider" means any "electric service
provider" as defined in Section 218.3 of the Public Utilities Code.
(4) "Local publicly owned electric utility" means any "local
publicly owned electric utility" as defined in Section 9604 of the
Public Utilities Code.
SEC. 581. Section 26032 of the Public Resources Code is amended to
read:
26032. The authority may enter into contracts of sale with any
participating party convering co
vering any project financed by the authority. The purchase
price pursuant to such the contract of
sale shall be treated in substantially the same manner and shall be
at least sufficient to provide funds for all the purposes provided in
Section 26031 and may be paid in installments, together with
interest on the unpaid balance, or otherwise, as may be mutually
agreed and set forth in such the
contract of sale. All payments received by the authority under any
installment sales or conditional sales contract shall be applied by
the authority substantially in the same manner as
hereinabove provided in Section 26031 in the case of lease
payments or rental charges received by the authority.
SEC. 582. Section 26569.5 of the Public Resources Code is amended
to read:
26569.5. A district formed under this chapter shall be comprised
of an area within a local agency which that
is specially benefited by, and is subject to a special
assessment to pay of the cost of, an improvement.
The district is not an entity separate and distinct from the local
agency within which it is formed.
SEC. 583. Section 29305 of the Public Resources Code is amended to
read:
29305. The Wildlife Conservation Board shall acquire title to, or
a lesser right or interest in, in such land or
water as that the board determines is
appropriate for the purposes of the protection plan ; and,
when . When authorized by the board, the
department shall construct such facilities
as that are suitable for the purpose
for which such the acquisitions were
made. Such The acquisitions shall be
made in accordance with the Wildlife Conservation Law of 1947
(Chapter 4 (commencing with Section 1300
1300) of Division 2 of the Fish and Game Code) and the
criteria specified in Section 29009 of this division
code .
SEC. 584. Section 29735 of the Public Resources Code is amended to
read:
29735. There is hereby created the Delta Protection Commission
, consisting of 19 members as follows:
(a) One member of the board of supervisors of each of the five
counties within the delta whose supervisorial district is within the
primary zone shall be appointed by the board of supervisors of the
county.
(b) Three elected city council members shall be selected and
appointed by city selection committees, from regional and area
councils of government, one in each of the following areas:
(1) One from the north delta, consisting of the Counties of Yolo
and Sacramento.
(2) One from the south delta, consisting of the County of San
Joaquin.
(3) One from the west delta, consisting of the Counties of Contra
Costa and Solano.
(c) (1) One member each from the board of directors of five
different reclamation districts which that
are located within the primary zone who are residents of the
delta, and who are elected by the trustees of reclamations
the reclamation districts within the following
areas:
(A) Two members from the area of the North Delta Water Agency as
described in Section 9.1 of the North Delta Water Agency Act (Chapter
283 of the Statutes of 1973), provided at least one member is also a
member of the Delta Citizens Municipal Advisory Council.
(B) One member from the west delta consisting of the area of
Contra Costa County within the delta.
(C) One member from the area of the Central Delta Water Agency as
described in Section 9.1 of the Central Delta Water Agency Act
(Chapter 1133 of the Statutes of 1973).
(D) One member from the area of the South Delta Water Agency as
described in Section 9.1 of the South Delta Water Agency Act (Chapter
1089 of the Statutes of 1973).
(2) Each reclamation district may nominate one director to be a
member. The member from an area shall be selected from among the
nominees by a majority vote of the reclamation districts in that
area. For purposes of this section, each reclamation district shall
have one vote. The north delta area shall conduct separate votes to
select each of its two members.
(d) The Director of Parks and Recreation or the director's sole
designee.
(e) The Director of Fish and Game or the director's sole designee.
(f) The Director Secretary of Food
and Agriculture or the director's secretary's
sole designee.
(g) The executive officer of the State Lands Commission or the
executive officer's sole designee.
(h) The Director of Boating and Waterways or the director's sole
designee.
(i) The Director of Water Resources or the director's sole
designee.
SEC. 585. Section 30118.5 of the Public Resources Code is amended
to read:
30118.5. "Special treatment area" means an identifiable and
geographically bounded forested area within the coastal zone that
constitute constitutes a significant
habitat area, area of special scenic significance, and any land where
logging activities could adversely effect
affect a public recreation area or the biological productivity
of any wetland, estuary, or stream especially valuable because of its
role in a coastal ecosytem ecosystem .
SEC. 586. Section 30166 of the Public Resources Code is
amended to read:
30166. In Los Angeles County:
(a) In three locations within the Santa Monica Mountains, the
boundary is moved seaward to the five-mile limit described in Section
30103 and as specifically shown on maps 22, 23, and 24.
(b) In the Temescal Canyon watershed in the City of Los Angeles,
all lands owned or controlled by the Presbyterian Synod, the
University of California, the Los Angeles County Sanitation District,
and the Los Angeles Unified School District are added.
(c) In the Cities of Los Angeles and El Segundo , the
areas east of Vista del Mar that include the Scattergood Steam Plant,
the Hyperion Sewage Treatment Plant, and portions of an oil refinery
are excluded as specifically shown on map 25. In adopting this
boundary change, the Legislature specifically reaffirms the existing
location of the coastal zone boundary in the Venice area of the City
of Los Angeles.
(d) In the City of Manhattan Beach , approximately 140
acres, and in the City of Hermosa Beach , approximately
170 acres, are excluded as specifically shown on map
maps 25 and 26.
(e) In the City of Palos Verdes Estates, approximately 95 acres
landward of Paseo del Mar are excluded as specifically shown on map
26.
(f) In the City of Long Beach , the area near Colorado
Lagoon is excluded as specifically shown on map 27.
(g) In the City of Long Beach , the area commencing at
the intersection of the existing coastal zone boundary at Colorado
Street and Pacific Coast Highway, thence southerly along Pacific
Coast Highway to the intersection of Loynes Drive, thence easterly
along Loynes Drive to the intersection of Los Cerritos Channel,
thence northerly along Los Cerritos Channel to the existing coastal
zone boundary, is excluded as specifically shown on map 27A.
SEC. 587. Section 30170 of the Public Resources Code is amended to
read:
30170. In San Diego County:
(a) In the City of Oceanside, approximately 500 acres are excluded
as specifically shown on maps 30A and 31.
(b) In the City of Carlsbad, approximately 180 acres in the
downtown area, except for the Elm Street corridor, are excluded as
specifically shown on map 31.
(c) In the City of Carlsbad , the area lying north of
the Palomar Airport as generally shown on maps 31 and 32 and as
specifically described in this subdivision is excluded.
Those portions of lots "F" and "G" of Rancho Agua Hedionda, part
in the City of Carlsbad and part in the unincorporated area of the
County of San Diego, State of California, according to the partition
map thereof No. 823, filed in the office of the county recorder of
such that county, November 16, 1896,
described as follows:
Commencing at point 1 of said lot "F" as shown on said map; thence
along the boundary line of said lot "F" south 25* 33' 56″
east, 229.00 feet to point 23 of said lot "F" and south 54* 40 '
19″ east, 1347.00 feet; thence leaving said boundary line
south 35* 19' 44″ west, 41.28 feet to the true point of
beginning, which point is the true point of beginning, of the land
described in deed to Japatul Corporation recorded December 8, 1975,
at recorder's file/page No. 345107 of official records to said
county; thence along the boundary line of said land south 35* 19'
44″ west, 2216.46 feet and north 53* 02' 49″ west,
1214.69 feet to the northeast corner of the land described in deed to
Japatul Corporation recorded December 8, 1975, at recorder's
file/page No. 345103 of said official records; thence along the
boundary lines of said land as follows: West, 1550 feet, more or
less, to the boundary of said lot "F"; south 00* 12' 00″ west,
550 feet, more or less, to point 5 of said lot "F"; south 10* 25'
10″ east along a straight line between said point 5 and point
14 of said lot "F", "F," to point 14 of
said lot "F" : ; thence along the
boundary of said lot "F" south 52* 15' 45″ east (record south
51* 00'N 00″ east) 1860.74 feet more or less to the most
westerly corner of the land conveyed to James L. Hieatt, et ux, by
deed recorded June 11, 1913, in Book 617, page 54 of deed, records of
said county; thence along the northwesterly and northeasterly
boundary of Hieatt's land as follows: North 25* 00' 00″ east,
594.00 feet and south 52* 15' 45″ east (record south 51* 00'N
00″ east per deed) 1348.61 feet to a point of intersection with
the northerly line of Palomar County Airport, said point being on
the boundary of the land conveyed to Japatul Corporation by deed
recorded December 8, 1975, at recorder's file/page No. 345107 of said
official records; thence along said boundary as follows: North 79 *
10' 00″ east, 4052.22 feet north 10* 50' 00″ west, 500.00
feet; north 79* 10' 00″ east 262.00 feet, south 10* 50'
00″ east, 500.00 feet; north 79* 10' 00″ east, 1005 feet,
more or less, to the westerly line of the land conveyed to the
County of San Diego by deed recorded May 28, 1970, at recorder's
file/page No. 93075 of said official records; thence continuing along
the boundary of last said Japatul Corporation's land north 38*N 42'
44″ west, 2510.58 feet to the beginning of a tangent 1845.00
foot radius curve concave northeasterly; along the arc of said curve
through a central angle of 14* 25' 52″ a distance of 464.70
feet to a point of the southerly boundary of the land allotted to
Thalia Kelly Considine, et al . , by partial final
judgment in partition, recorded January 18, 1963, at recorder's
file/page No. 11643 of said official records; thence continuing along
last said Japatul Corporation's land south 67* 50' 28″ west,
1392.80 feet north 33* 08' 52″ west, 915.12 feet and north 00*N
30' 53″ west, 1290.37 feet to the southerly line of said land
conveyed to the County of San Diego, being also the northerly line of
last said Japatul Corporation's land; thence along said common line
north 74 * 57' 25″ west, 427.67 feet to the beginning of a
tangent 2045.00 foot radius curve concave northerly; and westerly
along the arc of said curve through a central angle of 16* 59'
24″, a distance of 606.41 feet to the true point of beginning.
And those properties known as assessors parcel Nos. 212-020-08,
212-020-22, and 212-020-23.
Excepting therefrom, that portion, if any, conveyed to the County
of San Diego, by quitclaim deed recorded January 12, 1977, at
recorder's file/page No. 012820 of said official records.
No development may occur in the area described in this subdivision
until a plan for drainage of the parcel to be developed has been
approved by the local government having jurisdiction over the area
after consultation with the commission and the Department of Fish and
Game. The plan shall assure that no detrimental increase occurs in
runoff of water from the parcel to be developed and shall require
that the facilities necessary to implement the plan are installed as
part of the development.
(d) In the City of Carlsbad and adjacent unincorporated areas,
approximately 600 acres consisting of the Palomar Airport and an
adjoining industrial park are excluded as specifically shown on maps
31 and 32.
(e) An area consisting of approximately 333 acres lying west and
south of the Palomar Airport and bounded on the south by Palomar
Airport Road is excluded as specifically shown on maps 31 and 32.
No development may occur in the area described in this subdivision
until a plan for drainage of the parcel to be developed has been
approved by the local government having jurisdiction over the area
after consultation with the commission and the Department of Fish and
Game. The plan shall assure that no detrimental increase occurs in
runoff of water from the parcel to be developed and shall require
that the facilities necessary to implement the plan are installed as
part of the development.
(f) On or before October 1, 1980, the commission shall, after
public hearing and in consultation with the City of Carlsbad,
prepare, approve, and adopt a local coastal program for the following
parcels in the vicinity of Batiquitos Lagoon within the City of
Carlsbad: lands owned by Rancho La Costa, a registered limited
partnership, lands (consisting of approximately 80 acres) owned by
Standard Pacific of San Diego, Inc., that were conveyed by Rancho La
Costa on October 8, 1977, and lands owned by the Occidental Petroleum
Company. Such Those parcels shall be
determined by ownership as of September 12, 1979. As used in this
subdivision, "parcels" means the parcels identified in this
paragraph. The local coastal program required by this subdivision
shall include all of the following elements:
(1) Protection of agricultural lands and uses to the extent
feasible.
(2) Minimization of adverse impacts from sedimentation.
(3) Protection of feasible public recreational opportunities.
(4) Provision for economically feasible development consistent
with the three elements specified in this subdivision.
The local coastal program required by this subdivision shall,
after adoption by the commission, be deemed certified and shall for
all purposes of this division constitute certified local coastal
program segments for those parcels in the City of Carlsbad. The
segments of the city's local coastal program for those parcels may be
amended pursuant to the provisions of this division relating to the
amendment of local coastal programs. In addition, until such
time as (i) the City of Carlsbad adopts or enacts the
implementing actions contained in any such
the local coastal program, or (ii) other statutory provisions
provide alternately for the adoption, certification, and
implementation of a local coastal program for those parcels, the
local coastal program required by this subdivision may also be
amended by the commission at the request of the owner of any of those
parcels. For administrative purposes, the commission may group these
requests in order to schedule them for consideration at a single
commission hearing ; provided, however, that
. However, the commission shall schedule these requests for
consideration at least once during each four-month period, beginning
January 1, 1982. After either of these events occur, however, these
property owners shall no longer be eligible to request the commission
to amend the local coastal program.
If the commission fails to adopt such a
local coastal program within the time limits specified in this
subdivision, those parcels shall be excluded from the coastal zone
and shall no longer be subject to the provisions of
this division. It is the intent of the Legislature in
enacting this subdivision that a procedure to expedite the
preparation and adoption of a local coastal program for those parcels
be established so that the public and affected property owners know
as soon as possible what the permissible uses of such
those lands are.
(g) In the vicinity of the intersection of Del Mar Heights Road
and the San Diego Freeway, approximately 250 acres are excluded as
specifically shown on map 33.
(h) In the vicinity of the intersection of Carmel Valley Road and
the San Diego Freeway, approximately 45 acres are added as
specifically shown on map 33.
In the City of San Diego, the Carmel Valley area consisting of
approximately 1,400 acres as shown on map 33 which
that has been placed on file with the Secretary of State
on January 23, 1980, shall be excluded from the coastal zone after
the City of San Diego submits, and the commission certifies, a
drainage plan and a transportation plan for the area. The city shall
implement and enforce the certified drainage and transportation
plans. Any amendments or changes to the underlying land use plan for
the area that affects drainage, or to either the certified drainage
or transportation plan, shall be reviewed and processed in the same
manner as an amendment of a certified local coastal program pursuant
to Section 30514. Any land use not in conformance with the certified
drainage and transportation plans may be appealed to the commission
pursuant to the appeals procedure as provided by Chapter 7
(commencing with Section 30600). The drainage plan and any amendments
thereto shall be prepared after consultation with the Department of
Fish and Game and shall ensure that problems resulting from water
runoff, sedimentation, and siltation are adequately identified and
resolved.
(i) Near the head of the south branch of Los Penasquitos Canyon,
the boundary is moved seaward to the five-mile limit as described in
Section 30103 and as specifically shown on map 33.
(j) In the City of San Diego, approximately 1,855 acres known as
the Mount Soledad and La Jolla Mesa areas are added as specifically
shown on map 34 ; provided, however, that .
However, on or before February 29, 1980, and pursuant to either
subdivision (d) of Section 30610 or Section 30610.5, the commission
shall exclude from coastal development permit requirements any
single-family residence within the area specified in this
subdivision. No coastal development permit shall be required for any
improvement, maintenance activity, relocation, or reasonable
expansion of any commercial radio or television transmission
facilities within the area specified in this subdivision unless
any such the proposed activity could
result in a significant change in the density or intensity of use in
such the area or could have a
significant adverse impact on highly scenic resources of public
importance ; provided, however, that .
However, no prior review by the commission of any such
this activity shall be required.
(k) In the City of San Diego, approximately 30 acres known as the
Famosa Slough is added as specifically shown on maps 34 and 35.
SEC. 588. Section 30171.2 of the Public Resources Code is amended
to read:
30171.2. (a) Except as provided in subdivision (b), on and after
January 1, 1985, no agricultural conversion fees may be levied or
collected under the agricultural subsidy program provided in the
local coastal program of the City of Carlsbad which
that was adopted and certified pursuant to
Section 30171. All other provisions of that program shall continue to
be operative, including the right to develop designated areas as
provided in the program.
(b) This section shall not affect any right or obligation under
any agreement or contract entered into prior to January 1, 1985,
pursuant to that agricultural subsidy program, including the payment
of any fees and the right of development in accordance with the
provisions of any such the agreement or
contract. As to these properties, the agricultural subsidy fees in
existence as of December 31, 1984, shall be paid and allocated within
the City of Carlsbad, or on projects outside the city which
that benefit agricultural programs within the
city, in accordance with the provisions of the agricultural subsidy
program as it existed on September 30, 1984.
(c) Any agricultural conversion fees collected pursuant to the
agricultural subsidy program and not deposited in the agricultural
improvement fund in accordance with the local coastal program or
which that have not been expended in
the form of agricultural subsidies assigned to landowners by the
local coastal program land use policy plan on January 1, 1985, shall
be used by the State Board of Control
California Victim Compensation and Government Claims Board to
reimburse the party which that paid the
fees if no agreements or contracts have been entered into or to the
original parties to the agreements or contracts referred to in
subdivision (b) in proportion to the amount of fees paid by the
parties. However, if the property subject to the fee was under option
at the time that the original agreement or contract was entered into
and the optionee was a party to the agricultural subsidy agreement,
payments allocable to that property shall be paid to the optionee in
the event the optionee has exercised the option. Reimbursements under
this section shall be paid within 90 days after January 1, 1985, or
payment of the fee, whichever occurs later, and only after waiver by
the party being reimbursed of any potential legal rights resulting
from enactment of this section.
(d) (1) Any person entitled to reimbursement
of fees under subdivision (c) shall file a claim with the
State Board of Control California Victim Compensation
and Government Claims Board, which shall determine the validity
of the claim and pay that person a pro rata share based on the
relative amounts of fees paid under the local coastal program or any
agreement or contract entered pursuant thereto.
(2) There is hereby appropriated to the
State Board of Control California Victim
Compensation and Government Claims Board the fees referred to
in subdivision (c), for the purpose of making refunds under this
section.
(e) Notwithstanding any geographical limitation contained in this
division, funds deposited pursuant to subdivision (b) may be expended
for physical or institutional development improvements needed to
facilitate long-term agricultural production within the City of
Carlsbad. These funds may be used to construct improvements outside
the coastal zone boundaries in San Diego County if the improvements
are not inconsistent with the Carlsbad local coastal program and the
State Coastal Conservancy determines that the improvements will
benefit agricultural production within the coastal zone of the City
of Carlsbad.
SEC. 589. Section 30222.5 of the Public Resources Code is amended
to read:
30222.5. Ocean front Ocean
front land that is suitable for coastal dependent aquaculture
shall be protected for that use, and proposals for aquaculture
facilities located on those sites shall be given priority, except
over other coastal dependent developments or uses.
SEC. 590. Section 30315.1 of the Public Resources Code is amended
to read:
30315.1. Adoption of findings for any action taken by the
commission requires a majority vote of the members from the
prevailing side present at the meeting of the commission, with
a at least three of the prevailing
members present and voting.
SEC. 591. Section 30608 of the Public Resources Code is amended to
read:
30608. (a) No person who
has obtained a vested right in a development prior to the effective
date of this division or who has obtained a permit from the
California Coastal Zone Conservation Commission pursuant to the
California Coastal Zone Conservation Act of 1972 (former
Division 18 (commencing with Section 27000)
27000)) shall be required to secure approval for the
development pursuant to this division ; provided, however,
that . However, no substantial change may be
made in any such the development
without prior approval having been obtained under this division.
SEC. 592. Section 30610.4 of the Public Resources Code is amended
to read:
30610.4. (a) Upon establishment of an
acquisition cost pursuant to subdivision (f) of Section 30610.3, the
commission shall review the area in question to determine if all or
some portion of that area meets the criteria specified in subdivision
(b) of Section 30610.1 for areas within which no coastal development
permit will be required from the commission for construction of
single-family residences. Notwithstanding paragraph (1) of
subdivision (c) of Section 30610.1, lots , other than
those immediately adjacent to any beach or to the mean high tide line
where there is no beach , can be included in
such an this exclusion area. If the commission
determines an area designated pursuant to subdivision (b) of Section
30610.3 meets that criteria, the area shall be designated as one
wherein no coastal development permit from the commission shall be
required for the construction of single-family residences.
(b) Prior to the commencement of construction of any single-family
residence within an area designated pursuant to this section, a
certificate of exemption must be obtained pursuant to Section 30610.2
and the appropriate "in-lieu" public access fee shall be paid.
SEC. 593. Section 30610.6 of the Public Resources Code is amended
to read:
30610.6. (a) The Legislature hereby finds and declares that it is
in the public interest to provide by statute for the resolution of
the lengthy and bitter dispute involving development of existing
legal lots within the unincorporated area of Sonoma County, commonly
known as the Sea Ranch. The reasons for the need to finally resolve
this dispute include the following :
(1) Acknowledgment by the responsible regulatory agencies that
development of existing lots at Sea Ranch can proceed consistent with
the provisions of this division and other applicable laws provided
certain conditions have been met. Development has been prevented at
considerable costs to property owners because these conditions have
not been met.
(2) That it has been, and continues to be, costly to Sea Ranch
property owners and the public because of, among other reasons,
extensive and protracted litigation, continuing administrative
proceedings, and escalating construction costs.
(3) The need to provide additional public access to and along
portions of the coast at the Sea Ranch in order to meet the
requirements of this division. The continuation of this dispute
prevents the public from enjoying the use of such
those access opportunities.
(4) The commission is unable to refund 118 "environmental deposits"
to property owners because coastal development permit conditions
have not been met.
(5) It appears likely that this lengthy dispute will continue
unless the Legislature provides a solution, and the failure to
resolve the dispute will be unfair to property owners and the public.
(b) The Legislature further finds and declares that because of the
unique circumstances of this situation, the provisions of this
section constitute the most expeditious and equitable mechanism to
ensure a timely solution that is in the best interest of property
owners and that is consistent with the requirements of
this division.
(c) If the Sea Ranch Association and Oceanic California, Inc.
desire to take advantage of the terms of this section, they shall,
not sooner than April 1, 1981, and not later than July 1, 1981,
deposit into escrow deeds and other necessary documents that have
been determined by the State Coastal Conservancy prior to their
deposit in escrow to be legally sufficient to convey to the State
Coastal Conservancy enforceable and nonexclusive public use easements
free and clear of liens and encumbrances for the easements
specifically described in this subdivision. Upon deposit of five
hundred thousand dollars ($500,000) into the same escrow account by
the State Coastal Conservancy, but in no event later than 30 days
after such the deeds and other
necessary documents have been deposited in the escrow account, the
escrow agent shall transmit the five hundred thousand dollars
($500,000), less the escrow, title, and administrative costs of the
State Coastal Conservancy, in an amount not to exceed twenty thousand
dollars ($20,000), to the Sea Ranch Association and shall convey
such the deeds and other necessary
documents to the State Coastal Conservancy. The conservancy shall
subsequently convey such the deeds and
other necessary documents to an appropriate public agency that is
authorized and agrees to accept such the
easements. The deeds specified in this subdivision shall be for
the following easements:
(1) In Unit 34A, a 30-foot wide vehicle and pedestrian access
easement from a point on State Highway 1, 50 feet north of mile post
marker 56.75, a day parking area for 10 vehicles, a 15-foot wide
pedestrian accessway from the parking area continuing west to the
bluff-top trail, and a 15-foot wide bluff-top pedestrian easement
beginning at the southern boundary of Gualala Point County Park and
continuing for approximately three miles in a southerly direction to
the sandy beach at the northern end of Unit 28 just north of Walk-on
Beach together with a 15-foot wide pedestrian easement to provide a
connection to Walk-on Beach to the south.
(2) In Unit 24, a day parking area west of State Highway 1, just
south of Whalebone Reach, for six vehicles, and a 15-foot wide
pedestrian accessway over Sea Ranch Association common areas crossing
Pacific Reach and continuing westerly to the southern portion of
Shell Beach with a 15-foot wide pedestrian easement to connect with
the northern portion of Shell Beach.
(3) In Unit 36, a 30-foot wide vehicle and pedestrian accessway
from State Highway 1, mile post marker 53.96, a day parking area for
10 vehicles, and a 15-foot wide pedestrian accessway from the parking
area to the beach at the intersection of Units 21 and 36.
(4) In Unit 17, adjacent to the intersection of Navigator's Reach
and State Highway 1, 75 feet north of mile post marker 52.21, enough
land to provide day parking for four vehicles and a 15-foot wide
pedestrian accessway from the parking area to Pebble Beach.
(5) In Unit 8, a 30-foot wide vehicle and pedestrian accessway
from State Highway 1, mile post marker 50.85, a day parking area for
10 vehicles and a 15-foot wide pedestrian accessway from the parking
area to Black Point Beach.
(6) With respect to each of the beaches to which access will be
provided by the easements specified in this subdivision, a
an easement for public use of the area between
the line of mean high tide and either the toe of the adjacent bluff
or the first line of vegetation, whichever is nearer to the water.
(7) Scenic view easements for those areas specified by the
executive director, as provided in subdivision (d), and which
easements allow for the removal of trees in order to restore and
preserve scenic views from State Highway 1.
(d) The executive director of the commission shall, within 30 days
after the effective date of this section, specifically identify the
areas along State Highway 1 for which the scenic view easements
provided for in paragraph (7) of subdivision (c) will be required. In
identifying the areas for which easements for the restoration and
preservation of public scenic views will be required, the executive
director shall take into account the effect of tree removal so as to
avoid causing erosion problems. It is the intent of the Legislature
that only those areas be identified where scenic views to or along
the coast are unique or particularly beautiful or spectacular and
which thereby take on public
importance. The restoration and preservation of the scenic view
areas specified pursuant to this subdivision shall be at public
expense.
(e) Within 30 days after the effective date of this section, the
executive director of the commission shall specify design criteria
for the height, site, and bulk of any development visible from the
scenic view areas provided for in subdivision (d). Such
This criteria shall be enforced by the County of
Sonoma if the deeds and other necessary documents specified in
subdivision (c) have been conveyed to the State Coastal Conservancy.
Such This criteria shall be reasonable
so as to enable affected property owners to build single-family
residences of substantially similar overall size to those
which that property owners who are not affected
by these criteria may build or have already built under the Sea Ranch
Association's building design criteria. The purpose of such
the criteria is to ensure that development will
not substantially detract from the specified scenic view areas.
(f) On and after the date on which the deeds and other necessary
documents deposited in escrow pursuant to subdivision (c) have been
conveyed to the State Coastal Conservancy, no additional public
access requirements shall be imposed at the Sea Ranch pursuant to
this division by any regional commission, the commission, any other
state agency, or any local government. The Legislature hereby finds
and declares that the provision of the access facilities specified in
this subdivision shall be deemed adequate to meet the requirements
of this division.
(g) The realignment of internal roads within the Sea Ranch shall
not be required by any state or local agency acting pursuant to
the provisions of this division ;
provided, however, that . However, appropriate
easements may be required by the County of Sonoma to provide for the
expansion of State Highway 1 for the development of turnout and
left-turn lanes and for the location of a bicycle path, when the
funds are made available for such those
purposes. The Legislature finds and declares that the
provisions of this subdivision are
is adequate to meet the requirements of this division to ensure
that new development at the Sea Ranch will not overburden the
capacity of State Highway 1 to the detriment of recreational users.
(h) No coastal development permit shall be required pursuant to
this division for the development of supplemental water supply
facilities determined by the State Water Resources Control Board to
be necessary to meet the needs of legally permitted development
within the Sea Ranch. The commission, through its executive director,
shall participate in the proceedings before the State Water
Resources Control Board relating to such
these facilities and may recommend terms and conditions that
the commission deems necessary to protect against adverse impacts on
coastal zone resources. The State Water Resources Control Board shall
condition any permit or other authorization for the development of
such these facilities so as to carry
out the commission's recommendation, unless the State Water Resources
Control Board determines that any such the
recommended terms or conditions are unreasonable. This
subdivision shall become operative if the deeds and other necessary
documents specified in subdivision (c) have been conveyed to the
State Coastal Conservancy.
(i) Within 90 days after the effective date of this section, the
commission, through its executive director, shall specify criteria
for septic tank construction, operation, and monitoring within the
Sea Ranch to ensure protection of coastal zone resources consistent
with the policies of this division. The North Coast Regional Water
Quality Control Board shall review such the
criteria and adopt it, unless it finds such
the criteria or a portion thereof is unreasonable. The
regional board shall be responsible for the enforcement of
any such the adopted criteria if the deeds and
other necessary documents specified in subdivision (c) have been
conveyed to the State Coastal Conservancy.
(j) Within 60 days after the date on which the deeds and other
necessary documents deposited in escrow pursuant to subdivision (c)
have been conveyed to the State Coastal Conservancy, the commission
shall refund every Sea Ranch"environmental
Ranch "environmental deposit" together with any interest earned
on such the deposit to the person, or
his or her designee, who paid such the
deposit.
(k) Notwithstanding any other provision of law, on and after the
date on which the deeds and other necessary documents deposited in
escrow pursuant to subdivision (c) have been conveyed to the State
Coastal Conservancy, a coastal development permit shall not be
required pursuant to this division for the construction of any
single-family residence dwelling on any vacant, legal lot existing at
the Sea Ranch on the effective date of this section. With respect to
any other development for which a coastal development permit is
required within legally existing lots at the Sea Ranch, no conditions
may be imposed pursuant to this division that impose additional
public access requirements or that relate to supplemental water
supply facilities, septic tank systems, or internal road realignment.
(l) Notwithstanding any other provision of law, if on July 1,
1981, deeds and other necessary documents that are legally sufficient
to convey the easements specified in subdivision (c) have not been
deposited in an escrow account, the provisions of this section shall
no longer be operative and shall have no force or effect and
thereafter all the provisions of this division in effect prior to
enactment of this section shall again be applicable to any
development within the Sea Ranch.
(m) The Legislature hereby finds and declares that the provisions
for the settlement of this dispute, especially with respect to public
access, as set forth in this section provide an alternative to and
are equivalent to the provisions set forth in Section 30610.3. The
Legislature further finds that the provisions of this section are not
in lieu of the permit and planning requirements of this division but
rather provide for an alternative mechanism to Section 30610.3 for
the resolution of outstanding issues at the Sea Ranch.
SEC. 594. Section 30716 of the Public Resources Code is amended to
read:
30716. (a) A certified port master plan may be amended by the
port governing body, but no such an
amendment shall not take effect until it has been
certified by the commission. Any proposed amendment shall be
submitted to, and processed by, the commission in the same manner as
provided for submission and certification of a port master plan.
(b) The commission shall, by regulation, establish a procedure
whereby proposed amendments to a certified port master plan may be
reviewed and designated by the executive director of the commission
as being minor in nature and need not comply with Section 30714.
Such These amendments shall take effect
on the 10th working day after the executive director designates
such the amendments as minor.
(c) (1) The executive director may determine that a proposed
certified port master plan amendment is de minimis if the executive
director determines that the proposed amendment would have no impact,
either individually or cumulatively, on coastal resources, is
consistent with the policies of Chapter 3 (commencing with Section
30200), and meets the following criteria:
(A) The port governing body, at least 21 days prior to the date of
submitting the proposed amendment to the executive director, has
provided public notice, and provided a copy to the commission, which
specifies the dates and places where comments will be accepted on the
proposed amendment, contains a brief description of the proposed
amendment, and states the address where copies of the proposed
amendment are available for public review, by one of the following
procedures:
(i) Publication, not fewer times than required by Section 6061 of
the Government Code, in a newspaper of general circulation in the
area affected by the proposed amendment. If more than one area will
be affected, the notice shall be published in the newspaper of
largest circulation from among the newspapers of general circulation
in those areas.
(ii) Posting of the notice by the port governing body both onsite
and offsite in the area affected by the proposed amendment.
(iii) Direct mailing to the owners and occupants of contiguous
property shown on the latest equalized assessment roll.
(B) The proposed amendment does not propose any change in land use
or water uses or any change in the allowable use of property.
(2) At the time that the port governing body submits the proposed
amendment to the executive director, the port governing body shall
also submit to the executive director any public comments that were
received during the comment period provided pursuant to subparagraph
(A) of paragraph (1).
(3) (A) The executive director shall make a determination as to
whether the proposed amendment is de minimis within 10 working days
from the date of submittal by the local government. If the proposed
amendment is determined to be de minimis, the proposed amendment
shall be noticed in the agenda of the next regularly scheduled
meeting of the commission, in accordance with Section 11125 of the
Government Code, and any public comments forwarded by the port
governing body shall be made available to the members of the
commission.
(B) If three members of the commission object to the executive
director's determination that the proposed amendment is de minimis,
the proposed amendment shall be set for public hearing in accordance
with the procedures specified in subdivision (b), or as specified in
subdivision (c) if applicable, as determined by the executive
director, or, at the request of the port governing body, returned to
the local government. If set for public hearing under subdivision
(b), the time requirements set by this section and Section 30714
shall commence from the date on which the objection to the de minimis
designation was made.
(C) If three of or more members of
the commission do not object to the de minimis determination, the de
minimis amendment shall become a part of the certified port master
plan 10 days from the date of the commission meeting.
(4) The commission may, after a noticed public hearing, adopt
guidelines to implement this subdivision, which shall be exempt from
review by the Office of Administrative Law and from Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code. The commission shall file any guidelines
adopted pursuant to this paragraph with the Office of Administrative
Law.
SEC. 595. Section 31163 of the Public Resources Code is amended to
read:
31163. (a) The conservancy shall cooperate with cities, counties,
and districts, the bay commission, other regional governmental
bodies, nonprofit land trusts, nonprofit landowner organizations, and
other interested parties in identifying and adopting long-term
resource and outdoor recreational goals for the San Francisco Bay
Area area , which shall guide the
ongoing activities of the San Francisco Bay Area Conservancy Program.
The conservancy shall utilize the list of priority areas and
concerns established by the bay commission pursuant to subdivision
(b) of Section 31056 as guidance in the selection of those San
Francisco area projects that are within the jurisdiction of the bay
commission. However, the guidance provided by the bay commission is
advisory and the conservancy shall have the responsibility for making
program decisions. Any acquisition of real property using funds
authorized pursuant to this chapter shall be from willing sellers if
the land is actively farmed or ranched. Any acquisition of real
property by the conservancy pursuant to this chapter shall be from
willing sellers.
(b) The conservancy shall participate in and support interagency
actions and public/private partnerships in the San Francisco Bay
Area area for the purpose of
implementing subdivision (a), and providing for broad-based local
involvement in, and support for, the San Francisco Bay Area
Conservancy Program.
(c) The conservancy shall utilize the criteria specified in this
subdivision to develop project priorities for the San Francisco Bay
Area Conservancy Program that provide for development and acquisition
projects, urban and rural projects, and open space and outdoor
recreational projects. The conservancy shall give priority to
projects that, to the greatest extent, meet the following criteria:
(1) Are supported by adopted local or regional plans.
(2) Are multijurisdictional or serve a regional constituency.
(3) Can be implemented in a timely way.
(4) Provide opportunities for benefits that could be lost if the
project is not quickly implemented.
(5) Include matching funds from other sources of funding or
assistance.
(d) (1) The conservancy shall be the lead agency in the funding
and development of projects implementing the San Francisco Bay Area
Water Trail Plan prepared pursuant to Section 66694 of the Government
Code.
(2) During the period when the plan is being prepared and after
the completion of the plan, the conservancy may undertake projects
and award grants that are generally consistent with and advance the
preparation of the plan or achieve the implementation of the plan.
(3) To advance the preparation of the plan, the conservancy shall
help coordinate a collaborative partnership with the San
Francisco Bay Conservation and Development Commission
bay commission , the Association of Bay Area Governments, and
other interested persons, organizations , and agencies,
including, but not limited to, interested state, county, and district
departments and commissions, parks and park districts, ports,
regional governmental bodies, nonprofit groups, user groups, and
businesses.
(4) In developing the plan and undertaking projects to implement
the plan, areas for which access is to be managed or prohibited shall
be determined in consultation with resource protection agencies, the
United States Coast Guard, the Water Transit Authority, the State
Lands Commission, local law enforcement agencies, and through the
environmental review process required by the California Environmental
Quality Act (Division 13 (commencing with Section 21000)).
(5) Upon the completion of the plan, the conservancy shall
consider the plan's adoption and inclusion of the appropriate
elements of the plan in the conservancy's strategic plan.
(6) The conservancy shall not award a grant or undertake a project
for the San Francisco Bay Area Water Trail that would have a
significant adverse impact on a sensitive wildlife area or is in
conflict with the goals of subdivision (a) of Section 31162.
SEC. 596. Section 31258 of the Public Resources Code is amended to
read:
31258. (a) Following the completion of a coastal
resource enhancement plan, the conservancy shall forward the plan to
the commission for determination of conformity of the plan with the
policies and objectives of Division 20 (commencing with Section
30000). The commission shall have 60 days to review the project and
transmit the findings on the plan to the conservancy. If no comments
are received within the period, the restoration plan shall be deemed
to be in accord with Division 20 (commencing with Section 30000).
(b) (1) Following the certification of a
local coastal program, the city or ,
county , or city and county with jurisdiction over the
certified area, rather than the commission, shall review the coastal
resource enhancement plan where if all of the
following circumstances apply : (1) the
(A) The proposed enhancement plan
will be implemented entirely within one local public agency's
jurisdiction ; (2) the .
(B) The area proposed for
enhancement is identified pursuant to the provisions of
Section 31251 ; and (3) implementation
.
(C) Implementation of the
enhancement plan does not require an amendment to the certified local
coastal program. The
(2) The local public agency shall
review the enhancement plan to determine consistency with the
certified local coastal program within 60 days after transmittal of
the plan from the conservancy and shall transmit its findings to the
conservancy immediately upon completion of plan review. If no
comments are received at the end of the 60-day period, the plan shall
be deemed to be in accord with the provisions of the certified local
coastal program.
Where
(c) If the enhancement plan will
be implemented in whole or in part in an area in which the commission
retains coastal development permit jurisdiction pursuant to
subdivision (b) of Section 30519, or in an area in
which two or more local governments have jurisdiction, or where a
local coastal program amendment is required to implement the plan,
the commission shall be responsible for enhancement plan review and
shall conduct the review in the following manner. The commission
shall review the enhancement plan for consistency with the policies
and objectives of Division 20 (commencing with Section 30000)
, as provided in subdivision (a), for the area subject to
retained coastal development permit jurisdiction pursuant to
subdivision (b) of Section 30159 30519
and where a local coastal program amendment is required, and shall
review the plan for consistency with certified local coastal programs
for areas under local government coastal development permit
jurisdiction.
SEC. 597. Section 32103 of the Public Resources Code is amended to
read:
32103. Except as otherwise expressly provided by the authority,
every issue of its bonds shall be general obligations of the
authority payable from any revenues or moneys of the authority
available therefor and not otherwise pledged, including the proceeds
of additional bonds, subject only to any agreements with the holders
of particular bonds, notes, or other obligations pledging any
particular revenues or moneys and subject to any agreements with
holders of particular bonds pledging any particular revenues.
Notwithstanding that the bonds may be payable from a special fund,
they shall be and deemed to be negotiable
instruments for all purposes, subject only to the bond registration
provisions.
SEC. 598. Section 33201 of the Public Resources Code is amended to
read:
33201. (a) The State Coastal Conservancy , pursuant to
Division 21 (commencing with Section 31000) , has the
prime responsibility for carrying out projects identified in
certified local coastal programs for jurisdictions within the coastal
zone portion of the zone, and the Santa Monica Mountains Conservancy
has the prime responsibility pursuant to this division to undertake
projects within the coastal zone portion of the zone that implement
the park, recreation, conservation, and open-space provisions of the
plan.
(b) This section does not affect any project undertaken by the
Santa Monica Mountains Convervancy
Conservancy or the State Coastal Conservancy prior to January
1, 1983, nor shall this section be construed to affect the existing
review and approval powers of the California Coastal Commission.
(c) The State Coastal Conservancy does not have jurisdiction in
the zone outside the coastal zone portion of the zone.
SEC. 599. Section 33207.5 of the Public Resources Code is amended
to read:
33207.5. (a) The executive director, on behalf of the
conservancy, shall, contemporaneously with the Los Angeles Unified
School District completing all procedures and transfers in accordance
with subdivisions (b) and (c), waive and release all the conservancy'
s right, title, or interest to purchase Los Angeles Unified School
District property pursuant to subdivision (b) of Section 33207, and
pursuant to any other statutory authority, wherever granted, to those
school sites commonly referred to as the Beverly Glen Midsite School
site, the property commonly referred to as the four recorded lots of
the Old Ranch Road School site, the property commonly referred to as
the South of Lanai Road School site, and any other school district
properties located within the zone, except that the conservancy shall
retain all rights to purchase the acreage parcel of the Old Ranch
Road School site as set forth in this section.
(b) The exemption in subdivision (a) shall become operative if the
Board of Education of the Los Angeles Unified School District
(hereafter , referred to in this
section as the Board of Education)
Education , within two days of the effective date of this
section, votes to offer to the conservancy, and within five days of
the effective date of this section records in the office of the Los
Angeles County Recorder, an irrevocable offer to sell to the
conservancy, at the original purchase price, the Temescal Junior High
School site; and records in the office of the Los Angeles County
Recorder an offer of a right to purchase to the conservancy upon
terms and procedures in accordance with subdivision (d), a portion of
the Old Ranch Road site described as follows:
All that portion of blocks 39 and 43 lying within the Santa Monica
Land and Water Company Tract M.R. 78-44/49 owned by the Los Angeles
Unified School District, together with appurtenant access easements
along Old Ranch Road.
(c) The exemption in subdivision (a) shall only become operative
if the Board of Education, within two days of the effective date of
this section, approves a resolution of intention to sell the Old
Ranch Road site described in subdivision (b). The resolution to sell
shall direct publication of notice of the Board of Education's
intention to sell in a newspaper of general circulation published
within the Los Angeles Unified School District within 10 days of
such the resolution and shall cause the
notice to be published on at least three occasions within a period
of time of not less than 15 days. The notice shall fix a date for the
opening of bids not less than 21 days after the last publication.
The bids shall be opened in public in the offices of the real estate
branch in accordance with the Los Angeles Unified School District's
procedure. The executive director of the conservancy shall be advised
of the bid opening and location not less than seven days prior
thereto. The resolution to sell and notice shall state a minimum bid
price of one million four hundred thousand dollars ($1,400,000) cash
sale, and close of escrow to occur within 45 days of acceptance of
the highest responsible bid by the Board of Education. All bids shall
be in writing and accompanied by a deposit of not less than fifty
thousand dollars ($50,000) in cash or cashier's check.
(d) (1) Prior to accepting any responsible
bid received pursuant to subdivision (c), the Board of Education or
its designee , shall call for oral bids. If, upon
the call for oral bidding, any person offers to purchase the property
upon the terms and conditions specified in the resolution, for a
price exceeding by at least 5 percent the highest written or previous
oral proposal which that is made by a
responsible person, that higher bid shall be designated as the
highest responsible bid , provided that if
the oral bid is reduced to writing and signed by the offeror
and accompanied by a cashier's check or by cash in an amount not less
than fifty thousand dollars ($50,000).
(2) After determining the highest
responsible bidder, the Board of Education shall offer the Old Ranch
Road School site described in subdivision (b) to the conservancy at
the price indicated in the highest responsible bid as determined in
subdivisions subdivision (c) and
(d) this subdivision , but at a price
not less than one million four hundred thousand dollars ($1,400,000).
The offer shall be in writing and shall remain open for a period of
10 days from the date that the written offer is received by the
conservancy. The executive director of the conservancy shall have the
right, against all others, to gain the right to purchase
such the property at any time within the 10-day
period at the price of the highest responsible bid by communicating
to the Board of Education in writing.
(3) In the event the executive director of
the conservancy exercises the right to purchase pursuant to this
section, the State of California, Santa Monica Mountains Conservancy,
shall receive a conveyance of the property from the Board of
Education by quit claim deed if the State of California pays the
Board of Education by warrant or by cashier's check, the amount of
such the highest bid at any time within
a six-month period commencing with the date of the receipt by the
executive director of the conservancy of the Board of Education's
offer, as above described in this subdivision
.
(4 ) If the executive director of
the conservancy does not, within the 10-day period described in this
subdivision, indicate his or her intention to exercise
the right to purchase the property, the Board of Education may convey
the property to the highest responsible bidder. In the event the
highest responsible bidder fails to complete the purchase, the Board
of Education shall offer the property to the executive director of
the conservancy in accordance with the procedure set forth
herein in this subdivision for each successive
responsible bid, but in no case shall the price to the conservancy be
less than one million four hundred thousand dollars ($1,400,000).
(5) Should the executive director of the
conservancy indicate an intention to exercise the right to purchase
within the 10-day period, but fail to pay the Board of Education the
purchase price by warrant of the State of California or cashier's
check within the six-month period, or the executive director of the
conservancy fails to exercise the right to purchase within the 10-day
period and the property is purchased by the highest responsible
bidder, the executive director of the conservancy shall execute a
waiver and release in accordance with subdivision (a) for the Old
Ranch Road site as described in subdivision (b).
(e) (1) In the event the conservancy does
not acquire the portion of the Old Ranch Road site described in
subdivision (b) pursuant to the procedure set forth in this section,
and the conservancy has released and waived its rights pursuant to
subdivision (a), the Board
of Education may offer the Old Ranch Road site for purchase to the
highest responsible bidder on the same terms as determined pursuant
to this section, or should such the
responsible bidder no longer wish to purchase the property, the Board
of Education may offer the property for sale pursuant to the
provisions of the Education Code governing the sale of surplus
district property.
(2) Notwithstanding any other provision of
law, the Board of Education may adopt or approve any and all acts
required by it to carry out the provisions of this
section and may sell to the conservancy the real property described
as the Temescal Junior High School site at its original purchase
price in accordance with the procedures specified in this section by
an affirmative vote of five members of the Board of Education.
Further, notwithstanding the provisions of the Property Acquisition
Law (Part 11 (commencing with Section 15850) of Division 3 of Title 2
of the Government Code Code) , and any
other provision of law, the executive director of the conservancy
may take such any actions as
that are necessary to carry out the
provisions of this division.
SEC. 600. 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) An entity that collects, handles, consolidates, and transports
covered electronic devices and has filed applicable notifications
with the department pursuant to Chapter 23 (commencing with Section
66273.1) of Division 4.5 of Title 22 of the California Code of
Regulations.
(c) "Board" means the California Integrated Waste Management
Board.
(d) "Consumer" means a person who purchases a new or refurbished
covered electronic device in a transaction that is a retail sale or
in a transaction to which a use tax applies pursuant to Part 1
(commencing with Section 6001) of Division 2 of the Revenue and
Taxation Code.
(e) "Department" means the Department of Toxic Substances Control.
(f) (1) Except as provided in paragraph (2), "covered electronic
device" means a video display device containing a screen greater than
four inches, measured diagonally, that is identified in the
regulations adopted by the department pursuant to subdivision (b) of
Section 25214.10.1 of the Health and Safety Code.
(2) "Covered electronic device" does not include any of the
following:
(A) A video display device that is a part of a motor vehicle, as
defined in Section 415 of the Vehicle Code, or any component part of
a motor vehicle assembled by, or for, a vehicle manufacturer or
franchised dealer, including replacement parts for use in a motor
vehicle.
(B) A video display device that is contained within, or a part of
a piece of industrial, commercial, or medical equipment, including
monitoring or control equipment.
(C) A video display device that is contained within a clothes
washer, clothes dryer, refrigerator, refrigerator and freezer,
microwave oven, conventional oven or range, dishwasher, room
air-conditioner, dehumidifier, or air purifier.
(D) An electronic device, on and after the date that it ceases to
be a covered electronic device under subdivision (e) of Section
25214.10.1 of the Health and Safety Code.
(g) "Covered electronic waste" or "covered e-waste" means a
covered electronic device that is discarded.
(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) "Discarded" has the same meaning as defined in subdivision (b)
of Section 25124 of the Health and Safety Code.
(k) "Electronic waste recovery payment" means an amount
established and paid by the board 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 any either
of the following:
(1) A person who manufactures a covered electronic device sold in
this state.
(2) A person who sells a covered electronic device in this state
under that person's brand name.
(o) "Person" means an individual, trust firm, joint stock company,
business concern, and corporation, including, but not limited to, a
government corporation, partnership, limited liability company, and
association. Notwithstanding Section 40170, "person" also includes a
city, county, city and county, district, commission, the state or a
department, agency, or political subdivision thereof, an interstate
body, and the United States and its agencies and instrumentalities to
the extent permitted by law.
(p) "Recycling" has the same meaning as defined in subdivision (a)
of Section 25121.1 of the Health and Safety Code.
(q) "Refurbished," when used to describe a covered electronic
device, means a device that the manufacturer has tested and returned
to a condition that meets factory specifications for the device, has
repackaged, and has labeled as refurbished.
(r) "Retailer" means a person who makes a retail sale of a new or
refurbished covered electronic 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, a transaction conducted through a
sales outlet, catalog, or the Internet, or any other similar
electronic means.
(s) (1) "Retail sale" has the same meaning as defined under
Section 6007 of the Revenue and Taxation Code.
(2) "Retail sale" does not include the sale of a covered
electronic device that is temporarily stored or used in California
for the sole purpose of preparing the covered electronic device for
use thereafter solely outside the state, and that is subsequently
transported outside the state and thereafter used solely outside the
state.
(t) "Vendor" means a person that makes a sale of a covered
electronic device for the purpose of resale to a retailer who is the
lessor of the covered electronic device to a consumer under a lease
that is a continuing sale and purchase pursuant to Part 1
(commencing 1 (commencing with Section 6001) of
Division 2 of the Revenue and Taxation Code.
(u) "Video display device" means an electronic device with an
output surface that displays, or is capable of displaying, moving
graphical images or a visual representation of image sequences or
pictures, showing a number of quickly changing images on a screen in
fast succession to create the illusion of motion, including, if
applicable, a device that is an integral part of the display, in that
it cannot be easily removed from the display by the consumer, that
produces the moving image on the screen. A video display device may
use, but is not limited to, a cathode ray tube (CRT), liquid crystal
display (LCD), gas plasma, digital light processing, or other image
projection technology.
SEC. 601. Section 42888 of the Public Resources Code is amended to
read:
42888. (a) Except as agreed to by the board, no refund shall be
approved by the board after three years from the date the payment was
due for which the overpayment was made, or with respect to
deficiency or jeopardy determinations, after six months from the date
the determinations become final, or after six months from the date
of overpayment, whichever period expires later, unless a claim
therefor is filed with the board within that period. No credit shall
be approved by the board after the expiration of that period, unless
a claim for credit is filed with the board within that period or
unless the credit relates to a period for which a waiver is given by
the board.
(2)
(b ) A refund may be approved by the board
for any period agreed to by the board for good cause if a claim
therefor for the referral is filed with
the board before the expiration of the period agreed upon.
SEC. 602. Section 42891 of the Public Resources Code is amended to
read:
42891. (a) The Department
of General Services shall revise its procedures and procurement
specifications for state purchases of products which
that are made of, or contain components
which that can be derived from the recycling
of, used tires, including, but not limited to, rubber, oil, natural
gas, carbon black, asphalt rubber, floor tiles, carpet underlays,
mats, drainage pipes, garbage cans, retreaded tires, and water hoses.
For those purchases, the department shall give preference, wherever
feasible, to the suppliers of recycled tire products. This preference
shall be 5 percent of the lowest bid or price quoted by suppliers
offering similar products made from nonrecycled components.
SEC. 603. Section 43500 of the Public Resources Code is amended to
read:
43500. (a) The Legislature
hereby finds and declares that the long-term protection of air,
water, and land from pollution due to the disposal of solid waste is
best achieved by requiring financial assurances of the closure and
postclosure maintenance of solid waste landfills.
SEC. 604. Section 44820 of the Public Resources Code is amended to
read:
44820. (a) Except as provided in
subdivision (c), the board shall adopt, by regulation, a permitting,
inspection, and enforcement program for the disposal of asbestos
containing waste, as specified in Section 25143.7 of the Health and
Safety Code, at any solid waste facility or disposal site subject to
regulation pursuant to this part. The program may include, but is not
limited to, standards and certification requirements for local
enforcement agencies, pursuant to which the board may delegate
authority for the regulation of asbestos containing waste to local
enforcement agencies.
(b) On or before March 1, 1995, or the earliest feasible date
thereafter, the board and the Department of Toxic Substances Control
shall enter into a memorandum of understanding that defines the
enforcement responsibilities of each agency for the disposal of
asbestos containing waste at any solid waste disposal facility or
disposal site subject to regulation pursuant to this part. The
memorandum of understanding shall be periodically updated to be
consistent with each agency's responsibilities pursuant to this
section and Chapter 6.5 (commencing with Section 25100) of Division
30 of the Health and Safety Code.
(c) Until the board has adopted regulations pursuant to
subdivision (a), the Department of Toxic Substances Control shall
regulate asbestos containing waste at a solid waste facility or
disposal site.
(d) Any regulations adopted pursuant to this section shall be
deemed emergency regulations and shall be adopted in accordance with
the Administrative Procedures Act (Chapter 3.5 (commencing with
Section 11340) of Division 3 of Title 2 of the Government Code.) The
adoption of these regulations shall be deemed to be necessary for the
immediate preservation of the public peace, health, safety, or
general welfare.
SEC. 605. Section 49161 of the Public Resources Code is amended to
read:
49161. The resolution shall state all of the following:
(a) The general objectives and purposes for which it is proposed
to incur an indebtedness.
(b) A general description of all property to be acquired or
damaged and work to be executed through the expenditure of the funds
secured by the issuance and sale of the bonds.
(c) An estimate of the cost of the proposed work.
(d) The amount of the bonds proposed to be issued.
(e) The number of years beyond which the all of the
bonds are to run.
(f) The rate of interest or a maximum rate of interest to be paid.
(g) The date of the election.
(h) The election precincts, polling places, and election officers.
SEC. 606. Section 71081 of the Public Resources Code is amended to
read:
71081. (a) Beginning on July 1, 2004, to the extent that funds
are appropriated by the Legislature for this purpose, the office, on
behalf of the office of the secretary, shall develop and maintain a
system of environmental indicators. The office shall develop and
maintain the system to meet all of the following objectives for using
environmental indicators:
(1) Provide policymakers and the public with an improved
understanding of the condition of the state's environment and the
effects of the release of contaminants on public health and the
environment.
(2) Provide policymakers and the public with information to
evaluate the effectiveness of the agency's programs in improving
environmental quality and protecting public health throughout the
state, including environmental quality and public health in
low-income communities and communities of color.
(3) Assist in the development and modification of agency programs,
plans, and policies as environmental conditions change over time.
(4) Assist the agency in making budget decisions that address the
most significant environmental concerns.
(b) The following definitions apply to this section:
(1) "Agency" means the California Environmental Protection Agency.
(2) "Environmental indicator" means an objective and
scientifically based measure that represents information on
environmental conditions, releases of contaminants into the
environment, or the effects of those releases.
(3) "Office" means the Office of Environmental Health Hazard
Assessment.
(4) "Secretary" means the Secretary for Environmental Protection.
(c) The secretary shall submit a report on the environmental
indicators developed pursuant to this chapter to the Governor and the
Legislature on or before January 1, 2006, and by January 1 every two
years thereafter. The report shall include a discussion as to the
manner in which the environmental indicators are being used by the
agency to meet the objectives set forth in subdivision (a). The
office shall make the report available to the public on its
Internet Web site. The office shall include on its
Internet Web site any additional relevant information in
support of those environmental indicators and shall update that
information posted on the Internet Web site as new
information becomes available.
(d) The office shall be the lead agency for developing new
environmental indicators, for modifying, deleting, and updating
existing environmental indicators, and for developing and maintaining
an environmental indicator database. The office shall lead an
intra-agency workgroup, consisting of representatives from each of
the boards, departments, and offices within the agency. The office
shall consult with the intra-agency workgroup in developing and
maintaining the environmental indicators, program planning, policy
formulation, and other decisionmaking processes, and in drafting the
report required under subdivision (c).
(e) In developing and maintaining the environmental indicators,
the office shall consult with the Resources Agency, the State
Department of Health Services, and other state agencies as
appropriate.
(f) The office may utilize information for indicators that is not
collected by other boards and departments within the agency and may
identify and establish new indicators.
(h)
(g ) In implementing this section, the
office may hold public meetings to receive comments from a broad
range of stakeholders, including, but not limited to, local
government, the regulated community, nongovernmental organizations,
and other groups with an interest in environmental issues.
(i)
(h) The office shall consult with the scientific review
panel established pursuant to Section 50.8 of the Labor Code for the
purpose of establishing, updating, and evaluating environmental
indicators.
(j)
(i) The secretary shall periodically assess the ability
of the environmental indicators system to meet each of the
objectives cited in subdivision (a) and the ability of the system to
support the development and implementation of the agencywide
environmental justice strategy pursuant to Section 71113.
SEC. 607. Section 95.2 of the Revenue and Taxation Code is amended
to read:
95.2. (a) (1) Notwithstanding any other provision of law, for the
1990-91 fiscal year, for the purposes of the computations required
by Section 96.1 or its predecessor section, the amount of property
tax presumed to have been received by the county in the prior year
shall be increased by the amount of 1989-90 property tax
administrative costs proportionately attributable to incorporated
cities as determined pursuant to paragraph (2).
(2) The auditor shall determine the 1989-90 fiscal year property
tax administrative costs proportionately attributable to incorporated
cities by adding the 1989-90 fiscal year property tax-related costs
of the assessor, tax collector, and auditor, including applicable
administrative overhead costs as permitted by federal Office of
Management and Budget Circular A-87 standards, and multiplying the
sum of those amounts by the ratio of property tax revenue received by
all incorporated cities divided by the total property tax revenue
for all local jurisdictions in the county for that fiscal year.
(3) The county shall use the additional revenue received pursuant
to this subdivision only to fund the actual costs of assessing,
collecting, and allocating property taxes. At least once each fiscal
year, the county auditor shall report the amount of these actual
costs and allowable overhead costs to the legislative body and any
other jurisdiction or person that request
requests the information. To the extent that actual costs for
assessing, collecting, and allocating property taxes plus allowable
overhead costs are less than the amount determined pursuant to
paragraph (2), the county auditor shall apportion the difference to
each incorporated city as otherwise required by this section.
(4) The county may retain up to one-half of any increased property
tax allocation to which a jurisdiction may be otherwise entitled,
until the county receives its additional revenues pursuant to this
subdivision.
(5) It is the intent of the Legislature in enacting this
subdivision to recognize that since the adoption
approval of Article XIII A of the California Constitution
by the voters, county governments have borne an unfair and
disproportionate part of the financial burden of assessing,
collecting, and allocating property tax revenues for cities. It is
further the intent of the Legislature that the adjustments provided
for by this subdivision shall constitute charges by a county for the
assessment, collection, and allocation of property taxes and shall
not exceed the actual costs reasonably borne by a county for those
activities.
(b) If so directed by the board of supervisors, the auditor shall
determine the 1989-90 fiscal year property tax administrative costs
proportionately attributable to local jurisdictions other than the
county or city and county, and cities, by adding the property
tax-related costs of the assessor, tax collector, and auditor,
including applicable administrative overhead costs as permitted by
federal Office of Management and Budget Circular A-87 standards, and
multiplying the sum of those amounts by the ratio of property tax
revenue received by jurisdictions other than the county, city and
county, and cities, divided by the total property tax received by all
local jurisdictions in the county for that fiscal year.
Notwithstanding any other provision of law, this amount may be
calculated for each fiscal year commencing with the 1989-90 fiscal
year, and the auditor shall, commencing in the 1990-91
fiscal year 1990-91 , if so directed by the board
of supervisors, submit an invoice to these jurisdictions for services
rendered in the prior fiscal year.
(c) Notwithstanding subdivision (b), no invoice as described in
that subdivision shall be submitted to any school district, community
college district, or county office of education, nor shall any of
those entities be required to pay any invoice, for property tax
administrative costs for services rendered in the 1990-91 fiscal
year, or in any subsequent fiscal year. This subdivision shall not be
construed to prevent the auditor of any county from collecting from
school districts, community college districts, and county offices of
education, in accordance with subdivision (b), property tax
administrative costs for services rendered to those entities in the
1989-90 fiscal year.
SEC. 608. Section 531.7 of the Revenue and Taxation Code is
amended to read:
531.7. If property has not been legally assessable on the local
secured roll for any year because the property has been tax deeded to
a taxing agency other than the state, the property shall be deemed
to have escaped assessment for that year and shall be subject to
the provisions of this article if any of the
following circumstances apply :
(a) The property has not been declared tax defaulted for
delinquent taxes , and, .
(b) The property has been redeemed from the tax sale and
deed deeded to the taxing agency , or
.
(c) The tax deed to the taxing agency has been held to be invalid
and has been canceled; provided, however, that the statute of
limitations provided for in Section 532 shall not apply.
SEC. 609. Section 862 of the Revenue and Taxation Code is amended
to read:
862. When an assessee, after a request by the board, fails to
file a property statement by the date specified in Section 830 or
files with the board a property statement or report on a form
prescribed by the board with respect to state-assessed property and
the statement fails to report any taxable tangible property
information accurately, regardless of whether or not this information
is available to the assessee, to the extent that these failures
cause the board not to assess the property or to assess it at a lower
valuation than it would have if the property information had
been reported accurately, the property shall be assessed in
accordance with Section 864, and a penalty of 10 percent shall be
added to the additional assessment. If the failure to report or the
failure to report accurately is willful or fraudulent, a penalty of
25 percent shall be added to the additional assessment. If the
assessee establishes to the satisfaction of the board that the
failure to file an accurate property statement was due to reasonable
cause and occurred notwithstanding the exercise of ordinary care and
the absence of willful neglect, the board shall order the penalty
abated, provided , that the assessee
has filed with the board written application for abatement of the
penalty within the time prescribed by law for the filing of
applications for assessment reductions.
SEC. 610. Section 2188.5 of the Revenue and Taxation Code is
amended to read:
2188.5. (a) (1) Subject to the limitations
set forth in subdivision (b), whenever real property has been divided
into planned developments as defined in Sections
Section 11003 and 11003.1 of the
Business and Professions Code, the interests therein shall be
presumed to be the value of each separately owned lot, parcel ,
or area, and the assessment shall reflect this value ,
which includes all of the following:
(1)
(A) The assessment attributable to the value of the
separately owned lot, parcel , or area and the
improvements thereon.
(2)
(B) The assessment attributable to the share in the
common area reserved as an appurtenance of the separately owned lot,
parcel , or area.
(3)
(C) The new base year value of the common area
resulting from any change in ownership pursuant to Chapter 2
(commencing with Section 60) or new construction pursuant to Chapter
3 (commencing with Section 70) attributable to the share in the
common area reserved as an appurtenance of the separately owned lot,
parcel, or area.
(2) For the purposes of this section,
"common area" shall mean the land and improvements within a lot,
parcel , or area, the beneficial use and enjoyment of
which is reserved in whole or in part as an appurtenance to the
separately owned lots, parcels , or areas, whether this
common area is held in common or through ownership of shares of stock
or membership in an owners' association as defined in
Section 11003.1 of the Business and Professions Code . The
tax on each separately owned lot, parcel , or area shall
constitute a lien solely thereon and upon the proportionate interest
in the common area appurtenant thereto.
(b) Assessment in accordance with the provisions of
subdivision (a) shall only be required with respect to
those planned developments which that
satisfy both of the following
conditions:
(1) The development is located entirely within a single tax code
area.
(2) The entire beneficial ownership of the common area is reserved
as an appurtenance to the separately owned lots, parcels ,
or areas.
(c) The amendment to subdivision (b) made by the act
adding this subdivision Chapter 407 of the Statutes of
1984 shall apply to real property which
that has been divided into planned developments, as
defined in Sections Section 11003
and 11003.1 of the Business and Professions Code,
on and after the effective date of the act adding this
subdivision Chapter 407 of the Statutes of 1984
.
SEC. 611. Section 2700 of the Revenue and Taxation Code is amended
to read:
2700. Notwithstanding the provisions of
Sections 2605, 2606, 2607, 2617, 2618, 2621 , and 2624
of Chapter 1, Part 5, Division 1, of this code ,
if so ordered by a resolution of the board of supervisors of any
county, the provisions of this chapter shall be
applicable to such that county,
provided that such the resolution
must shall be adopted prior to the time
the county auditor is required to compute and enter on the secured
roll the respective amounts due in installments as taxes for the
assessment year in which such the
resolution shall become becomes
effective. The provisions of this This
chapter shall apply only to such a that
county and shall then apply until otherwise ordered by a resolution
of the board of supervisors.
SEC. 612. Section 4676 of the Revenue and Taxation Code is amended
to read:
4676. (a) When excess proceeds from the
sale of tax-defaulted property exceeds one hundred fifty dollars
($150), the county shall provide notice of the right to claim the
excess proceeds, as provided herein in this
section .
(a)
(b) No later than 90 days after the sale of the
property, the county shall mail written notice of the right to claim
excess proceeds to the last known mailing address of parties of
interest, as defined in Section 4675. The county shall make a
reasonable effort to obtain the name and last known mailing address
or of parties of interest.
(b)
(c) If the last known address of a party of interest
cannot be obtained, the county shall publish notice of the right to
claim excess proceeds in a newspaper of general circulation in the
county. The notice shall be published once a week for three
successive weeks and shall commence no later than 90 days after the
sale of such the property.
(d) The cost of obtaining the name and last
known mailing address of parties of interest and of mailing or
publishing the notices required herein under
this section shall be deducted from the excess proceeds and
shall be distributed to the county general fund.
SEC. 613. Section 4703.3 of the Revenue and Taxation Code is
amended to read:
4703.3. Notwithstanding any other provision of law, general,
special, or local, if Orange County sells or assigns obligations
arising out of delinquent assessments or taxes on the secured roll to
a joint powers agency pursuant to Section 26220.5 of the Government
ode Code , the Orange County Board of
Supervisors may elect to transfer its tax losses reserve fund to the
joint powers agency. The tax losses reserve fund shall be maintained
by the joint powers agency according to Section 4703 or 4703.2,
whichever is applicable, except that the tax losses reserve fund may
both be used to cover losses that may occur in the amount of tax
liens as a result of special sales of tax-defaulted property and,
subject to agreements with bondholders, be pledged as a reserve for
bonds issued by the joint powers agency to purchase the obligations
arising out of delinquent assessments or taxes on the secured roll.
SEC. 614. Section 6067 of the Revenue and Taxation Code is amended
to read:
6067. After compliance with Sections 6066 and 6701 by the
applicant, and after the giving the applicant the
notice required by Section 6066.5, the board shall grant and issue to
each applicant a separate permit for each place of business within
the state. A permit is not assignable and is valid only for the
person in whose name it is issued and for the transaction of business
at the place designated therein. It shall at all times be
conspicuously displayed at the place for which issued.
SEC. 615. Section 6201.2 of the Revenue and Taxation Code is
amended to read:
6201.2. (a) In addition to the taxes imposed by Section 6201 and
any other provision of this part, an excise tax is hereby imposed on
the storage, use, or other consumption in this state of tangible
personal property purchased from any retailer on or after July 15,
1991, for storage, use, or other consumption in this state at the
rate of 1/2 percent of the sales price of the property.
(b) All revenues receive received
pursuant to this section shall be deposited in the State Treasury to
the credit of the Local Revenue Fund, as established pursuant to
Section 17600 of the Welfare and Institutions Code.
(c) This section shall cease to be operative on the first day of
the first month of the calendar quarter following notification to the
board by the Department of Finance of a final judicial determination
by the California Supreme Court or any California court of appeal
that the revenues collected pursuant to this section and Section
6051.2 and deposited in the Local Revenue Fund are either of the
following:
(1) "General Fund proceeds of taxes appropriated pursuant to
Article XIII B of the California Constitution," as used in
subdivision (b) of Section 8 of Article XVI of the California
Constitution.
(2) "Allocated local proceeds of taxes," as used in subdivision
(b) of Section 8 of Article XVI of the California Constitution.
SEC. 616. Section 6376.1 of the Revenue and Taxation Code is
amended to read:
6376.1. (a) On and after July 15, 1991, there are
is exempted from the taxes imposed by this part
an amount equal to an amount that is attributable to a 1/4 percent
rate of tax with respect to the following:
(1) The gross receipts from the sale of and the storage, use, or
other consumption in this state of the following:
(A) Tangible personal property if the seller is obligated to
furnish or the purchaser is obligated to purchase, the property for a
fixed price pursuant to a contract entered into prior to July 15,
1991.
(B) Materials and fixtures obligated pursuant to an engineering
construction contract or a building construction contract entered
into for a fixed price prior to July 15, 1991.
(C) For purposes of this section, tangible personal property shall
not be deemed obligated pursuant to a contract for any period of
time for which any party to the contract has the right to terminate
the contract upon notice, whether or not the right is exercised.
(2) A lease of tangible personal property that is a continuing
sale of the property for any period of time for which the lessor is
obligated to lease the property for an amount fixed by the lease
prior to July 15, 1991. For the purposes of this paragraph, the sale
or lease of tangible personal property shall be deemed not to be
obligated pursuant to a contract or lease for any period of time for
which any party to the contract or lease has the unconditional right
to terminate the contract or lease upon notice, whether or not that
right is exercised.
(3) The possession of, or the exercise of any right or power over,
tangible personal property under a lease that is a continuing
purchase of the property for any period of time for which the lessee
is obligated to lease the property for an amount fixed by a lease
entered into prior to July 15, 1991. For purposes of this paragraph,
the storage, use, or other consumption of, or possession of, or
exercise of any right or power over, tangible personal property shall
be deemed not to be obligated pursuant to a contract or lease for
any period of time for which any party to the contract or lease has
the unconditional right to terminate the contract or lease upon
notice, whether or not the right is exercised.
(b) From July 15, 1991, to the date on which the taxes imposed by
Sections 6051.2 and 6201.2 cease to be operative pursuant to
subdivision (b) of Section 6051.2 or subdivision (b) of Section
6201.2, there are is exempted from the
taxes imposed by this part an amount equal to an amount that is
attributable to a one-half of 1 percent rate of tax with respect to
the following:
(1) The gross receipts from the sale of and the storage, use, or
other consumption in this state of the following:
(A) Tangible personal property if the seller is obligated to
furnish or the purchaser is obligated to purchase, the property for a
fixed price pursuant to a contract entered into prior to July 15,
1991.
(B) Materials and fixtures obligated pursuant to an engineering
construction contract or a building construction contract entered
into for a fixed price prior to July 15, 1991.
(C) For purposes of this section, tangible personal property shall
not be deemed obligated pursuant to a contract for any period of
time for which any party to the contract has the right to terminate
the contract upon notice, whether or not the right is exercised.
(2) A lease of tangible personal property that is a continuing
sale of the property for any period of time for which the lessor is
obligated to lease the property for an amount fixed by the lease
prior to July 15, 1991. For the purposes of this paragraph, the sale
or lease of tangible personal property shall be deemed not to be
obligated pursuant to a contract or lease for any period of time for
which any party to the contract or lease has the unconditional right
to terminate the contract or lease upon notice, whether or not that
right is exercised.
(3) The possession of, or the exercise of any right or power over,
tangible personal property under a lease that is a continuing
purchase of the property for any period of time for which the lessee
is obligated to lease the property for an amount fixed by a lease
entered into prior to July 15, 1991. For purposes of this paragraph,
the storage, use, or other consumption of, or possession of, or
exercise of any right or power over, tangible personal property shall
be deemed not to be obligated pursuant to a contract or lease for
any period of time for which any party to the contract or lease has
the unconditional right to terminate the contract or lease upon
notice, whether or not the right is exercised.
(c) From July 15, 1991, to the date the taxes imposed by Sections
6051.5 and 6201.5 cease to be operative, there are
is exempted from the taxes imposed by this part an amount
equal to an amount that is attributable to a1/2 percent rate of tax
with respect to the following:
(1) The gross receipts from the sale of and the storage, use, or
other consumption in the state of the following:
(A) Tangible personal property if the seller is obligated to
furnish or the purchaser is obligated to purchase, the property for a
fixed price pursuant to a contract entered into prior to July 15,
1991.
(B) Materials and fixtures obligated pursuant to an engineering
construction contract or a building construction contract entered
into for a fixed price prior to July 15, 1991.
(C) For purposes of this section, tangible personal property shall
not be deemed obligated pursuant to a contract for any period of
time for which any party to the contract has the right to terminate
the contract upon notice, whether or not the right is exercised.
(2) A lease of tangible personal property that is a continuing
sale of the property for any period of time for which the lessor is
obligated to lease the property for an amount fixed by the lease
prior to July 15, 1991. For the purposes of this paragraph, the sale
or lease of tangible personal property shall be deemed not to be
obligated pursuant to a contract or lease for any period of time for
which any party to the contract or lease has the unconditional right
to terminate the contract or lease upon notice, whether or not that
right is exercised.
(3) The possession of, or the exercise of any right or power over,
tangible personal property under a lease that is a continuing
purchase of the property for any period of time for which the lessee
is obligated to lease the property for an amount fixed by a lease
entered into prior to July 15, 1991. For purposes of this paragraph,
the storage, use, or other consumption of, or possession of, or
exercise of any right or power over, tangible personal property shall
be deemed not to be obligated pursuant to a contract or lease for
any period of time for which any party to the contract or lease has
the unconditional right to terminate the contract or lease upon
notice, whether or not the right is exercised.
(d) On and after July 15, 1991, there are
is exempted from the taxes imposed by this part an amount equal
to the tax imposed by this part on July 14, 1991, with respect to
the sale or purchase of any tangible personal property that was
exempt prior to the enactment of the act adding this section, with
respect to the following:
(1) The gross receipts from the sale of and the storage, use, or
other consumption in the state of tangible personal property if the
seller is obligated to furnish or the purchaser is obligated to
purchase, the property for a fixed price pursuant to a contract
entered into prior to July 15, 1991.
(2) A lease of tangible personal property that is a continuing
sale of the property for any period of time for which the lessor is
obligated to lease the property for an amount fixed by the lease
prior to July 15, 1991. For the purposes of this paragraph, the sale
or lease of tangible personal property shall be deemed not to
be obligated pursuant to a contract or lease for any period of
time for which any party to the contract or lease has the
unconditional right to terminate the contract or lease upon notice,
whether or not that right is exercised.
(3) The possession of, or the exercise of any right or power over,
tangible personal property under a lease that is a continuing
purchase of the property for any period of time for which the lessee
is obligated to lease the property for an amount fixed by a lease
entered into prior to July 15, 1991. For purposes of this paragraph,
the storage, use, or other consumption of, or possession of, or
exercise of any right or power over, tangible personal property shall
be deemed not to be obligated pursuant to a contract or lease for
any period of time for which any party to the contract or lease has
the unconditional right to terminate the contract or lease upon
notice, whether or not the right is exercised.
SEC. 617. Section 6902.3 of the Revenue and Taxation Code is
amended to read:
6902.3. Notwithstanding of Section 6902, a
refund of an overpayment of any tax, penalty, or interest collected
by the board by means of levy, through the use of liens, or by other
enforcement procedures, shall be approved if a claim for refund is
filed within three years of the date of overpayment.
SEC. 618. Section 9270 of the Revenue and Taxation Code is amended
to read:
9270. (a) An officer or employee of the board acting in
connection with any law administered by the board shall not knowingly
authorize, require, or conduct any investigation of, or surveillance
over, and any person for nontax
administration related purposes.
(b) Any person violating subdivision (a) shall be subject to
disciplinary action in accordance with the State Civil Service Act,
including dismissal from office or discharge from employment.
(c) This section shall not apply with respect to any otherwise
lawful investigation concerning organized crime activities.
(d) The provisions of this This
section are is not intended to
prohibit, restrict, or prevent the exchange of information
where if the person is being investigated for
multiple violations which that include
use fuel tax violations.
(e) For the purposes of this section:
(1) "Investigation" means any oral or written inquiry directed to
any person, organization, or governmental agency.
(2) "Surveillance" means the monitoring of persons, places, or
events by means of electronic interception, overt or covert
observations, or photography, and the use of informants.
SEC. 619. Section 11317 of the Revenue and Taxation Code is
amended to read:
11317. (a) An escape assessment shall be
entered on the current private railroad car tax record, and if this
is not the record for the year in which the property escaped
assessment, the entry shall be followed with "escape assessment for
year 19__". 20__." The property shall
be assessed at the same value and taxed at the same rate as it would
have been assessed and taxed had it not escaped.
(b) If the assessments are made as a result
of an audit which that discloses that
property assessed to the party audited has been incorrectly assessed
for a past tax year for which taxes have been paid and a claim for
refund is not barred by Section 11553, the tax refunds, including
applicable interest under Section 11555, resulting from the incorrect
assessments shall be an offset against proposed tax liabilities,
including accummulated accumulated
penalties and interest, resulting from escaped assessments for any
tax year covered by the audit. If the refunds exceed any proposed tax
liabilities, including penalties and interest, the excess shall be
processed in accordance with Section 11551.
(c) Beginning with the 1981-82 fiscal year,
assessments for the current year and escape assessments for prior
years shall be entered using a 100-percent assessment ratio and the
tax rates for years prior to the 1981-82 fiscal year shall be divided
by four.
SEC. 620. Section 11923 of the Revenue and Taxation Code is
amended to read:
11923. (a) Any tax imposed pursuant to this
part shall not apply to the making, delivering , or
filing of conveyances to make effective any plan of reorganization or
adjustment-- adjustment that is any of the
following:
(a)
(1) Confirmed under the Federal Bankruptcy Act, as
amended ; .
(b)
(2) Approved in an equity receivership proceeding in a
court involving a railroad corporation, as defined in
subdivision (m) of Section 205 101
of Title 11 of the United States Code, as amended ;
.
(c)
(3) Approved in an equity receivership proceeding in a
court involving a corporation, as defined in subdivision (3)
of Section 506 101 of Title
11 of the United States Code, as amended ; or
.
(d)
(4) Whereby a mere change in identity, form ,
or place of organization is effected.
Subdivisions (a) to (d), inclusive, of this section
(b) Subdivision (a) shall only
apply if the making, delivery , or filing of instruments
of transfer or conveyances occurs within five years from the date of
such the confirmation, approval ,
or change.
SEC. 621. Section 13153 of the Revenue and Taxation Code is
amended to read:
13153. On or before the April 1st
1 , the State Compensation Insurance Fund shall
pay into the State Treasury to the credit of the Insurance Tax Fund
the sum required under the provisions of Section
12203 of this code .
SEC. 622. Section 17052.6 of the Revenue and Taxation Code is
amended to read:
17052.6. (a) For each taxable year beginning on or after January
1, 2000, there shall be allowed as a credit against the "net tax"
(as , as defined in Section
17039) 17039, an amount determined in accordance
with Section 21 of the Internal Revenue Code, except that the amount
of the credit shall be a percentage, as provided in subdivision (b)
of the allowable federal credit without taking into account whether
there is a federal tax liability.
(b) For the purposes of subdivision (a), the percentage of the
allowable federal credit shall be determined as follows:
(1) For taxable years beginning before January 1, 2003:
The percentage
If the adjusted gross income of
is: credit is:
$40,000 or less.............. 63%
Over $40,000 but not over 53%
$70,000......................
Over $70,000 but not over 42%
$100,000.....................
Over $100,000................ 0%
(2) For taxable years beginning on or after January 1, 2003:
The percentage
If the adjusted gross income of
is: credit is:
$40,000 or less.............. 50%
Over $40,000 but not over 43%
$70,000......................
Over $70,000 but not over 34%
$100,000.....................
Over $100,000................ 0%
(c) In the case of a taxpayer whose credits provided under this
section exceed the taxpayer's tax liability computed under this part,
the excess shall be credited against other amounts due, if any, from
the taxpayer and the balance, if any, shall be paid from the Tax
Relief and Refund Account and refunded to the taxpayer.
(d) For purposes of this section, "adjusted gross income" means
adjusted gross income as computed for purposes of paragraph (2) of
subdivision (h) of Section 17024.5.
(e) The credit authorized by this section shall be limited, as
follows:
(1) Employment-related expenses, within the meaning of Section 21
of the Internal Revenue Code, shall be limited to expenses for
household services and care provided in this state.
(2) Earned income, within the meaning of Section 21(d) of the
Internal Revenue Code, shall be limited to earned income subject to
tax under this part. For purposes of this paragraph, compensation
received by a member of the armed forces for active services as a
member of the armed forces, other than pensions or retired pay, shall
be considered earned income subject to tax under this part, whether
or not the member is domiciled in this state.
(f) For purposes of this section, Section 21(b)(1) of the Internal
Revenue Code, relating to a qualifying individual, is modified to
additionally provide that a child (as , as
defined in Section 151(c)(3) of the Internal Revenue
Code) Code), shall be treated, for purposes of
Section 152 of the Internal Revenue Code (as
, as applicable for purposes of this
section) section , as receiving over one-half of
his or her support during the calendar year from the parent having
custody for a greater portion of the calendar year, that parent shall
be treated as a "custodial parent" (within
parent," within the meaning of Section 152(e) of the
Internal Revenue Code, as applicable for purposes of this
section) section , and the child shall be treated
as a qualifying individual under Section 21(b)(1) of the Internal
Revenue Code, as applicable for purposes of this section, if both of
the following apply:
(1) The child receives over one-half of his or her support during
the calendar year from his or her parents who never married each
other and who live lived apart at all
times during the last six months of the calendar year.
(2) The child is in the custody of one or both of his or her
parents for more than one-half of the calendar year.
(g) The amendments to this section made by the act adding
this subdivision Section 1.5 of Chapter 824 of the
Statutes of 2002 shall apply only to taxable years beginning on
or after January 1, 2002.
SEC. 623. Section 19191 of the Revenue and Taxation Code is
amended to read:
19191. (a) The Franchise Tax Board may enter into a voluntary
disclosure agreement with any qualified entity, qualified
shareholder, qualified member, or qualified beneficiary as defined in
Section 19192, that is binding on both the Franchise Tax Board and
the qualified entity, qualified shareholder, qualified member, or
qualified beneficiary.
(b) The Franchise Tax Board shall do all of the following:
(1) Provide guidelines and establish procedures for qualified
entities and their qualified shareholders, qualified members, or
qualified beneficiaries to apply for voluntary disclosure agreements.
(2) Accept applications on an anonymous basis from qualified
entities and their qualified shareholders, qualified members, or
qualified beneficiaries for voluntary disclosure agreements.
(3) Implement procedures for accepting applications for voluntary
disclosure agreements through the National Nexus Program administered
by the Multistate Tax Commission.
(4) For purposes of considering offers from qualified entities and
their qualified shareholders, qualified members, or qualified
beneficiaries to enter into voluntary disclosure agreements, take
into account the following criteria:
(A) The nature and magnitude of the qualified entity's previous
presence and activity in this state and the facts and circumstances
by which the nexus of the qualified entity or qualified shareholder,
qualified member, or qualified beneficiary's
beneficiary was established.
(B) The extent to which the weight of the factual circumstances
demonstrates that a prudent business person exercising reasonable
care would conclude that the previous activities and presence in this
state were or were not immune from taxation by this state by reason
of Public Law 86-272 or otherwise.
(C) Reasonable reliance on the advice of a person in a fiduciary
position or other competent advice that the qualified entity or
qualified shareholder, qualified member, or qualified beneficiary
activities were immune from taxation by this state.
(D) Lack of evidence of willful disregard or neglect of the tax
laws of this state on the part of the qualified entity or qualified
shareholder, qualified member, or qualified beneficiary.
(E) Demonstrations of good faith on the part of the qualified
entity.
(F) Benefits that will accrue to the state by entering into a
voluntary disclosure agreement.
(5) Act on any application of a voluntary disclosure agreement
within 120 days of receipt.
(6) Enter into voluntary disclosure agreements with qualified
entities, qualified shareholders, qualified members, or qualified
beneficiaries, as authorized in subdivision (a) and based on the
criteria set forth in paragraph (4).
(c) Before any
voluntary disclosure agreement becomes binding, the Franchise Tax
Board, itself, shall approve the agreement in the following manner:
(1) The Executive Officer and Chief Counsel of the Franchise Tax
Board shall recommend and submit the voluntary disclosure agreement
to the Franchise Tax Board for approval.
(2) Each voluntary disclosure agreement recommendation shall be
submitted in a manner as to maintain the anonymity of the taxpayer
applying for the voluntary disclosure agreement.
(3) Any recommendation for approval of a voluntary disclosure
agreement shall be approved or disapproved by the Franchise Tax
Board, itself, within 45 days of the submission of that
recommendation to the board.
(4) Any recommendation of a voluntary disclosure agreement that is
not either approved or disapproved by the board within 45 days of
the submission of that recommendation shall be deemed approved.
(5) Disapproval of a recommendation of a voluntary disclosure
agreement shall be made only by a majority vote of the Franchise Tax
Board.
(6) The members of the Franchise Tax Board shall not participate
in any voluntary disclosure agreement except as provided in this
subdivision.
(d) The voluntary disclosure agreement entered into by the
Franchise Tax Board and the qualified entity, qualified shareholder,
qualified member, or qualified beneficiary as provided for in
subdivision (a) shall to the extent applicable specify that:
(1) The Franchise Tax Board shall with respect to a qualified
entity, qualified shareholder, qualified member, or qualified
beneficiary, except as provided in paragraph (4), (6), or (9) of
subdivision (a) of Section 19192:
(A) Waive its authority under this part, Part 10 (commencing with
Section 17001), or Part 11 (commencing with Section 23001) to assess
or propose to assess taxes, additions to tax, fees, or penalties with
respect to each taxable year ending prior to six years from the
signing date of the voluntary disclosure agreement.
(B) With respect to each of the six taxable years ending
immediately preceding the signing date of the voluntary disclosure
agreement, based on its discretion, agree to waive any or all of the
following:
(i) Any penalty related to a failure to make and file a return, as
provided in Section 19131.
(ii) Any penalty related to a failure to pay any amount due by the
date prescribed for payment, as provided in Section 19132.
(iii) Any addition to tax related to an underpayment of estimated
tax, as provided in Section 19136.
(iv) Any penalty related to Section 6810 or subdivision (a) of
Section 8810 of the Corporations Code, as provided in Section 19141
of this code .
(v) Any penalty related to a failure to furnish information or
maintain records, as provided in Section 19141.5.
(vi) Any addition to tax related to an underpayment of tax imposed
under Part 11 (commencing with Section 23001), as provided in
Section 19142.
(vii) Any penalty related to a partnership required to file a
return under Section 18633, as provided in Section 19172.
(viii) Any penalty related to a failure to file information
returns, as provided in Section 19183.
(ix) Any penalty related to relief from contract voidability, as
provided in Section 23305.1.
(2) The qualified entity, qualified shareholder, qualified member,
or qualified beneficiary shall:
(A) With respect to each of the six taxable years ending
immediately preceding the signing date of the written agreement:
(i) Voluntarily and fully disclose on the qualified entity's
application all material facts pertinent to the qualified entity's,
shareholder's, member's, or beneficiary's liability for any taxes
imposed under Part 10 (commencing with Section 17001) or Part 11
(commencing with Section 23001).
(ii) Except as provided in paragraph (3), within 30 days from the
signing date of the voluntary disclosure agreement:
(I) File all returns required under this part, Part 10 (commencing
with Section 17001), or Part 11 (commencing with Section 23001).
(II) Pay in full any tax, interest, fee, and penalties
(other , other than those penalties
specifically waived by the Franchise Tax Board under the terms of the
voluntary disclosure agreement) agreement,
imposed under this part, Part 10 (commencing with Section
17001), or Part 11 (commencing with Section 23001) in a manner as may
be prescribed by the Franchise Tax Board. Paragraph (1) of
subdivision (f) of Section 25153 shall not apply to qualified
entities admitted into the voluntary disclosure program.
(B) Agree to comply with all franchise and income tax laws of this
state in subsequent taxable years by filing all returns required and
paying all amounts due under this part, Part 10 (commencing with
Section 17001), or Part 11 (commencing with Section 23001).
(3) The Franchise Tax Board may extend the time for filing returns
and paying amounts due to 120 days from the signing date of the
voluntary disclosure agreement.
(e) The amendments to this section made by Chapter 954 of the
Statutes of 1996 shall apply to taxable years beginning on or after
January 1, 1997.
(f) The amendments to this section made by Chapter 543 of the
Statutes of 2001 shall apply to voluntary disclosure agreements
entered into on or after January 1, 2002.
(G)
(g) The amendments to this section made by the
act adding this subdivision Chapter 543 of the
Statutes of 2001 shall apply to voluntary disclosure agreements
entered into on or after January 1, 2005.
SEC. 624. Section 20621 of the Revenue and Taxation Code is
amended to read:
20621. Each claimant applying for postponement under Article 2
(commencing with Section 20601) of this chapter
shall file a claim under penalty of perjury with the Controller on a
form supplied by the Controller. The claim shall contain all of
the following :
(a) Evidence acceptable to the Controller that the person was a
"senior citizen claimant", claimant
" or a "blind or disabled claimant."
(b) A statement showing the household income for the period set
forth in Section 20503.
(c) A statement describing the residential dwelling in a manner
as that the Controller may prescribe.
(d) The name of the county in which the residential dwelling is
located and the address of the residential dwelling.
(e) The county assessor's parcel number applicable to the property
for which the claimant is applying for the postponement of property
taxes.
(f) (1) Documentation evidencing the current
existence of any abstract of judgment, federal tax lien, or state
tax lien filed or recorded against the applicant, and any recorded
mortgage , or deed of trust which affect
that affects the subject residential dwelling,
for the purpose of determining that the claimant possesses a
20 percent 20- percent equity in the
subject residential dwelling as required by paragraph (1) of
subdivision (b) of Section 20583.
(2) Actual costs, not in excess of fifty
dollars ($50), paid by the claimant to obtain the documentation
shall, in the event the Controller issues a certificate of
eligibility, reduce the amount of the lien for the year, but not the
face amount of the payment prescribed in Section 16180 of the
Government Code .
(g) Other information required by the Controller to establish
eligibility.
SEC. 625. Section 23060 of the Revenue and Taxation Code is
amended to read:
23060. Provisions in other codes or General Law Statutes
which that are related to this part include all
of the following:
(a) Chapter 20.6 (commencing with Section 9891) of Division 3 of
the Business and Professions Code, relating to tax preparers.
(b) Sections 1502, 2204 to 2206, inclusive,
6210, 6810, 8210, and 8810 of the Corporations Code, relating to the
corporation officer statement penalty.
(c) Section 2104 of the Corporations Code, that prevents the
application of any provision of this part against any foreign lending
institution whose activities in this state are limited to those
described in subdivision (d) of Section 191(d)
191 of the Corporations Code.
(d) Sections 15700 to 15702.1, inclusive, of the Government Code,
relating to the Franchise Tax Board.
(e) Part 10 (commencing with Section 17001), relating to the
Personal Income Tax Law.
(f) Part 10.2 (commencing with Section 18401), relating to the
Administration of Franchise and Income Taxes.
(g) Part 10.7 (commencing with Section 21001), relating to the
Taxpayers' Bill of Rights.
(h) Part 18 (commencing with Section 38001), relating to the
Multistate Tax Compact.
SEC. 626. Section 23202 of the Revenue and Taxation Code is
amended to read:
23202. (a) In the case of a taxpayer which
who has been a transferee in a reorganization to which
Sections 23251 to 23254, inclusive (or , or
corresponding sections of prior laws)
laws , were applicable, there shall be allowed as a credit for
the taxable year of dissolution or withdrawal, the excess of the tax
paid over the minimum tax paid by prior transferors or by the
transferee as a transferor under Sections 23222 to 23224, inclusive
(or , or corresponding sections of
prior laws) laws , for the first
taxable year of the transferors which that
constituted a full 12 months of doing business and whose income
has been included in the measure of tax of a succeeding taxable
year.
(b) The credit allowable under this section shall be in addition
to any credit which that may be
allowable to the taxpayer under Section 23201. However, any credit
previously allowed under Section 2301 23201
, under this section , or for a year in
which the taxpayer or transferor ceased doing business, shall not be
allowed again in computing a credit under this section.
SEC. 627. Section 23305b of the Revenue and Taxation Code is
amended to read:
23305b. Notwithstanding the provisions of
Section 23305, the Franchise Tax Board may revive a corporation to
good standing without full payment of the taxes, penalties ,
and interest due if it determines that the revivor will improve
the prospects for collection of the full amount due. Such
This revivor may be limited as to time or may
limit the functions the revived corporation can perform, or both. The
corporate powers , rights, and privilege's
privileges may again be suspended or forfeited
if the Franchise Tax Board determines that the prospects for
collection of the full amount due have not been improved by the
revivor of the corporation.
SEC. 628. Section 32364 of the Revenue and Taxation Code is
amended to read:
32364. (a) If the board determines that the amount of tax,
interest, and penalties are sufficiently secured by a lien on other
property or that the release or subordination of the lien imposed
under this article will not jeopardize the collection of the amount
of the tax, interest, and penalties, the board may at any time
release all or any portion of the property subject to the lien from
the lien or may subordinate the lien to other liens and encumbrances.
(b) If the board finds that the liability represented by the lien
imposed under this article, including any interest acccrued
a ccrued thereon, is legally
unenforceable, the board may release the lien.
(c) A certificate by the board to the effect that any property has
been released from a lien or that the lien has been subordinated to
other liens and encumbrances is conclusive evidence that
such the property has been released or that the
lien has been subordinated as provided in the certificate.
SEC. 629. Section 32475 of the Revenue and Taxation Code is
amended to read:
32475. (a) At least 30 days prior to the filing or recording of
liens under Chapter 14 (commencing with Section 7150) or Chapter 14.5
(commencing with Section 7220) of Division 7 of Title 1 of the
Government Code, the board shall mail to the taxpayer a preliminary
notice. The notice shall specify the statutory authority of the board
for filing or recording the lien, indicate the earliest date on
which the lien may be filed or recorded, and state the remedies
available to the taxpayer to prevent the filing or recording of the
lien. In the event tax liens are filed for the same liability in
multiple counties, only one preliminary notice shall be sent.
(b) The preliminary notice required by this section shall not
apply to jeopardy determinations issued under Article 5 (commencing
with Section 32311) of Chapter 6.
(c) If the board determines that filing a lien was in error, it
shall mail a release to the taxpayer and the entity recording the
lien as soon as possible, but no later than seven days,
after this determination and receipt of lien recording information.
The release shall contain a statement that the lien was filed in
error. In the event the erroneous lien is obstructing a lawful
transaction, the board shall immediately issue a release of lien to
the taxpayer and the entity recording the lien.
(d) When the board releases a lien erroneously filed, notice of
that fact shall be mailed to the taxpayer and, upon the request of
the taxpayer, a copy of the release shall be mailed to the major
credit reporting companies in the county where the lien was filed.
(e) The board may release or subordinate a lien if the board
determines that the release or subordination will facilitate the
collection of the tax liability or will be in the best interest of
the state and the taxpayer.
SEC. 630. Section 41120 of the Revenue and Taxation Code is
amended to read:
41120. If any person is delinquent in the payment of the amount
required to be paid by him or in the event
her or if a determination has been made against him
which or her that remains unpaid, the board may,
not later than five years after the payment became delinquent, give
notice thereof personally or by first-class mail to all persons,
including any officer or department of the state or any political
subdivison subdivision or agency of the
state, having in their possession or under their control any credits
or other personal property belonging to the delinquent, or any
person against whom a determination has been made
which that remains unpaid ,
or owing any debts to the delinquent or such
that person. In the case of any state officer, department
, or agency, the notice shall be given to such
that officer, department , or agency
prior to the time it presents the claim of the delinquent to the
State Controller.
SEC. 631. Section 41176 of the Revenue and Taxation Code is
amended to read:
41176. (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 proceeding, 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 that
contributed to the damages.
(d) Whenever it appears to the court that the taxpayer's position
in the proceeding brought under subdivisions
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. 632. Section 45304 of the Revenue and Taxation Code is
amended to read:
45304. The board may decrease or increase the amount of the
determination before it becomes final, but the amount may be
increased only if a claim for the increase is asserted by the board
at or before the hearing. Unless the 25 percent
25- percent penalty imposed by subdivision (c)
of Section 45201 applies to the amount of the determination as
orginally originally made or as
increased, the claim for increase shall be asserted within eight
years after the date the amount of fee for the period for which the
increase is asserted was due.
SEC. 633. Section 45451 of the Revenue and Taxation Code is
amended to read:
45451. (a) If any person fails to pay any amount imposed pursuant
to this part at the time that it becomes due and payable, the amount
thereof, including penalties and interest, together with any costs
in addition thereto, shall thereupon be a perfected and enforceable
state tax lien. A lien is subject to Chapter 14 (commencing with
Section 7150 7150) of Division 7 of
Title 1 of the Government Code.
(b) For the purpose of this section, amounts are due and payable
on the following dates:
(1) For amounts disclosed on a report received by the board before
the date the return is delinquent, the date the amount would have
been due and payable.
(2) For amounts disclosed on a report filed on or after the date
the return is delinquent, the date the return is received by the
board or the year following the fee due date pursuant to Section
45151, whichever is later.
(3) For amounts determined under Section 45351, pertaining to
jeopardy assessments, the date the notice of the board's finding is
mailed or issued.
(4) For all other amounts, the date the assessment is final.
SEC. 634. Section 45872 of the Revenue and Taxation Code is
amended to read:
45872. (a) If any officer or employee of the board recklessly
disregards board-published procedures, a fee payer 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 proceeding, 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 that
contributed to the damages.
(d) Whenever it appear appears to
the court that the fee payer'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. 635. Section 46442 of the Revenue and Taxation Code is
amended to read:
46442. (a) Notice of the sale, and the time and place thereof,
shall be given to the delinquent feepayer and to all persons who have
an interest of record in the property at least 20 days before the
date set for the sale in the following manner: The notice shall be
personally served or enclosed in an envelope addressed to the
feepayer or other person at his or her last known residence or place
of business in this state as it appears upon the records of the
board, if any, and depositing it deposited
in the United States registered mail, postage prepaid. The
notice shall be published pursuant to Section 6063 of the Government
Code in a newspaper of general circulation published in the city in
which the property or a part thereof is situated if any part hereof
is situated in a city or, if not, in a newspaper of general
circulation published in the county in which the property or a part
thereof is located. Notice shall also be posted in both of the
following manners:
(1) One public place in the city in which the interest in property
is to be sold if it is to be sold in a city or, if not to be sold in
a city, one public place in the county in which the interest in the
property is to be sold.
(2) One conspicuous place on the property.
(b) The notice shall contain a description of the property to be
sold, a statement of the amount due, including fees, interest,
penalties, and costs, the name of the feepayer, and the further
statement that unless the amount due is paid on or before the time
fixed in the notice of the sale, the property, or so much thereof as
may be necessary, will be sold in accordance with law and the notice.
SEC. 636. Section 50124 of the Revenue and Taxation Code is
amended to read:
50124. (a) If the board detemines
determines that the amount of any fees, interest, and penalties
are sufficiently secured by a lien on other property or that the
release or subordination of the lien imposed under this article will
not jeopardize the collection of the amount of the fee
fees and penalties, the board may at any time
release all, or any portion of, the property subject to the lien from
the lien or may subordinate the lien to other liens and
encumbrances.
(b) If the board finds the liability represented by the lien
imposed under this article is legally unenforceable, the board may
release the lien.
(c) A certificate by the board that any property has been released
from a lien or that the lien has been subordinated to other liens
and encumbrances is conclusive evidence that the property has been
released or that the lien has been subordinated, as provided in the
certificate.
SEC. 637. Section 50145 of the Revenue and Taxation Code is
amended to read:
50145. Within 90 days after the mailing of the notice of the
board's action upon a claim for refund or credit, the claimant may
bring an action against the board, on the grounds set forth in the
claim, in a court of competent jurisdiciton
jurisdiction in the County of Sacramento for the recovery of
the whole, or any part of, the amount with respect to which the claim
has been disallowed.
SEC. 638. Section 156.3 of the Streets and Highways Code is
amended to read:
156.3. For any project using state or federal transportation
funds programmed after January 1, 2006, the department shall
insure ensure that, if the project affects a
stream crossing on a stream where anadromous fish are, or
historically were, found, an assessment of potential barriers to fish
passage is done prior to commencing project design. The department
shall submit the assessment to the Department of Fish and Game and
add it to the CALFISH database. If any structural barrier to passage
exists, remediation of the problem shall be designed into the project
by the implementing agency. New projects shall be constructed so
that they do not present a barrier to fish passage. When barriers to
fish passage are being addressed, plans and projects shall be
developed in consultation with the Department of Fish and Game.
SEC. 639. Section 188.6 of the Streets and Highways Code is
amended to read:
188.6. (a) (1) The Legislature finds and declares that on August
16, 2004, the department reported to the Legislature that the funds
identified in Section 188.5 are insufficient to complete the state
toll bridge seismic retrofit program, including the replacement of
the east span of the San Francisco-Oakland Bay Bridge, due to cost
overruns for the program now estimated at three billion six hundred
million dollars ($3,600,000,000).
(2) By enacting this section, it is the intent of the Legislature
to identify additional funds from various sources, as described in
subdivision (b), in order to fund this shortfall and so that the toll
bridge seismic retrofit and replacement program, as described in
Section 188.5, as that section read on January 1, 2005, may proceed
to completion without further costly delay.
(b) The following amounts from the following funds shall be
allocated until expended in order to eliminate the shortfall
identified in subdivision (a) and to complete the seismic retrofit or
replacement of state-owned toll bridges as expeditiously as
possible:
(1) Not less than two billion one hundred fifty million dollars
($2,150,000,000) from the Bay Area Toll Account, derived from an
additional one dollar ($1) surcharge on the state-owned toll bridges
within the geographic jurisdiction of the Metropolitan Transportation
Commission to be effective no sooner than January 1, 2007.
(2) Not
less than eight hundred twenty million dollars ($820,000,000) for the
seismic retrofit or replacement of the state-owned toll bridges in
the geographic jurisdiction of the Metropolitan Transportation
Commission made available through the consolidation of all toll
revenues under the management of the Bay Area Toll Authority and from
the authorization for the authority to refinance debt secured by
toll revenues.
(3) The amount of three hundred million dollars ($300,000,000) to
fund the cost of demolition of the existing east span of the San
Francisco-Oakland Bay Bridge from funding sources supporting the
state highway operations and protection program, from available state
resources from transportation project savings, or from the federal
Highway Bridge Replacement and Rehabilitation Program.
(4) The amount of three hundred thirty million dollars
($330,000,000) from the following accounts:
(A) One hundred thirty million dollars ($130,000,000) from the
State Highway Account from accumulated savings by the department
achieved from better efficiency, operational savings, and lower
costs.
(B) One hundred twenty-five million dollars ($125,000,000) of any
excess funds that would otherwise have been transferred in the
2006-07 fiscal year pursuant to subparagraph (F) of paragraph (1) of
subdivision (a) of Section 7102 of the Revenue and Taxation Code, as
amended by Senate Bill 62 or Assembly Bill 127 of the
2005-06 Regular Session Chapter 76 of the Statutes of
2005 , shall instead be transferred to the Bay Area Toll
Account and are hereby appropriated to the department for the
purposes of this section. If sufficient funds are not available from
this source for this purpose during the 2006-07 fiscal year, the
funding required under this paragraph shall be made available from
additional accumulated savings by the department achieved from better
efficiency, operational savings, or lower costs pursuant to
subparagraph (A), or from the federal Highway Bridge Replacement and
Rehabilitation Program or the State Highway Account, as determined by
the department in consultation with, and with approval of, the
California Transportation Commission.
(C) Seventy-five million dollars ($75,000,000) from the fund
reserve in the Motor Vehicle Account for the 2005 -06 fiscal year
, which is hereby appropriated.
(c) If the amount of the overruns estimated by the department, as
described in subdivision (a), is less than three billion six hundred
million dollars ($3,600,000,000), the savings shall be shared between
the state and the authority in the same proportion as their
proportional contribution to the estimated cost overruns, as provided
in paragraphs (1), (3), and (4) of subdivision (b).
(d) If the actual amount of the overruns exceeds the amount
estimated by the department, as described in subdivision (a), the
authority shall utilize funds generated under the powers granted to
it in Sections 30886, 30950.2, 30954, 30961, and 31011 by
the act adding this section in the 2005-06 Regular Session
to provide additional financial resources to complete the state toll
bridge seismic retrofit program.
(e) Funds made available under this section and Section 188.5 for
the replacement of the east span of the San Francisco-Oakland Bay
Bridge shall only be expended for the structure described in
paragraph (9) of subdivision (b) of Section 188.5 as that section
read on January 1, 2005.
SEC. 640. Section 2117 of the Streets and Highways Code is amended
to read:
2117. (a) Whenever a school district
constructs a school building for which any apportionment is made
pursuant to Chapter 6 4 (commencing
with Section 15700) or Chapter 8 6
(commencing with Section 16000) of Part 10 of the Education Code, and
the city or county in which the school building is situated requires
the construction of any street or road connected with the school
premises on which the school building is constructed, the State
Allocation Board shall review the requirement and recommend to the
governing body of the city or county a plan of construction adequate
to meet the needs of the school district and the safety of the
public. If a different plan of improvement or improvement to higher
standards than that recommended by the State Allocation Board is
required by the governing body of the city or county, the additional
cost thereof shall be borne by the city or county in which the school
building is situated. Notwithstanding any other provision of this
code or any other law limiting the purposes for which money
apportioned to cities or counties from the Highway Users Tax Account
in the Transportation Tax Fund may be expended, any of the
money moneys so apportioned may be expended for
the construction of the streets or roads referred to in this section.
(b) Nothing in this section requires each
cost item included in any charge made pursuant to this section to be
separately stated.
SEC. 641. Section 6491.5 of the Streets and Highways Code is
amended to read:
6491.5. Upon receipt of the application and fee, the street
superintendent shall determine, or cause to be determined, an
apportionment of the unpaid assessment to each separate part of the
original lot or parcel of land, as if the lot or parcel of land
had been so divided at the time the original assessment was
made.
SEC. 642. Section 30162 of the Streets and Highways Code is
amended to read:
30162. If the department is unable to collect any tolls due to
insolvency of the obligor, or if the cost of collection of any tolls
would be excessive by reason of the smallness of the amount due, the
department may apply to the State Board of Control
California Victim Compensation and Government Claims Board
for discharge from accountability for the collection thereof in
the manner provided in Sections 13940 to 13943, inclusive, of the
Government Code.
SEC. 643. Section 1222 of the Unemployment Insurance Code is
amended to read:
1222. Within 30 days of service of any notice of assessment or
denial of claim for refund or credit under Sections
Section 803, 821, or 991, or of any notice under
Sections 704.1, 1035, 1055, 1127.5, 1131, 1142, 1143, 1144, 1180,
1184, 1733, and 1735, any employing unit or other person given the
notice, or any employing unit affected by a granting or denial of a
transfer of reserve account, may file a petition for review or
reassessment with an administrative law judge. The administrative law
judge may for good cause grant an additional 30 days for the filing
of a petition. If a petition for reassessment is not filed within the
30-day period, or within the additional period granted by the
administrative law judge, an assessment is final at the expiration of
the period. If a petition for review of a termination of elective
coverage under Section 704.1 is not filed within the 30-day period,
or within the additional period granted by the administrative law
judge, the termination is final at the expiration of the period. If
the director fails to serve notice of his or her action within 60
days after a claim for refund or credit is filed, the person or
employing unit may consider the claim denied and file a petition with
an administrative law judge.
SEC. 644. Section 1256.5 of the Unemployment Insurance Code is
amended to read:
1256.5. (a) An individual shall be deemed
to have left his or her most recent work with good cause if the
director finds that he or she leaves employment because of sexual
harassment , provided if the individual
has taken reasonable steps to preserve the working relationship. No
steps shall be required if the director finds it would have been
futile. For purposes of this subdivision, unwelcome sexual advances,
requests for sexual favors, and other verbal, visual, or physical
conduct of a sexual nature constitutes sexual harassment when any of
the following occur:
(1) Submission to the conduct is made either explicitly or
implicitly a term or condition of an individual's employment.
(2) Submission to or rejection of the conduct by an individual is
used as the basis for employment decisions affecting the individual.
(3) The conduct has the purpose or effect of unreasonably
interfering with an individual's work performance or creating an
intimidating, hostile, or offensive working environment.
(b) Findings of fact and law by the director
shall not collaterally estop adjudication of the issue of sexual
harassment in another forum.
SEC. 645. Section 1262 of the Unemployment Insurance Code is
amended to read:
1262. An individual is not eligible for unemployment compensation
benefits, and no such benefit these benefits
shall not be payable to him or her , if
he the individual left his or her
work because of a trade dispute. Such
The individual shall remain ineligible for the period during
which he or she continues out of work by reason of the
fact that the trade dispute is still in active progress in the
establishment in which he or she was employed.
SEC. 646. Section 1855 of the Unemployment Insurance Code is
amended to read:
1855. (a) A civil action may be commenced at the request of the
director in the name of the State of California to enjoin any
individual or entity from conduct which that
, by solicitation, sale, or advertising, is inducing or
otherwise attempting to persuade employers or employees, or potential
employers or employees, to violate this code or to otherwise attempt
to evade contributions or taxes provided for under this code by
scheme, device, or similar activity. Any action under this section
shall be brought in the Superior Court of the County of Sacramento or
in the superior court of the county in which that individual or
entity resides, has its principal place of business , or
has engaged in conduct subject to penalty under this code.
(b) In any action under subdivision (a), the court may enjoin the
person from engaging in the conduct or in any other activity
specified in subdivision (a), if the court finds both of the
following:
(1) That the person has engaged in any conduct specified in
subdivision (a).
(2) That injunctive relief is appropriate to prevent recurrence of
that conduct.
(c) For purposes of the civil action referred to in
paragraphs subdivisions (a) and (b), the court
may issue without bond, a temporary restraining order upon the filing
of a statement, certified by the director, which contains
all both of the following:
(1) That a determination has been made that the individual or
entity is engaging in conduct described in subdivision (a),
accompanied by a detailed description of the reasons for the
determination.
(2) That the activity of the individual or entity will result in
the nonpayment of contributions or taxes required under this code and
that the contributions or taxes would be otherwise payable.
(c)
(d) The director shall provide the court clerk with an
exact copy of the certified statement upon filing, which copy will be
endorsed or certified by the court clerk and returned to the
director, along with a certified copy of the court's order. From the
time of service of the endorsed or certified copy of the statement
and order, that individual or entity shall be temporarily restrained
from the activity set forth in the statement. That temporary
restraining order will continue in effect unless dissolved after a
hearing on a preliminary injunction in the Superior Court of
Sacramento County or the county in which the individual or entity
resides, is has its place of business,
or has engaged in the conduct specified in the statement. That
hearing or preliminary injunction shall be held under the rules of
the superior court.
SEC. 647. Section 3254.5 of the Unemployment Insurance Code is
amended to read:
3254.5. A voluntary plan in force and effect at the time a
successor employing unit acquires the organization, trade, or
business, or substantially all the assets thereof, or a distinct and
severable portion of the organization, trade, or business, and
continues its operation without substantial reduction of personnel
resulting from the acquisition, shall not withdraw without specific
request for withdrawal thereof. The successor employing unit and the
insurer shall be deemed to have consented to the provisions of the
plan unless written request for withdrawal, effective as of the date
of acquisition, is transmitted to the Director of Employment
Development, by the employer or the insurer, within 30 days after the
acquisition date, or within 30 days after notification from the
Director of Employment Development that the plan is to continue,
whichever is later. Unless the plan is withdrawn as of the date of
acquisition by the successor employer or the insurer, a written
request for withdrawal shall be effective only on the anniversary of
the effective date of the plan next occurring on or after the date of
acquisition, except that the plan may be withdrawn on the operative
date of any law increasing the benefit amounts provided by Sections
2653 and 2655 or the operative date of any change in the rate of
worker contributions as determined by Section 984, if notice of the
withdrawal of the plan is transmitted to the Director of Employment
Development not less than 30 days prior to the operative date of law
or change. If the plan is not withdrawn on 30 days' notice because of
the enactment of a law increasing benefits or because of a change in
the rate of worker contributions as determined by Section 984, the
plan shall be amended to conform to the increase or change
on the operative date of the increase or change. Promptly ,
upon notice of change in ownership , any insurer of
a plan shall prepare and issue policy forms and amendments as
required, unless the plan is withdrawn. Nothing herein
contained in this section shall prevent future
withdrawal of any plans on an anniversary of the effective date of
the plan upon 30 days' notice, except that the plan may be withdrawn
on the operative date of any law increasing the benefit amounts
provided by Sections 2653 and 2655 or the operative date of any
change in the rate of worker contributions as determined by Section
984, if notice of the withdrawal of the plan is transmitted to the
Director of Employment Development not less than 30 days prior to the
operative date of the law or change. If the plan is not
withdrawn on 30 days' notice because of the enactment of a law
increasing benefits or because of a change in the rate of worker
contributions as determined by Section 984, the plan shall be amended
to conform to the increase or change on the operative
date of the increase or change.
SEC. 648. Section 4701 of the Unemployment Insurance Code is
amended to read:
4701. (a) (1) Any employer who is entitled
under Section 4654 to notice of the filing of an application or
additional claim and who, within 10 days after mailing of the notice,
submits to the department any facts within its possession disclosing
whether the individual left the most recent employment with the
employer voluntarily and without good cause or was discharged from
the employment for misconduct connected with his or her work, or
whether the claimant was a student employed on a temporary basis and
whose employment began within, and ended with his or her leaving to
return to school at the close of, his or her vacation period, or
whether the claimant left the employer's employ to accompany his or
her spouse to or join her or him at a place from which it is
impractical to commute to the employment, to which a transfer of the
claimant by the employer is not available or whether the claimant's
discharge or quit from his or her most recent employer was the result
of an irresistable irresistible
compulsion to use or consume intoxicants including alcoholic
beverages, shall be entitled to a ruling as prescribed by this
section. The period during which the employer may submit these facts
may be extended by the director for good cause.
(2) For purposes of this section, "spouse"
includes a person to whom marriage is imminent.
(b) The department shall consider the facts together with any
information in its possession. If the employer is entitled to a
determination pursuant to Section 4655, the department shall promptly
issue to the employer its ruling as to the cause of the termination
of the individual's most recent employment. The employer may appeal
from a ruling or reconsidered ruling to an administrative law judge
within 20 days after mailing or personal service of notice of the
ruling or reconsidered ruling. The 20-day period may be extended for
good cause, which shall include, but not be limited to, mistake,
inadvertence, surprise, or excusable neglect. The director shall be
an interested party to any appeal. The department may for good cause
reconsider any ruling or reconsidered ruling within either five days
after the date an appeal to an administrative law judge is filed or,
if no appeal is filed, within 20 days after mailing or personal
service of notice of the ruling or reconsidered ruling, except that
any ruling or reconsidered ruling which that
relates to a determination which that
is reconsidered pursuant to subdivision (a) of Section 1332 may
also be reconsidered by the department within the time provided for
reconsideration of that determination.
(c) For purposes of this section only, if the claimant voluntarily
leaves the employer's employ without notification to the employer of
the reasons therefor, and if the employer submits all of the facts
within its possession concerning the leaving within the applicable
time period referred to in this section, the leaving shall be
presumed to be without good cause.
(d) An individual whose employment is terminated under the
compulsory retirement provisions of a collective-bargaining agreement
to which the employer is a party shall not be deemed to have
voluntarily left his or her employment without good cause.
(e) Rulings under this section shall have the effect prescribed by
Section 1032.
SEC. 649. Section 9608 of the Unemployment Insurance Code is
amended to read:
9608. The director shall, within each community employment
development center, establish an intake system to appraise the
individual needs of applicants. Each community employment development
center shall provide the following services:
(a) Job referral and labor market information services to
applicants who are occupationally competitive and qualified by
training or experience in the labor market. These applicants shall be
encouraged to utilize self-help services.
(b) Employment exploration and job development services to
applicants who are employable but need some directed assistance in
planning an effective job search or coping with minor barriers to
employment. Employment exploration and job development services are
designed as follows :
(1) To prepare groups of applicants to use job referral and
information services by instructing them in job finding techniques
and how to initiate their own job search.
(2) To assist applicants directly by developing job opportunities.
(3) To provide, as necessary, usually on a one-time basis, the
following services:
(A) Contacting an employer to explain an applicant's
qualifications or limitations, such as a disability not affecting
ability to work, in relation to requirements for a particular job and
arranging an interview.
(B) A more thorough appraisal of the applicant's capabilities and
desires in relation to the job market than is required of an
applicant seeking only job referral and labor market information.
(4) To arrange for short-term supplemental services.
(c) Individual employability development and placement services to
applicants who are potentially employable but are in need of more
intensive services before becoming employable because they
are have vocational barriers due to disability, lack of
skills, obsolescence of job skills, limited education, or poor work
habits and attitudes. Intensive employability services shall be
provided by case-responsible persons to applicants where
case-responsible persons are assigned.
(d) Through case managers or case-responsible persons, case
services to applicants to the extent funds are available. Case
services funds may be made available for services to the
disadvantaged. "Case services" means an applicant's expenses
necessary for or incident to training or employability development
and includes, but is not limited to, the following:
(1) Medical and dental treatment necessary for employability.
(2) Temporary child care.
(3) Transportation costs.
(4) Wearing apparel.
(5) Books and supplies.
(6) Tools and safety equipment.
(7) Union fees.
(8) Business license fees.
SEC. 650. 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) 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.
Provide In addition, 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 Business, Transportation
and Housing Agency.
SEC. 651. Section 13002 of the Unemployment Insurance Code is
amended to read:
13002. The following provisions of this code shall apply to any
amount required to be deducted, reported, and paid to the department
under this division:
(1)
(a) Sections 301, 305, 306, 310, 311, 312, 317, and
318, relating to general administrative powers of the department.
(2)
(b) Sections 403 to 413, inclusive, Section 1336, and
Chapter 8 (commencing with Section 1951) of Part 1 of Division 1,
relating to appeals and hearing procedures.
(3)
(c) Sections 1110.6, 1111, 1111.5, 1112, 1113, 1113.1,
1114, 1115, 1116, and 1117 , relating to the making of
returns or the payment of reported contributions.
(4)
(d) Article 8 (commencing with Section 1126) of Chapter
4 of Part 1 of Division 1, relating to assessments.
(5)
(e) Article 9 (commencing with Section 1176), except
Section 1176, of Chapter 4 of Part 1 of Division 1, relating to
refunds and overpayments.
(6)
(f) Article 10 (commencing with Section 1206) of
Chapter 4 of Part 1 of Division 1, relating to notice.
(7)
(g) Article 11 (commencing with Section 1221) of
Chapter 4 of Part 1 of Division 1, relating to administrative
appellate review.
(8)
(h) Article 12 (commencing with Section 1241) of
Chapter 4 of Part 1 of Division 1, relating to judicial review.
(9)
(i) Chapter 7 (commencing with Section 1701) of Part 1
of Division 1, relating to collections.
(10)
(j) Chapter 10 (commencing with Section 2101) of Part 1
of Division 1, relating to violations.
SEC. 652. Section 13021 of the Unemployment Insurance Code is
amended to read:
13021. (a) Every employer required to withhold any tax under
Section 13020 shall for each calendar quarter, whether or not wages
or payments are paid in the quarter, file a withholding report and a
report of wages in a form prescribed by the department, and pay over
the taxes so required to be withheld. The report of wages shall
include individual amounts required to be withheld under Section
13020 or withheld under Section 13028. Except as provided in
subdivisions (c) and (d) of this section , the
employer shall file a withholding report and remit the total amount
of income taxes withheld during the calendar quarter on or before the
last day of the month following the close of the calendar quarter.
(b) Every employer electing to file a single annual return under
subdivision (d) of Section 1110 shall report and pay any taxes
withheld under Section 13020 on an annual basis within the time
specified in subdivision (d) of Section 1110.
(c) (1) Effective January 1, 1995, whenever an employer is
required, for federal income tax purposes, to remit the total amount
of withheld federal income tax in accordance with Section 6302 of the
Internal Revenue Code and regulations thereunder, and the
accumulated amount of state income tax withheld is more than five
hundred dollars ($500), the employer shall remit the total amount of
income tax withheld for state income tax purposes within the number
of banking days as specified for withheld federal income taxes by
Section 6302 of the Internal Revenue Code, and regulations
thereunder.
(2) Effective January 1, 1996, the five hundred dollar ($500)
amount referred to in paragraph (1) shall be adjusted annually as
follows, based on the annual average rate of interest earned on the
Pooled Money Investment Fund as of June 30 in the prior fiscal year:
Average Rate of Interest
Greater than or equal to 9 percent: $ 75
Less than 9 percent, but greater
than or equal
to 250
7 percent:
Less than 7 percent, but greater than
or equal
to 400
4 percent:
Less than 4 percent: 500
(d) (1) Notwithstanding subdivisions (a) and (c), for calendar
years beginning prior to January 1, 1995, if in the 12-month period
ending June 30 of the prior year the cumulative average payment made
pursuant to this division or Section 1110, for eight-monthly
eight-month periods, as defined under Section
6302 of the Internal Revenue Code and regulations thereunder, was
fifty thousand dollars ($50,000) or more, the employer shall remit
the total amount of income tax withheld within three banking days
following the close of each eight-monthly
eight-month period, as defined by Section 6302 of the Internal
Revenue Code and regulations thereunder. For purposes of this
subdivision, payment shall be made by electronic funds transfer in
accordance with Section 13021.5, for one calendar year beginning on
January 1. Payment is deemed complete on the date the electronic
funds transfer is initiated , if settlement to the
state's demand account occurs on or before the banking day following
the date the transfer is initiated. If settlement to the state's
demand account does not occur on or before the banking day following
the date the transfer is initiated, payment is deemed complete on the
date settlement occurs. The department shall, on or before October
31 of the prior year, notify all employers required to make payment
by electronic funds transfer of these requirements.
(2) Notwithstanding subdivisions (a) and (c), for calendar years
beginning on or after January 1, 1995, if in the 12-month period
ending June 30 of the prior year, the cumulative average payment made
pursuant to this division or Section 1110 for any deposit periods,
as defined under Section 6302 of the Internal Revenue Code and
regulations thereunder, was twenty thousand dollars ($20,000) or
more, the employer shall remit the total amount of income tax
withheld within the number of banking days as specified for federal
income taxes by Section 6302 of the Internal Revenue Code and
regulations thereunder. For purposes of this subdivision, payment
shall be made by electronic funds transfer in accordance with Section
13021.5, for one calendar year beginning on January 1. Payment is
deemed complete on the date the electronic funds transfer is
initiated , if settlement to the state's demand
account occurs on or before the banking day following the date the
transfer is initiated. If settlement to the state's demand account
does not occur on or before the banking day following the date the
transfer is initiated, payment is deemed complete on the date
settlement occurs. The department shall, on or before October 31 of
the prior year, notify all employers required by this paragraph to
make payments by electronic funds transfer of these requirements.
(3) Notwithstanding paragraph (2), effective January 1, 1995,
electronic funds transfer payments that are subject to the one-day
deposit rule, as defined by Section 6302 of the Internal Revenue Code
and regulations thereunder, shall be deemed timely if the payment
settles to the state's demand account within three banking days after
the date the employer meets the threshold for the one-day deposit
rule.
(4) Any taxpayer required to remit payments pursuant to paragraphs
(1) and (2) may request from the department a waiver of those
requirements. The department may grant a waiver only if it determines
that the particular amounts paid in excess of fifty thousand dollars
($50,000) or twenty thousand dollars ($20,000), as stated in
paragraphs (1) and (2), respectively, were the result of an
unprecedented occurrence for that employer, and were not
representative of the employer's cumulative average payment in prior
years.
(5) Any state agency required to remit payments pursuant to
paragraphs (1) and (2) may request a waiver of those requirements
from the department. The department may grant a waiver if it
determines that there will not be a negative impact on the interest
earnings of the General Fund. If there is a negative impact to the
General Fund, the department may grant a waiver if the requesting
state agency follows procedures designated by the department to
mitigate the impact to the General Fund.
(e) Any employer not required to make payment pursuant to
subdivision (d) of this section may elect to make payment by
electronic funds transfer in accordance with Section 13021.5 under
the following conditions:
(1) The election shall be made in a form, and shall contain
information, as prescribed by the director, and shall be subject to
approval by the department.
(2) If approved, the election shall be effective on the date
specified in the notification to the employer of approval.
(3) The election shall be operative from the date specified in the
notification of approval, and shall continue in effect until
terminated by the employer or the department.
(4) Funds remitted by electronic funds transfer pursuant to this
subdivision shall be deemed complete in accordance with subdivision
(d) or as deemed appropriate by the director to encourage use of this
payment method.
(f) Notwithstanding Section 1112, no interest or penalties shall
be assessed against any employer who remits at least 95 percent of
the amount required by subdivision (c) or (d) , provided
that if the failure to remit the full amount is
not willful and any remaining amount due is paid with the next
payment. The director may allow any employer to submit the amounts
due from multiple locations upon a showing that those submissions are
necessary to comply with the provisions of
subdivision (c) or (d).
(g) The department may, if it believes that action is necessary,
require any employer to make the report required by this section and
pay to it the tax deducted and withheld at any time, or from time to
time but no less frequently than provided for in subdivision (a).
(h) Any employer required to withhold any tax and who is not
required to make payment under subdivision (c) shall remit the total
amount of income tax withheld during each month of each calendar
quarter, on or before the 15th day of the subsequent month if the
income tax withheld for any of the three months or, cumulatively for
two or more months, is three hundred fifty dollars ($350) or more.
(i) For purposes of subdivisions (a), (c), and (h), payment is
deemed complete when it is placed in a properly addressed envelope,
bearing the correct postage, and it is deposited in the United States
mail.
(j) In addition to the withholding report and report of wages
described in subdivision (a), each employer shall file with the
director an annual reconciliation return showing the amount required
to be withheld under Section 13020, and any other information the
director shall prescribe. This annual reconciliation return shall be
due on the first day of January following the close of the prior
calendar year and shall become delinquent if not filed on or before
the last day of that month.
SEC. 653. Section 1671 of the Vehicle Code is amended to read:
1671. (a) The established place of business of a dealer,
remanufacturer, remanufacturer branch, manufacturer, manufacturer
branch, distributor, distributor branch, automobile driving school,
or traffic violator school shall have an office and a dealer,
manufacturer, or remanufacturer shall also have a display or
manufacturing area situated on the same property where the business
peculiar to the type of license issued by the department is or may be
transacted. When a room or rooms in a hotel, roominghouse, apartment
house building, or a part of any single- or multiple-unit dwelling
house is used as an office or offices of an established place of
business, the room or rooms shall be devoted exclusively to and
occupied for the office or offices of the dealer, manufacturer,
manufacturer branch, remanufacturer, remanufacturer branch,
distributor, distributor branch, automobile driving school, or
traffic violator school, shall be located on the ground floor, and
shall be so constructed as to provide a direct entrance into the room
or rooms from the exterior of the building. A dealer who does not
offer new or used vehicles for sale at retail, a dealer who has been
issued an autobroker's endorsement to his or her dealer's license and
who does not also sell motor vehicles at retail, or a dealer who is
a wholesaler involved for profit only in the sale of vehicles between
licensed dealers, shall have an office, but a display area is not
required.
(b) The established place of business of an automobile dismantler
shall have an office and a dismantling area located in a zone
property properly zoned for that
purpose by the city or county.
SEC. 654. Section 2423 of the Vehicle Code is amended to read:
2423. In approving the additional instruction and training
required under subdivision (b) of Section 680, the department shall
consider the requirements of Article 4
Chapter 3 (commencing with Section 40080) of Chapter 6
of Part 23 of Division 3 of Title 2
23.5 of the Education Code, as those provisions relate to
instruction and training requirements for schoolbus drivers and
school pupil activity bus drivers.
SEC. 655. Section 11713.1 of the Vehicle Code is amended to read:
11713.1. It is a violation of this code for the holder of any
dealer's license issued under this article to do any of the
following:
(a) Advertise any specific vehicle for sale without identifying
the vehicle by its model, model-year, and either its license number
or that portion of the vehicle identification number that
distinguishes the vehicle from all other vehicles of the same make,
model, and model-year. Model-year is not required to be advertised
for current model-year vehicles. Year models are no longer current
when ensuing year models are available for purchase at retail in
California. Any advertisement that offers for sale a class of new
vehicles in a dealer's inventory, consisting of five or more
vehicles, that are all of the same make, model, and model-year is not
required to include in the advertisement the vehicle identification
numbers or license numbers of those vehicles.
(b) Advertise the total price of a vehicle without including all
costs to the purchaser at time of sale, except taxes, vehicle
registration fees, the California tire fee, as defined in Section
42885 of the Public Resources Code, emission testing fees not
exceeding fifty dollars ($50), actual fees charged for certificates
pursuant to Section 44060 of the Health and Safety Code, finance
charges, and any dealer document preparation charge. The dealer
document preparation charge shall not exceed forty-five dollars
($45).
(c) (1) Exclude from an advertisement of a vehicle for sale that
there will be added to the advertised total price at the time of
sale, charges for sales tax, vehicle registration fees, the
California tire fee, the fee charged by the state for the issuance of
any certificate of compliance or noncompliance pursuant to any
statute, finance charges, and any dealer document preparation charge.
(2) The obligations imposed by paragraph (1) shall be satisfied by
adding to the advertisement a statement containing no abbreviations
and that is worded in substantially the following form: "Plus
government fees and taxes, any finance charges, any dealer document
preparation charge, and any emission testing charge."
(3) For purposes of paragraph (1), "advertisement" means any
advertisement in a newspaper, magazine, or direct mail publication
that is two or more columns in width or one column in width and more
than seven inches in length, or on any Web page of a dealer's Web
site that displays the price of a vehicle offered for sale on the
Internet, as that term is defined in paragraph (6) of subdivision (e)
of Section 17538 of the Business and Professions Code.
(d) Represent the dealer document preparation charge or
certificate of compliance or noncompliance fee, as a governmental
fee.
(e) Fail to sell a vehicle to any person at the advertised total
price, exclusive of taxes, vehicle registration fees, the California
tire fee, the fee charged by the state for the issuance of any
certificate of compliance or noncompliance pursuant to any statute,
finance charges, mobilehome escrow fees, the amount of any city,
county, or city and county imposed fee or tax for a mobilehome, and
any dealer document preparation charge, which charges shall not
exceed forty-five dollars ($45) for the document preparation charge
and not to exceed fifty dollars ($50) for emission testing plus the
actual fees charged for certificates pursuant to Section 44060 of the
Health and Safety Code, while the vehicle remains unsold, unless the
advertisement states the advertised total price is good only for a
specified time and the time has elapsed. Advertised vehicles shall be
sold at or below the advertised total price, with statutorily
permitted exclusions, regardless of whether the purchaser has
knowledge of the advertised total price.
(f) (1) Advertise for sale, sell, or purchase for resale any new
vehicle of a line-make for which the dealer does not hold a
franchise.
(2) This subdivision does not apply to any transaction involving
any of the following:
(A) A mobilehome.
(B) A recreational vehicle , as defined in Section
18010 of the Health and Safety Code.
(C) A commercial coach, as defined in Section 18001.8 of the
Health and Safety Code.
(D) An off-highway motor vehicle subject to identification ,
as defined in Section 38012.
(E) A manufactured home.
(F) A new vehicle that will be substantially altered or modified
by a converter prior to resale.
(G) A commercial vehicle with a gross vehicle weight rating of
more than 10,000 pounds.
(H) A vehicle purchased for export and exported outside the
territorial limits of the United States without being registered with
the department.
(g) Sell a park trailer, as specified in Section 18009.3 of the
Health and Safety Code, without disclosing in writing to the
purchaser that a park trailer is required to be moved by a
transporter or a licensed manufacturer or dealer under a permit
issued by the Department of Transportation or a local authority with
respect to highways under their respective jurisdictions.
(h) Advertise free merchandise, gifts, or services provided by a
dealer contingent on the purchase of a vehicle. The term
"free" "Free" includes merchandise or services
offered for sale at a price less than the seller's cost of the
merchandise or services.
(i) (1) Advertise vehicles, and related
goods or services, at a specified dealer price, with the intent not
to supply reasonably expectable demand, unless the advertisement
discloses the number of vehicles in stock at the advertised price. In
addition, whether or not there are sufficient vehicles in stock to
supply a reasonably expectable demand, when phrases such as "starting
at," "from," "beginning as low as," or words of similar import are
used in reference to an advertised price, the advertisement shall
disclose the number of vehicles available at that advertised price.
(2) For purposes of this subdivision, in any
newspaper advertisement for a vehicle that is two model-years old or
newer, the actual phrase that states the number of vehicles in stock
at the advertised price shall be (1) printed in a
type size that is at least equal to one-quarter of the type size,
and in the same style and color of type, used for the advertised
price , however . However , in no case
shall the phrase be printed in less than 8-point type size ,
and (2) . The phrase shall be disclosed
immediately above, below, or beside the advertised price without any
intervening words, pictures, marks, or symbols.
(3) The disclosure required by this
subdivision is in addition to any other disclosure required by this
code or any regulation regarding identifying vehicles advertised for
sale.
(j) Use the term "rebate" or similar words such
as "cash back" in advertising the sale of a vehicle unless the
rebate is expressed in a specific dollar amount and is in fact a
rebate offered by the vehicle manufacturer or distributor directly to
the retail purchaser of the vehicle or to the assignee of the retail
purchaser.
(k) Require a person to pay a higher price for a vehicle and
related goods or services for receiving advertised credit terms than
the cash price the same person would have to pay to purchase the same
vehicle and related goods or services. For the purpose of this
subdivision, "cash price" has the meaning as defined in subdivision
(e) of Section 2981 of the Civil Code.
(l) Advertise a guaranteed trade-in allowance.
(m) Misrepresent the authority of a salesperson, representative,
or agent to negotiate the final terms of a transaction.
(n) (1) Use the terms "invoice," "dealer's
invoice," "wholesale price," or similar terms that refer to a dealer'
s cost for a vehicle in an advertisement for the sale of a vehicle or
advertise that the selling price of a vehicle is above, below, or at
either of the following:
(A) The manufacturer's or distributor's invoice price to a dealer.
(B) A dealer's cost.
(2) This subdivision does not apply to either of the following:
(A) Any communication occurring during face-to-face negotiations
for the purchase of a specific vehicle if the prospective purchaser
initiates a discussion of the vehicle's invoice price or the dealer's
cost for that vehicle.
(B) Any communication between a dealer and a prospective
commercial purchaser that is not disseminated to the general public.
For purposes of this subparagraph, a "commercial purchaser" means a
dealer, lessor, lessor-retailer, manufacturer, remanufacturer,
distributor, financial institution, governmental entity, or person
who purchases 10 or more vehicles during a year.
(o) Violate any law prohibiting bait and switch advertising,
including, but not limited to, the guides against bait advertising
set forth in Part 238 (commencing with Section 238) of Title 16 of
the Code of Federal Regulations, as those regulations read on January
1, 1988.
(p) Make any untrue or misleading statement indicating that a
vehicle is equipped with all the factory installed optional equipment
the manufacturer offers, including, but not limited to, a false
statement that a vehicle is "fully factory equipped."
(q) Affix on any new vehicle a supplemental price sticker
containing a price that represents the dealer's asking price
which that exceeds the manufacturer's suggested
retail price unless all of the following occur:
(1) The supplemental sticker clearly and conspicuously discloses
in the largest print appearing on the sticker, other than the print
size used for the dealer's name, that the supplemental sticker price
is the dealer's asking price, or words of similar import, and that it
is not the manufacturer's suggested retail price.
(2) The supplemental sticker clearly and conspicuously discloses
the manufacturer's suggested retail price.
(3) The supplemental sticker lists each item which
that is not included in the manufacturer's
suggested retail price, and discloses the additional price of each
item. If the supplemental sticker price is greater than the sum of
the manufacturer's suggested retail price and the price of the items
added by the dealer, then the supplemental sticker
price shall set forth that difference and describe it as "added
mark-up."
(r) Advertise any underselling claim, such as "we have the lowest
prices" or "we will beat any dealer's price," unless the dealer has
conducted a recent survey showing that the dealer sells its vehicles
at lower prices than any other licensee in its trade area and
maintains records to adequately substantiate the claims. The
substantiating records shall be made available to the department upon
request.
(s) (1) Advertise any incentive offered by
the manufacturer or distributor if the dealer is required to
contribute to the cost of the incentive as a condition of
participating in the incentive program, unless the dealer discloses
in a clear and conspicuous manner that dealer participation may
affect consumer cost.
(2) For purposes of this subdivision,
"incentive" means anything of value offered to induce people to
purchase a vehicle, including, but not limited to, discounts, savings
claims, rebates, below-market finance rates, and free merchandise or
services.
(t) Display or offer for sale any used vehicle unless there is
affixed to the vehicle the Federal Trade Commission's Buyer's Guide
as required by Part 455 of Title 16 of the Code of Federal
Regulations.
(u) Fail to disclose in writing to the franchisor of a new motor
vehicle dealer the name of the purchaser, date of sale, and the
vehicle identification number of each new motor vehicle sold of the
line-make of that franchisor, or intentionally submit to that
franchisor a false name for the purchaser or false date for the date
of sale.
(v) Enter into a contract for the retail sale of a motor vehicle
unless the contract clearly and conspicuously discloses whether the
vehicle is being sold as a new vehicle or a used vehicle, as defined
in this code.
(w) Use a simulated check, as defined in subdivision (a) of
Section 22433 of the Business and Professions Code, in an
advertisement for the sale or lease of a vehicle.
(x) Fail to disclose, in a clear and conspicuous manner ,
in at least 10-point bold boldface
type , on the face of any contract for the retail
sale of a new motor vehicle that this transaction is, or is not,
subject to a fee received by an autobroker from the selling new motor
vehicle dealer, and the name of the autobroker, if applicable.
(y) As used in this section, the terms "make"
and "model" have the same meaning as is provided in Section 565.3 of
Title 49 of the Code of Federal Regulations.
SEC. 656. 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 over
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 over
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, a 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, motorized
scooter, 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 over 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) A 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 over
older and who has successfully completed
approved courses in automobile education and driver training as
provided in paragraph (3) of subdivision (a) of Section 12814.6, and
a 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 over older , may, in addition
to operating a motor vehicle pursuant to subdivision (d), also
operate a motorcycle, motorized scooter, or a motorized bicycle,
except that the person shall not operate a motorcycle, motorized
scooter, 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
18252.2 41907 of the Education Code.
(f) A 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, motorized scooter, or a motorized bicycle,
when taking a driver training instruction administered by the
California National Guard.
(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. 657. Section 12811 of the Vehicle Code, as amended by Section
1 of Chapter 665 of the Statutes of 2005, is amended to read:
12811. (a) (1) (A) When the department determines that the
applicant is lawfully entitled to a license, it shall issue to the
person a driver's license as applied for. The license shall state the
class of license for which the licensee has qualified and shall
contain the distinguishing number assigned to the applicant, the date
of expiration, the true full name, age, and mailing address of the
licensee, a brief description and engraved picture or photograph of
the licensee for the purpose of identification, and space for the
signature of the licensee.
(B) Each license shall also contain a space for the endorsement of
a record of each suspension or revocation thereof.
(C) The department shall use whatever process or processes, in the
issuance of engraved or colored licenses, that prohibit, as near as
possible, the ability to alter or reproduce the license, or prohibit
the ability to superimpose a picture or photograph on the license
without ready detection.
(2) In addition to the requirements of paragraph (1), a license
issued to a person under 18 years of age shall display the words
"provisional until age 18."
(b) (1) The front of an application for an original or renewal of
a driver's license or identification card shall contain a space for
any applicant, age 16 years or older, to give his or her
consent to be an organ and tissue donor upon death. An applicant who
gives consent shall be directed to read a statement on the back of
the application that shall contain the following statement:
"If you marked on the front of the application that you want to be
an organ and tissue donor upon death, your consent shall serve as a
legally binding document as outlined under the California Uniform
Anatomical Gift Act. Except in the case where the donor is under the
age of 18, the donation does not require the consent of any other
person. For donors under the age of 18, the legal guardian of the
donee donor shall make the final
decision regarding the donation. If you want to change your decision
to consent in the future, or if you want to limit the donation to
specific organs or tissues, you must contact Donate Life California
by mail at 1760 Creekside Oaks Drive, #160, Sacramento, CA 95833, or
through the World Wide Web at www.donateLIFEcalifornia.org, or
www.doneVIDAcalifornia.org."
(2) Notwithstanding any other provision of law, a person under
the age of 18 year s may
register as a donor. However, the legal guardian of that person shall
make the final decision regarding the donation.
(3) The department shall collect donor designation information on
all applications for an original or renewal driver's license or
identification card.
(4) The department shall print the word "DONOR" or another
appropriate designation on the face of a driver's license or
identification card to for a person who
registered as a donor on a form issued under this section.
(5) On a weekly basis, the department shall electronically
transmit to Donate Life California, a nonprofit organization
established and designated as the California Organ and Tissue Donor
Registrar pursuant to Section 7152.7 of the Health and Safety Code,
all of the following information on every applicant that has
indicated his or her willingness to participate in the organ donation
program:
(A) His or her true full name.
(B) His or her residence or mailing address.
(C) His or her date of birth.
(D) His or her California driver's license number or
identification card number.
(6) (A) A person who applies for an original or renewal driver's
license or identification card may designate a voluntary contribution
of two dollars ($2) for the purpose of promoting and supporting
organ and tissue donation. This contribution shall be collected by
the department, and treated as a voluntary contribution to Donate
Life California and not as a fee for the issuance of a driver's
license or identification card.
(B) The department may use the donations collected under this
paragraph to cover its actual administrative costs incurred under
paragraphs (3) to (5), inclusive. The department shall deposit all
revenue derived under this paragraph and remaining after the
department's deduction for administrative costs in the Donate Life
California Trust Subaccount, which is hereby created in the Motor
Vehicle Account in the State Transportation Fund. Notwithstanding
Section 13340 of the Government Code, all revenue in this subaccount
is continuously appropriated, without regard to fiscal years, to the
Controller for allocation to Donate Life California and shall be
expended for the purpose of increasing participation in organ
donation programs.
(7) The enrollment form shall be posted on the Internet Web sites
for the department and the California Health and Human Services
Agency.
(8) The enrollment shall constitute a legal document under the
Uniform Anatomical Gift Act (Chapter 3.5 (commencing with Section
7150) of Part 1 of Division 7 of the Health and Safety Code) and
shall remain binding after the donor's death despite any express
desires of next of kin opposed to the donation. Except as provided in
paragraph (2) of subdivision (b) , the donation
does not require the consent of any other person.
(9) Donate Life California shall ensure that all additions and
deletions to the California Organ and Tissue Donor Registry,
established pursuant to Section 7152.7 of the Health and Safety Code,
shall occur within 30 days of receipt.
(10) Information obtained by Donate Life California for the
purposes of this subdivision shall be used for these purposes only
and shall not be disseminated further by Donate Life California.
(c) A public entity or employee shall not be liable for any loss,
detriment, or injury resulting directly or indirectly from false or
inaccurate information contained in the form provided pursuant to
subdivision (b).
(d) A contract shall not be awarded to any nongovernmental entity
for the processing of driver's licenses, unless the contract conforms
to all applicable state contracting laws and all applicable
procedures set forth in the State Contracting Manual.
(e) This section shall become operative on July 1, 2006.
SEC. 658. Section 14602.6 of the Vehicle Code is amended to read:
14602.6. (a) (1) Whenever a peace officer determines that a
person was driving a vehicle while his or her driving privilege was
suspended or revoked, driving a vehicle while his or her driving
privilege is restricted pursuant to Section 13352 or 23575 and the
vehicle is not equipped with a functioning, certified interlock
device, or driving a vehicle without ever having been issued a driver'
s license, the peace officer may either immediately arrest that
person and cause the removal and seizure of that vehicle or, if the
vehicle is involved in a traffic collision, cause the removal and
seizure of the vehicle without the necessity of arresting the person
in accordance with Chapter 10 (commencing with Section 22650) of
Division 11. A vehicle so impounded shall be impounded for 30 days.
(2) The impounding agency, within two working days of impoundment,
shall send a notice by certified mail, return receipt requested, to
the legal owner of the vehicle, at the address obtained from the
department, informing the owner that the vehicle has been impounded.
Failure to notify the legal owner within two working days shall
prohibit the impounding agency from charging for more than 15 days'
impoundment when the legal owner redeems the impounded vehicle. The
impounding agency shall maintain a published telephone number that
provides information 24 hours a day regarding the impoundment of
vehicles and the rights of a registered owner to request a hearing.
(b) The registered and legal owner of a vehicle that is removed
and seized under subdivision (a) or their his
or her agents shall be provided the opportunity for a storage
hearing to determine the validity of, or consider any mitigating
circumstances attendant to, the storage, in accordance with Section
22852.
(c) Any period in which a vehicle is subjected to storage under
this section shall be included as part of the period of impoundment
ordered by the court under subdivision (a) of Section 14602.5.
(d) (1) An impounding agency shall release a vehicle to the
registered owner or his or her agent prior to the end of 30 days'
impoundment under any of the following circumstances:
(A) When the vehicle is a stolen vehicle.
(B) When the vehicle is subject to bailment and is driven by an
unlicensed employee of a business establishment, including a parking
service or repair garage.
(C) When the license of the driver was suspended or revoked for an
offense other than those included in Article 2 (commencing with
Section 13200) of Chapter 2 of Division 6 or Article 3 (commencing
with Section 13350) of Chapter 2 of Division 6.
(D) When the vehicle was seized under this section for an offense
that does not authorize the seizure of the vehicle.
(E) When the driver reinstates his or her driver's license or
acquires a driver's license and proper insurance.
(2) No vehicle shall be released pursuant to this subdivision
without presentation of the registered owner's or agent's currently
valid driver's license to operate the vehicle and proof of current
vehicle registration, or upon order of a court.
(e) The registered owner or his or her agent is responsible for
all towing and storage charges related to the impoundment, and any
administrative charges authorized under Section 22850.5.
(f) A vehicle removed and seized under subdivision (a) shall be
released to the legal owner of the vehicle or the legal owner's agent
prior to the end of 30 days' impoundment if all of the following
conditions are met:
(1) The legal owner is a motor vehicle dealer, bank, credit union,
acceptance corporation, or other licensed financial institution
legally operating in this state or is another person, not the
registered owner, holding a security interest in the vehicle.
(2) The legal owner or the legal owner's agent pays all towing and
storage fees related to the seizure of the vehicle. No lien sale
processing fees shall be charged to the legal owner who redeems the
vehicle prior to the 15th day of impoundment. Neither the impounding
authority nor any person having possession of the vehicle shall
collect from the legal owner of the type specified in paragraph (1)
, or the legal owner's agent any administrative
charges imposed pursuant to Section 22850.5 unless the legal owner
voluntarily requested a poststorage hearing.
(3) (A) The legal owner or the legal owner's
agent presents either lawful foreclosure documents or an affidavit
of repossession for the vehicle, and a security agreement or title
showing proof of legal ownership for the vehicle. Any documents
presented may be originals, photocopies, or facsimile copies, or may
be transmitted electronically. The impounding agency shall not
require any documents to be notarized. The impounding agency may
require the agent of the legal owner to produce a photocopy or
facsimile copy of its repossession agency license or registration
issued pursuant to Chapter 11 (commencing with Section 7500) of
Division 3 of the Business and Professions Code, or to demonstrate,
to the satisfaction of the impounding agency, that the agent is
exempt from licensure pursuant to Section 7500.2 or 7500.3 of the
Business and Professions Code.
(B) No administrative costs authorized under
subdivision (a) of Section 22850.5 shall be charged to the legal
owner of the type specified in paragraph (1), who redeems the vehicle
unless the legal owner voluntarily requests a poststorage hearing.
No city, county, city or and county, or
state agency shall require a legal owner or a legal owner's agent to
request a poststorage hearing as a requirement for release of the
vehicle to the legal owner or the legal owner's agent. The impounding
agency shall not require any documents other than those specified in
this paragraph. The impounding agency shall not require any
documents to be notarized.
(C) As used in this paragraph, "foreclosure
documents" means an "assignment" as that term is defined in
subdivision (o) of Section 7500.1 of the Business and Professions
Code.
(g) (1) A legal owner or the legal owner's agent that obtains
release of the vehicle pursuant to subdivision (f) may not release
the vehicle to the registered owner of the vehicle or any agents of
the registered owner, unless the registered owner is a rental car
agency, until after the termination of the 30-day impoundment period.
(2) The legal owner or the legal owner's agent may not relinquish
the vehicle to the registered owner until the registered owner or
that owner's agent presents his or her valid driver's license or
valid temporary driver's license to the legal owner or the legal
owner's agent. The legal owner or the legal owner's agent shall make
every reasonable effort to ensure that the license presented is
valid.
(3) Prior to relinquishing the vehicle, the legal owner may
require the registered owner to pay all towing and storage charges
related to the impoundment and any administrative charges authorized
under Section 22850.5 that were incurred by the legal owner in
connection with obtaining custody of the vehicle.
(h) (1) A vehicle removed and seized under subdivision (a) shall
be released to a rental car agency prior to the end of 30 days'
impoundment if the agency is either the legal owner or registered
owner of the vehicle and the agency pays all towing and storage fees
related to the seizure of the vehicle.
(2) The owner of a rental vehicle that was seized under this
section may continue to rent the vehicle upon recovery of the
vehicle. However, the rental car agency may not rent another vehicle
to the driver of the vehicle that was seized until 30 days after the
date that the vehicle was seized.
(3) The rental car agency may require the person to whom the
vehicle was rented to pay all towing and storage charges related to
the impoundment and any administrative charges authorized under
Section 22850.5 that were incurred by the rental car agency in
connection with obtaining custody of the vehicle.
(i) Notwithstanding any other provision of this section, the
registered owner and not the legal owner shall remain responsible for
any towing and storage charges related to the impoundment, any
administrative charges authorized under Section 22850.5, and any
parking fines, penalties, and administrative fees incurred by the
registered owner.
(j) The impounding agency is not liable to the registered owner
for the improper release of the vehicle to the legal owner or the
legal owner's agent provided the release complies with the
provisions of this section.
SEC. 659. Section 15242 of the Vehicle Code is amended to read:
15242. (a) A person who is self-employed as a commercial motor
vehicle driver shall comply with both the requirements of this
chapter pertaining to employers and those pertaining to employees.
(b) Notwithstanding subdivision (a), a motor carrier that engages
a person who owns, leases, or otherwise operates not more than one
motor vehicle listed in Section 34500 to provide transportation
services under the direction and control of that motor carrier is
responsible for the compliance of that person with this chapter and
for purposes of the regulations adopted by the department pursuant to
Section 34501 during the period of that direction and control.
(c) For the purposes of subdivision (b), "direction and control"
means either of the following:
(1) The person is operating under the motor carrier's interstate
operating authority issued by the United States Department of
Transportation.
(2) The person is operating under a subcontract with the motor
carrier that requires that the person to operate
in intrastate commerce and the person has performed transportation
services for a minimum of 60 calendar days within the past 90
calendar days for the motor carrier and has been on duty for that
carrier for no less than 36 hours within any week in which
transportation services were provided.
(d) Subdivision (b) shall not be construed to change the
definition of "employer," "employee," or "independent contractor" for
any purpose.
SEC. 660. Section 17155 of the Vehicle Code is amended to read:
17155. Where If two or more persons
are injured or killed in one accident, the owner, bailee of an
owner, or personal representative of a decedent may settle and pay
any bona fide claims for damages arising out of personal injuries or
death, whether reduced or by judgment
or not, and the payments shall diminish , to the extent
thereof such of those payments, the
person's total liability on account of the accident. Payments
aggregating the full sum of thirty thousand dollars ($30,000) shall
extinguish all liability of the owner, bailee of an owner, or
personal representative of a decedent for death or personal injury
arising out of the accident which that
exists , pursuant to this chapter, and did not
arise through the negligent or wrongful act or omission of the owner,
bailee of an owner, or personal representative of a decedent nor
through the relationship of principal and agent or master and
servant.
SEC. 661. Section 23109 of the Vehicle Code is amended to read:
23109. (a) A person shall not engage in a motor vehicle speed
contest on a highway. As used in this section, a motor vehicle speed
contest includes a motor vehicle race against another vehicle, a
clock, or other timing device. For purposes of this section, an
event in which the time to cover a prescribed route of more than 20
miles is measured, but where the vehicle does not exceed the speed
limits, is not a speed contest.
(b) A person shall not aid or abet in any motor vehicle speed
contest on any highway.
(c) A person shall not engage in any a
motor vehicle exhibition of speed on a highway, and no
a person shall not aid or abet in a
motor vehicle exhibition of speed on any highway.
(d) A person shall not , for the purpose of
facilitating or aiding or as an incident to any motor vehicle speed
contest or exhibition upon a highway , in any manner
obstruct or place a barricade or obstruction or assist or participate
in placing a barricade or obstruction upon any highway.
(e) (1) A person convicted of a violation of subdivision (a) shall
be punished by imprisonment in a county jail for not less than 24
hours nor more than 90 days or by a fine of not less than three
hundred fifty-five dollars ($355) nor more than one thousand dollars
($1,000), or by both that fine and imprisonment. That person shall
also be required to perform 40 hours of community service. The court
may order the privilege to operate a motor vehicle suspended for 90
days to six months, as provided in paragraph (8) of subdivision (a)
of Section 13352. The person's privilege to operate a motor vehicle
may be restricted for 90 days to six months to necessary travel to
and from that person's place of employment and, if driving a motor
vehicle is necessary to perform the duties of the person's
employment, restricted to driving in that person's scope of
employment. This subdivision does not interfere with the court's
power to grant probation in a suitable case.
(2) If a person is convicted of a violation of subdivision (a) and
that violation proximately causes bodily injury to a person other
than the driver, the person convicted is punishable
shall be punished by imprisonment in a county
jail for not less than 30 days nor more than six months or by a fine
of not less than five hundred dollars ($500) nor more than one
thousand dollars ($1,000), or by both the
that fine and imprisonment.
(f) (1) If a person is convicted of a violation of subdivision (a)
for an offense that occurred within five years of the date of a
prior offense that resulted in a conviction of a violation of
subdivision (a), that person shall be punished by imprisonment in a
county jail for not less than four days nor more than six months, and
by a fine of not less than five hundred dollars ($500) nor more than
one thousand dollars ($1,000).
(2) If the perpetration of the most recent offense within the
five-year period described in paragraph (1) proximately causes bodily
injury to a person other than the driver, a person convicted of that
second violation shall be imprisoned in a county jail for not less
than 30 days nor more than six months and by a fine of not less than
five hundred dollars ($500) nor more than one thousand dollars
($1,000).
(3) If the perpetration of the most recent offense within the
five-year period described in paragraph (1) proximately causes
serious bodily injury, as defined in paragraph (4) of subdivision (f)
of Section 243 of the Penal Code, to a person other than the driver,
a person convicted of that second violation shall be imprisoned in
the state prison, or in a county jail for not less than 30 days nor
more than one year, and by a fine of not less than five hundred
dollars ($500) nor more than one thousand dollars ($1,000).
(4) The court shall order the privilege to operate a motor
vehicle of a person convicted under paragraph (1), (2), or (3)
, to operate a motor vehicle suspended for a
period of six months, as provided in paragraph (9) of subdivision (a)
of Section 13352. In lieu of the suspension, the person's privilege
to operate a motor vehicle may be restricted for six months to
necessary travel to and from that person's place of employment and,
if driving a motor vehicle is necessary to perform the duties of the
person's employment, restricted to driving in that person's scope of
employment. This
(5) This subdivision does not
interfere with the court's power to grant probation in a suitable
case.
(g) If the court grants probation to any a
person punishable subject to
punishment under subdivision (f), in addition to the
provisions of subdivision (f) and any other terms and
conditions imposed by the court, which may include a fine, the court
shall impose as a condition of probation that the person be confined
in a county jail for not less than 48 hours nor more than six months.
The court shall order the person's privilege to operate a motor
vehicle to be suspended for a period of six months, as provided in
paragraph (9) of subdivision (a) of Section 13352 or restricted
pursuant to subdivision (f).
(h) If a person is convicted of a violation of subdivision (a) and
the vehicle used in the violation is registered to that person, the
vehicle may be impounded at the registered owner's expense for not
less than one day nor more than 30 days.
(i) Any A person who violates
subdivision (b), (c), or (d) of this section shall
upon conviction thereof of that violation
be punished by imprisonment in a county jail for not more than
90 days or , by a fine of not more than
five hundred dollars ($500) , or by both that fine and
imprisonment.
(j) If a person's privilege to operate a motor vehicle is
restricted by a court pursuant to this section, the court shall
clearly mark the restriction and the dates of the restriction on that
person's driver's license and promptly notify the Department of
Motor Vehicles of the terms of the restriction in a manner prescribed
by the department. The Department of Motor Vehicles shall place that
restriction in the person's records in the Department of Motor
Vehicles and enter the restriction on any a
license subsequently issued by the Department of Motor Vehicles
to that person during the period of the restriction.
(k) The court may order that any a
person convicted under this section, who is to be punished by
imprisonment in a county jail, be imprisoned on days other than days
of regular employment of the person, as determined by the court.
(l) This section shall be known and may be cited as the Louis
Friend Memorial Act.
SEC. 662. Section 24011.3 of the Vehicle Code is amended to read:
24011.3. (a) Every manufacturer or importer of new passenger
vehicles for sale or lease in this state, shall affix to a window or
the windshield of the vehicle a notice with either of the following
statements, whichever is appropriate:
(1) "This vehicle is equipped with bumpers that can withstand an
impact of 2.5 miles per hour with no damage to the vehicle's body and
safety systems, although the bumper and related components may
sustain damage. The bumper system on this vehicle conforms to the
current federal bumper standard of 2.5 miles per hour. "
(2) "This vehicle is equipped with a front bumper of a type that
has been tested at an impact speed of (here specify the appropriate
number) miles per hour, and a rear bumper of a type that has been
tested at an impact speed of (here specify the appropriate number)
miles per hour, resulting in no damage to the vehicle's body and
safety systems and minimal damage to the bumper and attachment
hardware. ‛Minimal damage to the bumper' means minor cosmetic
damage that can be repaired with the use of common repair materials
and without replacing any parts. The stronger the bumper, the less
likely the vehicle will require repair after a low-speed collision.
This vehicle exceeds the current federal bumper standard of 2.5 miles
per hour."
(b) The impact speed required to be specified in the notice
pursuant to paragraph (2) of subdivision (a) is the maximum speed of
impact upon the bumper of the vehicle at which the vehicle sustains
no damage to the body and safety systems and only minimal damage to
the bumper when subjected to the fixed barrier and pendulum impact
tests, and when subjected to the corner impact test at not less than
60 percent of that maximum speed, conducted pursuant to Part 581 of
Title 49 of the Code of Federal Regulations.
(c) (1) Any A manufacturer who
willfully fails to affix the notice required by subdivision (a), or
willfully misstates any information in the notice, is guilty of a
misdemeanor and is , which shall be
punishable by a fine of not more the than
five hundred dollars ($500). Each failure or misstatement is a
separate offense.
(2) Any A person who willfully
defaces, alters, or removes the notice required by subdivision (a)
prior to the delivery of the vehicle, to which the notice
is required to be affixed, to the registered owner or lessee is
guilty of a misdemeanor and is , which shall
be punishable by a fine of not more than five hundred dollars
($500). Each willful defacement, alteration, or removal is a separate
offense.
(d) For purposes of this section , the following terms have
the following meanings :
(1) "Manufacturer" is any person engaged in the manufacture or
assembly of new passenger vehicles for distribution or sale, and
includes an importer of new passenger vehicles for distribution or
sale and any person who acts for, or is under the control of, a
manufacturer in connection with the distribution or sale of new
passenger vehicles.
(2) "Passenger vehicle" means, notwithstanding Section 465, a
motor vehicle subject to impact testing conducted pursuant to Part
581 of Title 49 of the Code of Federal Regulations.
(3) "No damage" means that, when a passenger vehicle is subjected
to impact testing, conducted pursuant to the conditions and test
procedures of Sections 581.6 and 581.7 of Part 581 of Title 49 of the
Code of Federal Regulations, the vehicle sustains no damage to the
body and safety systems.
(4) For purposes of paragraph (2) of subdivision (a) and
subdivision (b), "minimal damage to the bumper and attachment
hardware" means damage that can be repaired with the use of common
repair materials and without replacing any parts. In addition, not
later than 30 minutes after completion of each pendulum or barrier
impact test, the bumper face bar shall have no permanent deviation
greater than three-quarters of one inch from its original contour and
position relative to the vehicle frame and no permanent deviation
greater than three-eighths of one inch from its original contour on
areas of contact with the barrier face or impact ridge of the
pendulum test device, measured from a straight line connecting the
bumper contours adjoining the contact area.
(e) The notice required by this section may be included in any
notice or label required by federal law to be affixed to a window or
windshield of the vehicle.
SEC. 663. Section 27360 of the Vehicle Code is amended to read:
27360. (a) A parent or legal guardian, when present in a motor
vehicle, as defined in Section 27315, may not permit his or her child
or ward to be transported upon a highway in the motor vehicle
without properly securing the child or ward in a rear seat in a child
passenger restraint system meeting applicable federal motor vehicle
safety standards, unless the child or ward is one of the following:
(1) Six years of age or older.
(2) Sixty pounds or more.
(b) (1) A driver may not transport on a highway a child in a motor
vehicle, as defined in Section 27315, without properly securing the
child in a rear seat in a child passenger restraint system meeting
applicable federal motor vehicle safety standards, unless the child
is one of the following:
(A) Six years of age or older.
(B) Sixty pounds or more.
(2) This subdivision does not apply to a driver if the parent or
legal guardian of the child is also present in the vehicle and is not
the driver.
(c) (1) For purposes of subdivisions (a) and (b), and except as
provided in paragraph (2), a child or ward under the age of six years
who weighs less than 60 pounds may ride in the front seat of a motor
vehicle, if properly secured in a child passenger restraint system
that meets applicable federal motor vehicle safety standards, under
any of the following circumstances:
(A) There is no rear seat.
(B) The rear seats are side-facing jump seats.
(C) The rear seats are rear-facing seats.
(D) The child passenger restraint system cannot be installed
properly in the rear seat.
(E) All rear seats are already occupied by children under the age
of 12 years.
(F) Medical reasons necessitate that the child or ward not ride in
the rear seat. The court may require satisfactory proof of the child'
s medical condition.
(2) A child or ward may not ride in the front seat of a motor
vehicle with an active passenger airbag if the child or ward is one
of the following:
(A) Under one year of age.
(B) Less than 20 pounds.
(C) Riding in a rear-facing child passenger restraint system.
(d) (1) (A) A first offense under this section is punishable by a
fine of one hundred dollars ($100), except that the court may reduce
or waive the fine if the defendant establishes to the satisfaction of
the court that he or she is economically disadvantaged, and the
court, instead, refers the defendant to a community education program
that includes, but is not limited to, education on the proper
installation and use of a child passenger restraint system for
children of all ages, and provides certification to the court of
completion of that program. Upon completion of the program, the
defendant shall provide proof of participation in the program. If an
education program on the proper installation and use of a child
passenger restraint system is not available within 50 miles of the
residence of the defendant, the requirement to participate in that
program shall be waived. If the fine is paid, waived, or reduced, the
court shall report the conviction to the department pursuant to
Section 1803.
(B) The court may require a defendant
described under this section to attend an education program that
includes demonstration of proper installation and use of a child
passenger restraint system and provides certification to the court
that the defendant has presented for inspection a child passenger
restraint system that meets applicable federal safety standards.
(2) (A) A second or subsequent offense under
this section is punishable by a fine of two hundred fifty dollars
($250), no part of which may be waived by the court, except that the
court may reduce or waive the fine if the defendant establishes to
the satisfaction of the court that he or she is economically
disadvantaged, and the court, instead , refers the
defendant to a community education program that includes, but is not
limited to, education on the proper installation and use of child
passenger restraint systems for children of all ages, and provides
certification to the court of completion of that program. Upon
completion of the program, the defendant shall provide proof of
participation in the program. If an education program on the proper
installation and use of a child passenger restraint system is not
available within 50 miles of the residence of the defendant, the
requirement to participate in that program shall be waived. If the
fine is paid, waived, or reduced, the court shall report the
conviction to the department pursuant to Section 1803.
(B) The court may require a defendant
described under this section to attend an education program that
includes demonstration of proper installation and use of a child
passenger restraint system and provides certification to the court
that the defendant has presented for inspection a child passenger
restraint system that meets applicable federal safety standards.
(e) Notwithstanding any other provision of law, the fines
collected for a violation of this section shall be allocated as
follows:
(1) (A) Sixty percent to health departments
of local jurisdictions where the violation occurred, to be used for a
community education program that includes, but is not limited to,
demonstration of the installation of a child passenger restraint
system for children of all ages and also assists an economically
disadvantaged family in obtaining a restraint system through a
low-cost purchase or loan. The county or city health department shall
designate a coordinator to facilitate the creation of a special
account and to develop a relationship with the court system to
facilitate the transfer of funds to the program. The county or city
may contract for the implementation of the program. Prior to
obtaining possession of a child passenger restraint system pursuant
to this section, a person shall attend an education program that
includes demonstration of proper installation and use of a child
passenger restraint system.
(B) As the proceeds from fines become
available, county or city health departments shall prepare and
maintain a listing of all child passenger restraint low-cost purchase
or loaner programs in their counties, including a semiannual
verification that all programs listed are in existence. Each county
or city shall forward the listing to the Office of Traffic Safety in
the Business, Transportation and Housing Agency and the courts,
birthing centers, community child health and disability prevention
programs, county clinics, prenatal clinics, women, infants, and
children programs, and county hospitals in that county, who shall
make the listing available to the public. The Office of Traffic
Safety shall maintain a listing of all of the programs in the state.
(2) Twenty-five percent to the county or city for the
administration of the program.
(3) Fifteen percent to the city, to be deposited in its general
fund except that, if the violation occurred in an unincorporated
area, this amount shall be allocated to the county for purposes of
paragraph (1).
SEC. 664. Section 29008 of the Vehicle Code is amended to read:
29008. The requirements of Section
Sections 29004 and 29005 shall not apply to trailers or dollies
used to support booms attached to truck cranes if the following
conditions are met:
(a) The trailer or dolly is connected to the boom by a pin,
coupling device , or fifth wheel assembly.
(b) The trailer is secured to the boom with a chain, cable, or
equivalent device of sufficient strength to control the trailer or
dolly in case of failure of the connection consisting of a pin,
coupling device , or fifth wheel assembly.
SEC. 665. Section 35106 of the Vehicle Code is amended to read:
35106. (a) Motor coaches or buses may have a maximum width not
exceeding 102 inches.
(b) Notwithstanding subdivision (a), motor coaches or buses
operated under the jurisdiction of the Public Utilities Commission in
urban or suburban service may have a maximum outside width not
exceeding 104 inches, when approved by order of the Public Utilities
Commission for use on routes designated by it. Motor coaches or buses
operated by common carriers of passengers for hire in urban or
suburban service and not under the jurisdiction of the Public
Utilities Commission may have a maximum outside width not exceeding
104 inches.
(c) This section shall become operative on January 1, 2002.
(Amended by Stats. 1982, Ch. 827, Sec. 5. Effective September 10,
1982.)
SEC. 666. Section 40512 of the Vehicle Code is amended to read:
40512. (a) (1) Except as specified in paragraph (2), if at the
time the case is called for arraignment before the magistrate the
defendant does not appear, either in person or by counsel, the
magistrate may declare the bail forfeited and may, in his or her
discretion, order that no further proceedings be had in the case,
unless the defendant has been charged with a violation of Section
23111 or 23112, or subdivision (a) of Section 23113, and he or she
has been previously convicted of the same offense, except if the
magistrate finds that undue hardship will be imposed upon the
defendant by requiring him or her to appear, the magistrate may
declare the bail forfeited and order that no further proceedings
shall be had in the case.
(2) If the defendant has posted surety bail and the magistrate has
ordered the bail forfeited and that no further proceedings shall be
had in the case, the bail retains the right to obtain relief from the
forfeiture as provided in Section 1305 of the Penal Code if the
amount of the bond, money, or property deposited exceeds seven
hundred dollars ($700).
(b) Upon the making of the order that no further proceedings shall
be had, all sums deposited as bail shall forthwith
be paid into the city or county treasury, as the case may
be.
(c) If a guaranteed traffic arrest bail bond certificate has been
filed, the clerk of the court shall bill the issuer for the amount of
bail fixed by the uniform countywide schedule of bail required under
subdivisions (b) and (d) subdivision (c)
of Section 1296 1296b of the
Penal Code.
(d) Upon presentation by a court of the bill for a fine or bail
assessed against an individual covered by a guaranteed traffic arrest
bail bond certificate, the issuer shall pay to the court the amount
of the fine or forfeited bail which that
is within the maximum amount guaranteed by the terms of the
certificate.
(e) The court shall return the guaranteed traffic arrest bail bond
certificate to the issuer upon receipt of payment in accordance with
subdivision (d).
SEC. 667. Section 42001 of the Vehicle Code is amended to read:
42001. (a) Except as provided in subdivision (e) of Section
21464, or Section 42000.5, 42001.1, 42001.2, 42001.3, 42001.5,
42001.7, 42001.8, 42001.9, 42001.11, 42001.12, 42001.13, 42001.14,
42001.15, or 42001.16, or subdivision (a) of Section
42001.17, Section 42001.18, or Section 42001.20, or subdivision (b),
(c), or (d) of this section, or Article 2 (commencing with Section
42030), every person convicted of an infraction for a violation of
this code or of any local ordinance adopted pursuant to this code
shall be punished as follows:
(1) By a fine not exceeding one hundred dollars ($100).
(2) For a second infraction occurring within one year of a prior
infraction which that resulted in a
conviction, a fine not exceeding two hundred dollars ($200).
(3) For a third or any subsequent infraction occurring within one
year of two or more prior infractions which
that resulted in convictions, a fine not exceeding two hundred
fifty dollars ($250).
(b) Every person convicted of a misdemeanor violation of Section
2800, 2801, or 2803, insofar as they affect
that violation affects failure to stop and submit to inspection
of equipment or for an unsafe condition endangering any person,
shall be punished as follows:
(1) By a fine not exceeding fifty dollars ($50) or imprisonment in
the a county jail not exceeding five
days.
(2) For a second conviction within a period of one year, a fine
not exceeding one hundred dollars ($100) or imprisonment in
the a county jail not exceeding 10 days, or both
that fine and imprisonment.
(3) For a third or any subsequent conviction within a period of
one year, a fine not exceeding five hundred dollars ($500) or
imprisonment in the a county jail not
exceeding six months, or both that fine and imprisonment.
(c) A pedestrian convicted of an infraction for a violation of
this code or any local ordinance adopted pursuant to this code shall
be punished by a fine not exceeding fifty dollars ($50).
(d) A person convicted of a violation of subdivision (a) or (b) of
Section 27150.3 shall be punished by a fine of two hundred fifty
dollars ($250), and a person convicted of a violation of subdivision
(c) of Section 27150.3 shall be punished by a fine of one thousand
dollars ($1,000).
(e) Notwithstanding any other provision of law, any local public
entity that employs peace officers, as designated under Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2 of the Penal Code,
the California State University, and the University of California
may, by ordinance or resolution, establish a schedule of fines
applicable to infractions committed by bicyclists within its
jurisdiction. Any fine, including all penalty assessments and court
costs, established pursuant to this subdivision shall not exceed the
maximum fine, including penalty assessment
assessments and court costs, otherwise authorized by this code
for that violation. If a bicycle fine schedule is adopted, it shall
be used by the courts having jurisdiction over the area within which
the ordinance or resolution is applicable instead of the fines,
including penalty assessments and court costs, otherwise applicable
under this code.
SEC. 668. Section 359 of the Water Code is amended to read:
359. (a) Notwithstanding any other
provision of law which that requires an
election for the purpose of authorizing a contract with the United
States, or for incurring the obligation to repay loans from the
United States, and except as otherwise limited or prohibited by the
California Constitution of the State of
California , a public water agency may ,
as an alternative procedure to submitting the proposal to an
election, upon affirmative vote of four-fifths of the members of the
governing body thereof, may apply for, accept, provide for
the repayment together with interest thereon, and use funds made
available by the federal government pursuant to Public Law 95-18,
pursuant to any other federal act subsequently enacted during 1977
which that specifically provides
emergency drought relief financing, or pursuant to existing federal
relief programs receiving budget augmentations in 1977 for drought
assistance, and may enter into such contracts
as that are required to obtain
such those federal funds pursuant to the
provisions of such those federal acts
; provided if the following conditions
exist:
(a)
(1) The project is undertaken by a state,
regional, or local governmental agency.
(b)
(2) As a result of the severe drought now existing in
many parts of the state, the agency has insufficient water supply
needed to meet necessary agricultural, domestic, industrial,
recreational, and fish and wildlife needs within the service area or
area of jurisdiction of the agency.
(c)
(3) The project will develop or conserve water before
October 31, 1978, and will assist in mitigating the impacts of the
drought.
(d)
(4) The agency affirms that it will comply, if
applicable, with Sections 1602, 1603, and 1605 of the Fish and Game
Code.
(e)
(5) The project will be completed on or before the
completion date, if any, required under the federal act providing the
funding, but not later than March 1, 1978.
(b) Any obligation to repay loans shall be
expressly limited to revenues of the system improved by the proceeds
of the contract.
(c) No application for such
federal funds pursuant to the authority of
this section shall be made on or after March 1, 1978.
(d) Notwithstanding the provisions of this
section, a public agency shall not be exempt from any provision of
law which that requires the submission
of such a proposal to an election if a
petition requesting such an election signed by 10 percent of the
registered voters within the public agency is presented to the
governing board within 30 days following the submission of an
application for such federal funds.
(e) Notwithstanding the provisions of this
section, a public water agency which that
applied for federal funds for a project prior to
before January 1, 1978, may make application to
the Director of the Drought Emergency Task Force for extension of the
required completion date specified in paragraph (5) of
subdivision (e) (b) . Following receipt
of an application for extension, the Director of the Drought
Emergency Task Force may extend the required completion date
specified in paragraph (5) of subdivision (e)
(b) to a date not later than September 30, 1978,
if the director finds that the project has been delayed by factors
not controllable by the public water agency. If the Drought Emergency
Task Force is dissolved, the Director of Water Resources shall
exercise the authority vested in the Director of the Drought
Emergency Task Force pursuant to this section.
(f) For the purposes of this section,
"public water agency" means a city, district, agency, authority, or
any other political subdivision of the state, except the state,
which that distributes water to the
inhabitants thereof, which is otherwise authorized
by law to enter into contracts or agreements with the federal
government for a water supply or for financing facilities for a water
supply, and which is otherwise required by law to
submit such those agreements or
contracts or any other project involving long-term debt to an
election within such that public water
agency.
SEC. 669. Section 5003 of the Water Code is amended to read:
5003. No prescriptive right which that
might otherwise accrue to extract ground water shall arise or
accrue to, nor shall any statute of limitations operate in regard to
such the ground water in the four
counties or any of them after the year 1956 in
favor of any person required to file such a
notice of extraction and diversion of water, until
such that person shall file
files with the board the first "Notice of Extraction and
Diversion of Water" substantially in the form mentioned in Section
5002 ; and as . As to each person who
fails to file such that notice by the
end of the year in 1957, it shall be deemed for the period
from that time until the first notice of such
the person is filed, that no claim of right to the
extraction of ground water from any such source in
the four counties has been made by such the
person, and that water so extracted by
such the person from such
the ground water source during such
that period has not been devoted to or used for
any beneficial use. The beneficial use of water from any ground water
source within the four counties in any year by such
the person shall be deemed not to exceed the
quantity reported in the notice filed for such
that year.
SEC. 670. Section 8617.5 of the Water Code is amended to read:
8617.5. (a) In connection with any work
done on projects authorized by the board in the repair or
reconstruction of levees or other flood control works completed
prior to before June 30, 1957, the
board may provide for and pay the cost of the relocation,
reconstruction, or replacement of improvements, structures, or
utilities which that have actually
existed and been in use for over 20 years, which have
has been rendered necessary by such
the work, unless such payment
would be contrary to the provisions of any
written authorization or agreement under which the improvement,
structure, or utility was constructed or maintained.
(b) This section shall not apply to the
relocation, reconstruction, or replacement of improvements,
structures, or utilities where such if the
work has been financed, in whole or in part, with funds under
the Flood Relief Law of 1956 (Sections 54150 to 54161,
inclusive, (former Article 6 (commencing with Section
54150) of Chapter 5 of Part 1 of Division 2 of Title 5 of the
Government Code) or Public Law 875, Eighty-first Congress,
Second Session 81-875 .
SEC. 671. Section 10631 of the Water Code is amended to read:
10631. A plan shall be adopted in accordance with this chapter
and shall do all of the following:
(a) Describe the service area of the supplier, including current
and projected population, climate, and other demographic factors
affecting the supplier's water management planning. The projected
population estimates shall be based upon data from the state,
regional, or local service agency population projections within the
service area of the urban water supplier and shall be in five-year
increments to 20 years or as far as data is available.
(b) Identify and quantify, to the extent practicable, the existing
and planned sources of water available to the supplier over the same
five-year increments described in subdivision (a). If groundwater is
identified as an existing or planned source of water available to
the supplier, all of the following information shall be included in
the plan:
(1) A copy of any groundwater management plan adopted by the urban
water supplier, including plans adopted pursuant to Part 2.75
(commencing with Section 10750), or any other specific authorization
for groundwater
management.
(2) A description of any groundwater basin or basins from which
the urban water supplier pumps groundwater. For those basins for
which a court or the board has adjudicated the rights to pump
groundwater, a copy of the order or decree adopted by the court or
the board and a description of the amount of groundwater the urban
water supplier has the legal right to pump under the order or decree.
For basins that have not been adjudicated, information as to whether
the department has identified the basin or basins as overdrafted or
has projected that the basin will become overdrafted if present
management conditions continue, in the most current official
departmental bulletin that characterizes the condition of the
groundwater basin, and a detailed description of the efforts being
undertaken by the urban water supplier to eliminate the long-term
overdraft condition.
(3) A detailed description and analysis of the location, amount,
and sufficiency of groundwater pumped by the urban water supplier for
the past five years. The description and analysis shall be based on
information that is reasonably available, including, but not limited
to, historic use records.
(4) A detailed description and analysis of the amount and location
of groundwater that is projected to be pumped by the urban water
supplier. The description and analysis shall be based on information
that is reasonably available, including, but not limited to, historic
use records.
(c) (1) Describe the reliability of the
water supply and vulnerability to seasonal or climatic shortage, to
the extent practicable, and provide data for each of the following:
(1)
(A) An average water year.
(2)
(B) A single dry water year.
(3)
(C) Multiple dry water years.
(2) For any water source that may not be
available at a consistent level of use, given specific legal,
environmental, water quality, or climatic factors, describe plans to
supplement or replace that source with alternative sources or water
demand management measures, to the extent practicable.
(d) Describe the opportunities for exchanges or transfers of water
on a short-term or long-term basis.
(e) (1) Quantify, to the extent records are available, past and
current water use, over the same five-year increments described in
subdivision (a), and projected water use, identifying the uses among
water use sectors , including, but not necessarily limited
to, all of the following uses:
(A) Single-family residential.
(B) Multifamily.
(C) Commercial.
(D) Industrial.
(E) Institutional and governmental.
(F) Landscape.
(G) Sales to other agencies.
(H) Saline water intrusion barriers, groundwater recharge, or
conjunctive use, or any combination thereof.
(I) Agricultural.
(2) The water use projections shall be in the same five-year
increments described in subdivision (a).
(f) Provide a description of the supplier's water demand
management measures. This description shall include all of the
following:
(1) A description of each water demand management measure that is
currently being implemented, or scheduled for implementation,
including the steps necessary to implement any proposed measures,
including, but not limited to, all of the following:
(A) Water survey programs for single-family residential and
multifamily residential customers.
(B) Residential plumbing retrofit.
(C) System water audits, leak detection, and repair.
(D) Metering with commodity rates for all new connections and
retrofit of existing connections.
(E) Large landscape conservation programs and incentives.
(F) High-efficiency washing machine rebate programs.
(G) Public information programs.
(H) School education programs.
(I) Conservation programs for commercial, industrial, and
institutional accounts.
(J) Wholesale agency programs.
(K) Conservation pricing.
(L) Water conservation coordinator.
(M) Water waste prohibition.
(N) Residential ultra-low-flush toilet replacement programs.
(2) A schedule of implementation for all water demand management
measures proposed or described in the plan.
(3) A description of the methods, if any, that the supplier will
use to evaluate the effectiveness of water demand management measures
implemented or described under the plan.
(4) An estimate, if available, of existing conservation savings on
water use within the supplier's service area, and the effect of the
savings on the supplier's ability to further reduce demand.
(g) An evaluation of each water demand management measure listed
in paragraph (1) of subdivision (f) that is not currently being
implemented or scheduled for implementation. In the course of the
evaluation, first consideration shall be given to water demand
management measures, or combination of measures, that offer lower
incremental costs than expanded or additional water supplies. This
evaluation shall do all of the following:
(1) Take into account economic and noneconomic factors, including
environmental, social, health, customer impact, and technological
factors.
(2) Include a cost-benefit analysis, identifying total benefits
and total costs.
(3) Include a description of funding available to implement any
planned water supply project that would provide water at a higher
unit cost.
(4) Include a description of the water supplier's legal authority
to implement the measure and efforts to work with other relevant
agencies to ensure the implementation of the measure and to share the
cost of implementation.
(h) Include a description of all water supply projects and water
supply programs that may be undertaken by the urban water supplier to
meet the total projected water use as established pursuant to
subdivision (a) of Section 10635. The urban water supplier shall
include a detailed description of expected future projects and
programs, other than the demand management programs identified
pursuant to paragraph (1) of subdivision (f), that the urban water
supplier may implement to increase the amount of the water supply
available to the urban water supplier in average, single-dry, and
multiple-dry water years. The description shall identify specific
projects and include a description of the increase in water supply
that is expected to be available from each project. The description
shall include an estimate with regard to the implementation timeline
for each project or program.
(i) Describe the opportunities for development of desalinated
water, including, but not limited to, ocean water, brackish water,
and groundwater, as a long-term supply.
(j) Urban water suppliers that are members of the California Urban
Water Conservation Council and submit annual reports to that council
in accordance with the "Memorandum of Understanding Regarding Urban
Water Conservation in California," dated September 1991, may submit
the annual reports identifying water demand management measures
currently being implemented, or scheduled for implementation, to
satisfy the requirements of subdivisions (f) and (g).
(k) Urban water suppliers that rely upon a wholesale agency for a
source of water , shall provide the wholesale
agency with water use projections from that agency for that source of
water in five-year increments to 20 years or as far as data is
available. The wholesale agency shall provide information to the
urban water supplier for inclusion in the urban water supplier's plan
that identifies and quantifies, to the extent practicable, the
existing and planned sources of water as required by subdivision (b),
available from the wholesale agency to the urban water supplier over
the same five-year increments, and during various water-year types
in accordance with subdivision (c). An urban water supplier may rely
upon water supply information provided by the wholesale agency in
fulfilling the plan informational requirements of subdivisions (b)
and (c).
SEC. 672. Section 12625 of the Water Code is amended to read:
12625. In determining the cost of any project, damage to fish and
wild life wildlife that will probably
result must shall be included in the
amount of the cost.
SEC. 673. Section 12879.2 of the Water Code is amended to read:
12879.2. As used in this chapter, the following terms have the
following meanings:
(a) "Committee" means the Water Conservation Finance Committee
created pursuant to Section 12879.9.
(b) "Department" means the Department of Water Resources.
(c) "Fund" means the 1988 Water Conservation Fund created pursuant
to Section 12879.3.
(d) "Local agency" means any city, county, city and county,
district, joint powers authority, or other political subdivision of
the state involved in water management.
(e) "Eligible project" means any dam, reservoir, or other
construction or improvement by a local agency for the diversion,
storage, or primary distribution of water, or facilities for
groundwater extraction, primarily for domestic, municipal,
agricultural, industrial, recreation, fish and wildlife enhancement,
flood control, or power production purposes. An eligible
project "Eligible project" also means any
reservoir, pipeline, or other construction or improvement by a local
agency for the storage or distribution of reclaimed water for reuse.
(f) (1) "Groundwater recharge facilities"
means land and facilities for artificial groundwater recharge through
methods which that include, but are
not limited to, either percolation using basins, pits, ditches, and
furrows, modified streambed, flooding, and well injection, or in-lieu
recharge. "Groundwater recharge facilities" also means capital
outlay expenditures to expand, renovate, or restructure land and
facilities already in use for the purpose of groundwater recharge.
(2) Groundwater recharge facilities may
include either of the following:
(1)
(A) Instream facilities for regulation of water levels,
but not regulation of streamflow by storage to accomplish diversion
from the waterway.
(2)
(B) Conveyance facilities to the recharge site,
including devices for flow regulation and measurement of recharge
waters.
(3) Any part or all of the project
facilities, including land under the facilities, may consist of
separable features, or an appropriate share of multipurpose features
of a larger system, or both.
(g) "In-lieu recharge" means accomplishing increased storage of
groundwater by providing surface water to a user who relies on
groundwater as a primary supply, in order to accomplish groundwater
storage through the direct use of that surface water in lieu of
pumping groundwater. In-lieu recharge shall be used rather than
continuing pumping while artificially recharging with surface waters.
However, bond proceeds shall not be used to purchase surface waters
for use in lieu of pumping groundwater.
(h) "Voluntary cost-effective capital outlay water conservation
programs" means those feasible capital outlay measures to improve the
efficiency of water use through benefits which
that exceed their costs. The programs include, but are not
limited to, lining or piping of ditches; improvements in water
distribution system controls such as automated canal control,
construction of small reservoirs within distribution systems
which that conserve water that already has been
captured for reuse, and related physical improvements; tailwater
pumpback recovery systems to reduce leakage; and capital changes in
onfarm on -farm irrigation
systems which that improve irrigation
efficiency, such as sprinkler or subsurface drip systems. In each
case, the department shall determine that there is a net savings of
water as a result of each proposed project and that the project is
cost-effective.
SEC. 674. Section 12899.6 of the Water Code is amended to read:
12899.6. (a) Unless a person is otherwise authorized, by permit
or agreement, to do so, it is unlawful for any person to do any of
the following acts:
(1) Drain water, or permit water to be drained, from the person's
lands onto the State Water Resources Development System right-of-way
by any means, which results in damage to the system or the department'
s right-of-way, except where the water naturally drains onto the
department's right-of-way.
(2) Obstruct any natural watercourse in a manner that does any of
the following:
(A) Prevents, impedes, or restricts the natural flow of waters
from any portion of the department's right-of-way into and through
the watercourse or State Water Resources Development System cross
drainage structures, unless other adequate and proper drainage is
provided.
(B) Causes waters to be impounded within the department's
right-of-way that damages the State Water Resources Development
System or the department's right-of-way, except where the water
naturally drains onto the department's right-of-way.
(C) Causes interference with, or damages or makes hazardous the
operation, maintenance, and rehabilitation of , the State
Water Resources Development System.
(3) Stores or distributes water for any purpose so as to permit
the water to overflow onto, causing damage to, or to obstruct or
damage any portion of, the State Water Resources Development System
or the department's right-of-way.
(b) When notice is given by the department, in the manner provided
in Section 12899.5, to any person permitting a condition to exist,
as described in subdivision (a) , the person shall
immediately cease and discontinue the diversion of waters or shall
discontinue and prevent the drainage, seepage, or overflow and shall
repair, or pay for the repair , of ,
any damage to the State Water Resources Development System or the
department's right-of-way. The person to whom the notice is provided
may challenge, administratively in accordance with regulations
adopted pursuant to Section 12899.9, or in a court of competent
jurisdiction, the propriety of the determination by the department.
(c) If any person is notified pursuant to subdivision (d)
(b) and fails, neglects, or refuses to cease
and discontinue the diversion, drainage, seepage, or overflow of the
waters or to make or pay for the repairs, the department may make
repairs and perform work as it determines necessary to prevent the
further drainage, diversion, overflow, or seepage of the waters.
(d) The department may recover in an action at law, in any court
of competent jurisdiction, the amount expended for those repairs and
work, and in addition, the sum of one thousand dollars ($1,000) for
each day the drainage, diversion, overflow, or seepage of the waters
is permitted to continue, after the service of the notice in the
manner specified in this chapter, together with the costs and
expenses, including attorneys attorney
's fees, incurred in the action.
SEC. 675. Section 12899.7 of the Water Code is amended to read:
12899.7. Any person who by any means willfully or negligently
injures or damages any feature of the State Water Resources
Development System or the department's right-of-way is liable for
necessary repairs, and the department may recover in an action at law
the amount expended for the repairs, together with the costs and
expenses, including attorneys attorney
's fees, incurred in that action.
SEC. 676. Section 12929.12 of the Water Code is amended to read:
12929.12. (a) It is the intent of the Legislature that sixty-five
million dollars ($65,000,00) ($65,000,000)
of the funds which that may be
transferred, pursuant to paragraph (3) of subdivision (b) of Section
12937, to the California Water Fund from the California Water
Resources Development Bond Fund, shall be appropriated to the
Environmental Water Fund. It is the intent of the Legislature,
subject to subdivision (b), to appropriate to the Environmental Water
Fund one million dollars ($1,000,000) in the 1990-91 fiscal year and
eight million dollars ($8,000,000) per year in fiscal years 1991-92
to 1998-99, inclusive. However, the director, in consultation with
the Department of Finance, may accelerate payments to the California
Water Fund for appropriation to the Environmental Water Fund if the
director deems it appropriate to do so.
(b) It is the further intent of the Legislature that if the
director determines that all or any portion of the amount
which that would otherwise be appropriated in
any fiscal year to the Environmental Water Fund in accordance with
subdivision (a), or to the Delta Flood Protection Fund pursuant to
Section 12303, is required for continued construction of the State
Water Resources Development System pursuant to Section 12938, the
entire amount which that would
otherwise be appropriated to the Environmental Fund for that fiscal
year shall be reduced to zero before any reduction is made in the
amount to be appropriated to the Delta Flood Protection Fund. It is
also the intent of the Legislature that any reduction in funds
appropriated to the Environmental Water Fund and the Delta Flood
Protection Fund pursuant to this subdivision be made up from funds
transferred to the California Water Fund pursuant to paragraph (3) of
subdivision (b) of Section 12937 in subsequent fiscal years.
SEC. 677. Section 13385.1 of the Water Code is amended to read:
13385.1. (a) (1) For the purposes of subdivision (h) of Section
13385, a "serious violation" also means a failure to file a discharge
monitoring report required pursuant to Section 13383 for each
complete period of 30 days following the deadline for submitting the
report, if the report is designed to ensure compliance with
limitations contained in waste discharge requirements that contain
effluent limitations.
(2) Paragraph (1) applies only to violations that occur on or
after January 1, 2004.
(b) (1) Notwithstanding any other provision of law, moneys
collected pursuant to this section for a failure to timely file a
report, as described in subdivision (a), shall be deposited in the
Waste Discharge Permit Fund and separately accounted for in that
fund.
(2) The funds described in paragraph (1) 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 responding to
significant water pollution problems.
(c) For the purposes of this section, paragraph (2) of subdivision
(f) of Section 13385, and subdivisions (h), (i), and (j) of Section
13385 only, "effluent limitation" means a numeric restriction
or a numerically expressed narrative restriction, on
the quantity, discharge rate, concentration, or toxicity units of a
pollutant or pollutants that may be discharged from an authorized
location. An effluent limitation may be final or interim, and may be
expressed as a prohibition. An effluent limitation, for those
purposes, does not include a receiving water limitation, a compliance
schedule, or a best management practice.
SEC. 678. Section 13465 of the Water Code is amended to read:
13465. Notwithstanding Sections 13458 and 13459, the committee
may proscribe prescribe further terms
and conditions for loan contracts to authorize a deferment on payment
of all or part of the principal.
SEC. 679. 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)
13350) 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 nor more than five thousand dollars
($5,000), for each day in which the violation occurs.
(d) Notwithstanding Section 13441, all money
moneys collected by the state pursuant to this section
shall be available to the state board upon appropriation by the
Legislature.
SEC. 680. Section 13999.8 of the Water Code is amended to read:
13999.8. (a) The sum of two hundred fifty million dollars
($250,000,000) of the money moneys in
the fund shall be deposited in the Clean Water Construction Grant
Account and is appropriated for grants and loans to municipalities to
aid in construction of eligible projects and the purposes set forth
in this section.
(b) If the federal Clean Water Act authorizes a federal loan
program for providing assistance for construction of treatment works,
which requires state matching funds, the board may establish a State
Water Pollution Control Revolving Fund to provide loans in
accordance with the federal Clean Water Act. The board, with the
approval of the committee, may transfer funds from the Clean Water
Construction Grant Account to the revolving fund for the purposes of
meeting federal requirements for state matching funds.
(c) Any contract entered into pursuant to this section may include
such any provisions as may be
determined by that the board determines
, provided that any contract concerning an eligible project
shall include, in substance, all of the following provisions:
(1) An estimate of the reasonable cost of the eligible project.
(2) An agreement by the board to pay to the municipality, during
the progress of construction or following completion of construction
as agreed upon by the parties, an amount which
that equals at least 121/2 percent of the eligible
project cost determined pursuant to federal and state laws and
regulations.
(3) An agreement by the municipality to proceed expeditiously
with, and complete, the eligible project; commence operation of the
treatment works upon completion and to properly operate and maintain
the works in accordance with applicable provisions of law; apply for
and make reasonable efforts to secure federal assistance for the
eligible project; secure the approval of the board before applying
for federal assistance in order to maximize the assistance received
in the state; and provide for payment of the municipality's share of
the cost of the eligible project.
(d) The board may, with the approval of the committee, transfer
moneys in the Clean Water Construction Grant Account to the State
Water Quality Control Fund, to be made available for loans to public
agencies pursuant to Chapter 6 (commencing with Section 13400).
(e) Grants may be made pursuant to this section to reimburse
municipalities for the state share of construction costs for eligible
projects which that received federal
assistance, but which that did not
receive an appropriate state grant due solely to depletion of the
State Clean Water and Water Conservation Fund created pursuant to the
Clean Water and Water Conservation Bond Law of 1978 (Chapter 12.5
(commencing with Section 13955)). Eligibility for reimbursement
under this section is limited to the actual construction capital
costs incurred.
(f) To the extent funds are available, if the federal share of
construction funding under Title II of the federal Clean Water Act is
reduced below 75 percent, unicipalities
municipalities otherwise eligible for a grant under this
section shall also be entitled to a loan from the Clean Water
Construction Grant Account of up to 121/2 percent of the eligible
project cost.
(g) To the extent funds are available, if the federal Clean Water
Act authorizes a federal loan program for providing assistance for
construction of treatment works, the board may make those loans in
accordance with the federal Clean Water Act and state law. The
Legislature may enact legislation that it deems necessary to
implement the state loan program.
(h) Notwithstanding any other provision of law, and to the extent
funds are available, if federal funding under Title II of the federal
Clean Water Act ceases, municipalities shall only be entitled to a
loan from the Clean Water Construction Grant Account of 25 percent of
the eligible project cost.
(i) All loans pursuant to this section are subject to all of the
following provisions:
(1) Municipalities seeking a loan shall demonstrate, to the
satisfaction of the board, that an adequate opportunity for public
participation regarding the loan has been provided.
(2) Any election held with respect to the loan shall include the
entire municipality except where the municipality proposes to accept
the loan on behalf of a specified portion, or portions, of the
municipality, in which case the referendum shall be held in that
portion or portions of the municipality only.
(3) Any loan made pursuant to this section shall be up to 25 years
with an interest rate set annually by the board at 50 percent of the
average interest rate paid by the state on general obligation bonds
for the calendar year immediately preceding the year in which the
loan agreement is executed.
(4) The first thirty million dollars ($30,000,000) in principal
and interest from loans made pursuant to this section shall be paid
to the Water Reclamation Account. All remaining principal and
interest from the loans shall be returned to the Clean Water
Construction Grant Account for new obligations.
SEC. 681. Section 20527.11 of the Water Code is amended to read:
20527.11. (a) The Board of Directors of the
Richvale Irrigation District may adopt a resolution that authorizes
persons holding title to real property within the district, or their
legal representative, to vote. Holders of title need not be residents
of the district in order to qualify as voters. Each eligible voter
shall be entitled to cast only one vote.
(b) The last equalized county assessment roll is conclusive
evidence of ownership of the real property.
(c) (1) If land is owned in joint tenancy, tenancy in common,
community property, or any other multiple ownership, the owners of
the land shall designate, in writing, which one of the owners is
deemed the owner of the
land for purposes of qualifying as a voter.
(2) The designation shall be made upon a form provided by the
district, and shall be filed with the district at
least 40 days prior to the election , and shall remain in
effect until amended or revoked. No amendment or revocation may occur
within the period of 39 days prior to any election.
(d) The district shall provide to the elections clerk a list of
eligible voters pursuant to Section 10525 of the Elections Code at
least 35 days prior to an election.
(e) The legal representative of a corporation or estate owning
real property may vote on behalf of the corporation or estate.
(f) (1) Every voter, or his or her legal representative, may vote
at any district election either in person or by a person appointed as
his or her proxy.
(2) Voting by legal representatives and the appointment of a proxy
shall be allowed in accordance with Sections 35005 and 35006 of the
Water Code.
(g) Notwithstanding Section 21100 , 21100,
any eligible voter, as specified in this section, may be a
member of the Board of Directors of the Richvale Irrigation District.
(h) (1) As used in this section, "legal representative" means an
official of a corporation owning real property or a guardian,
conservator, executor, or administrator of the estate of the holder
of title to real property who is all of the following:
(A) Appointed under the laws of this state.
(B) Entitled to the possession of the estate's real property.
(C) Authorized by the appointing court to exercise the particular
right, privilege, or immunity which that
the legal representative seeks to exercise.
(2) As used in this section, "eligible voter" means a person who
meets the requirements of Section 20527 or a person who is a holder
of title to real property within the district.
(3) The Board of Directors of the Richvale Irrigation District
may, not less than 120 days before the next general district
election, abolish the divisions of the district for that election.
The abolishment of the divisions shall be effective only for that
general election, unless the question of abolishing the divisions is
presented to the voters at that election and a majority of the votes
cast on that question are in favor of abolishing the divisions for
future elections.
(i) (1) This section shall be operative as long as the district
does not provide water, drainage services, electricity, flood control
services, or sewage disposal services for domestic purposes for
residents of the district.
(2) (A) This section shall become inoperative if the district
commences to provide any of the services described in paragraph (1).
(B) The district shall notify the Secretary of State 30 days prior
to commencing to provide any of the services described in paragraph
(1). The notice required by this subparagraph shall state that it is
being made pursuant to this subdivision.
SEC. 682. Section 23178 of the Water Code is amended to read:
23178. The provisions of Article 4 of Chapter 2 of Part
5 of this division do Article 35 (commencing with
Section 20560) of Chapter 1 of Part 3 of Division 2 of the Public
Contract Code does not apply in the case of any
contract between a district and the United States.
SEC. 683. Section 41027 of the Water Code is amended to read:
41027. (a) The board shall hold a public hearing to receive any
testimony regarding the preliminary election roll. The hearing may be
continued from time to time. Following the hearing and
deliberations, the board shall make any changes to the preliminary
election roll and shall adopt the election roll.
(b) If the preliminary election roll was prepared pursuant to
paragraph (1) of subdivision (b) of Section 41026, the adopted
election roll shall be deemed the final election roll.
(c) If the preliminary election roll was prepared pursuant to
paragraph (2) of subdivision (b) of Section 41026, the secretary
shall send the adopted election roll to the board of supervisors of
the principal county. Upon receiving the adopted election roll, the
board of supervisors of the principal county shall set the date,
time, and place for a public hearing to receive any testimony
regarding the adopted election roll. The board of supervisors shall
publish a notice of its public hearing pursuant to Section 39057. At
the hearing, the board of supervisors shall receive any testimony
regarding the adopted election roll. The hearing may be continued
from time to time. Following the hearing and deliberations, the board
of supervisors shall either approve or disapprove the adopted
election roll. If the board of supervisors approves the adopted
election roll, it shall send the final election roll to the board. If
the board of supervisors disapproves the adopted election roll, the
board of supervisors shall notify the board of its disapproval and
may recommend changes to the adopted election roll for the board to
consider. The district shall compensate the principal county for any
costs incurred by the board of supervisors pursuant to this
article chapter .
(d) The secretary shall certify and file the final election roll
not later than the date of the first publication of the notice
provided pursuant to Section 41308.
SEC. 684. Section 241.1 of the Welfare and Institutions Code is
amended to read:
241.1. (a) Whenever a minor appears to come within the
description of both Section 300 and Section 601 or 602, the county
probation department and the child welfare services department shall,
pursuant to a jointly developed written protocol described in
subdivision (b), initially determine which status will serve the best
interests of the minor and the protection of society. The
recommendations of both departments shall be presented to the
juvenile court with the petition that is filed on behalf of the
minor, and the court shall determine which status is appropriate for
the minor. Any other juvenile court having jurisdiction over the
minor shall receive notice from the court, within five calendar days,
of the presentation of the recommendations of the departments. The
notice shall include the name of the judge to whom, or the courtroom
to which, the recommendations were presented.
(b) The probation department and the child welfare services
department in each county shall jointly develop a written protocol to
ensure appropriate local coordination in the assessment of a minor
described in subdivision (a), and the development of recommendations
by these departments for consideration by the juvenile court. These
protocols shall require, which requirements shall not be limited to,
consideration of the nature of the referral, the age of the minor,
the prior record of the minor's parents for child abuse, the prior
record of the minor for out-of-control or delinquent behavior, the
parents' cooperation with the minor's school, the minor's functioning
at school, the nature of the minor's home environment, and the
records of other agencies which that
have been involved with the minor and his or her family. The
protocols also shall contain provisions for resolution of
disagreements between the probation and child welfare services
departments regarding the need for dependency or ward status and
provisions for determining the circumstances under which a new
petition should be filed to change the minor's status.
(c) Whenever a minor who is under the jurisdiction of the juvenile
court of a county pursuant to Section 300, 601, or 602 is alleged to
come within the description of Section 300, 601, or 602 by another
county, the county probation department or child welfare services
department in the county that has jurisdiction under Section 300,
601, or 602 and the county probation department or child welfare
services department of the county alleging the minor to be within one
of those sections shall initially determine which status will best
serve the best interests of the minor and the protection of society.
The recommendations of both departments shall be presented to the
juvenile court in which the petition is filed on behalf of the minor,
and the court shall determine which status is appropriate for the
minor. In making their recommendation to the juvenile court, the
departments shall conduct an assessment consistent with the
requirements of subdivision (b). Any other juvenile court having
jurisdiction over the minor shall receive notice from the court in
which the petition is filed within five calendar days of the
presentation of the recommendations of the departments. The notice
shall include the name of the judge to whom, or the courtroom to
which, the recommendations were presented.
(d) Except as provided in subdivision (e), nothing in this section
shall be construed to authorize the filing of a petition or
petitions, or the entry of an order by the juvenile court, to make a
minor simultaneously both a dependent child and a ward of the court.
(e) Notwithstanding the provisions of
subdivision (d), the probation department and the child welfare
services department, in consultation with the presiding judge of the
juvenile court, in any county may create a jointly written protocol
to allow the county probation department and the child welfare
services department to jointly assess and produce a recommendation
that the child be designated as a dual status child, allowing the
child to be simultaneously a dependent child and a ward of the court.
This protocol shall be signed by the chief probation officer, the
director of the county social services agency, and the presiding
judge of the juvenile court prior to its implementation. No juvenile
court may order that a child is simultaneously a dependent child and
a ward of the court pursuant to this subdivision unless and until the
required protocol has been created and entered into. This protocol
shall include:
(1) A description of the process to be used to determine whether
the child is eligible to be designated as a dual status child.
(2) A description of the procedure by which the probation
department and the child welfare services department will assess the
necessity for dual status for specified children and the process to
make joint recommendations for the court's consideration prior to
making a determination under this section. These recommendations
shall ensure a seamless transition from wardship to dependency
jurisdiction, as appropriate, so that services to the child are not
disrupted upon termination of the wardship.
(3) A provision for ensuring communication between the judges who
hear petitions concerning children for whom dependency jurisdiction
has been suspended while they are within the jurisdiction of the
juvenile court pursuant to Section 601 or 602. A judge may
communicate by providing a copy of any reports filed pursuant to
Section 727.2 concerning a ward to a court that has jurisdiction over
dependency proceedings concerning the child.
(4) A plan to collect data in order to evaluate the protocol
pursuant to Section 241.2.
(5) Counties that excercise exercise
the option provided for in this subdivision shall adopt either an
"on-hold" system as described in subparagraph (A) or a "lead
court/lead agency" system as described in subparagraph (B). In no
case shall there be any simultaneous or duplicative case management
or services provided by both the county probation department and the
child welfare services department. It is the intent of the
Legislature that judges, in cases in which more than one judge is
involved, shall not issue conflicting orders.
(A) In counties in which an on-hold system is adopted, the
dependency jurisdiction shall be suspended or put on hold while the
child is subject to jurisdiction as a ward of the court. When it
appears that termination of the court's jurisdiction, as established
pursuant to Section 601 or 602, is likely and that reunification of
the child with his or her parent or guardian would be detrimental to
the child, the county probation department and the child welfare
services department shall jointly assess and produce a recommendation
for the court regarding whether the court's dependency jurisdiction
shall be resumed.
(B) In counties in which a lead court/lead agency system is
adopted, the protocol shall include a method for identifying which
court or agency will be the lead court/lead agency. That court or
agency shall be responsible for case management, conducting
statutorily mandated court hearings, and submitting court reports.
SEC. 685. Section 319 of the Welfare and Institutions Code is
amended to read:
319. (a) At the initial petition hearing, the court shall examine
the child's parents, guardians, or other persons having relevant
knowledge and hear the relevant evidence as the child, the child's
parents or guardians, the petitioner, or their counsel desires to
present. The court may examine the child, as provided in Section 350.
(b) The social worker shall report to the court on the reasons why
the child has been removed from the parent's physical custody
; , the need, if any, for continued
detention ; , the available services
and the referral methods to those services that could facilitate the
return of the child to the custody of the child's parents or
guardians ; , and whether there are any
relatives who are able and willing to take temporary physical
custody of the child. The court shall order the release of the child
from custody unless a prima facie showing has been made that the
child comes within Section 300, the court finds that continuance in
the parent's or guardian's home is contrary to the child's welfare,
and any of the following circumstances exist:
(1) There is a substantial danger to the physical health of the
child or the child is suffering severe emotional damage, and there
are no reasonable means by which the child's physical or emotional
health may be protected without removing the child from the parent's
or guardian's physical custody.
(2) There is substantial evidence that a parent, guardian, or
custodian of the child is likely to flee the jurisdiction of the
court.
(3) The child has left a placement in which he or she was placed
by the juvenile court.
(4) The child indicates an unwillingness to return home, if the
child has been physically or sexually abused by a person residing in
the home.
(c) If the matter is continued pursuant to Section 322 or for any
other reason, the court shall find that the continuance of the child
in the parent's or guardian's home is contrary to the child's welfare
at the initial petition hearing or order the release of the child
from custody.
(d) (1) The court shall also make a determination on the record,
referencing the social worker's report or other evidence relied upon,
as to whether reasonable efforts were made to prevent or eliminate
the need for removal of the child from his or her home, pursuant to
subdivision (b) of Section 306, and whether there are available
services that would prevent the need for further detention. Services
to be considered for purposes of making this determination are case
management, counseling, emergency shelter care, emergency in-home
caretakers, out-of-home respite care, teaching and demonstrating
homemakers, parenting training, transportation, and any other child
welfare services authorized by the State Department of Social
Services pursuant to Chapter 5 (commencing with Section 16500) of
Part 4 of Division 9. The court shall also review whether the social
worker has considered whether a referral to public assistance
services pursuant to Chapter 2 (commencing with Section 11200) and
Chapter 7 (commencing with Section 14000) of Part 3, Chapter 1
(commencing with Section 17000) of Part 5, and Chapter 10 (commencing
with Section 18900) of Part 6 of Division 9 would have eliminated
the need to take temporary custody of the child or would prevent the
need for further detention.
(2) If the child can be returned to the custody of his or her
parent or guardian through the provision of those services, the court
shall place the child with his or her parent or guardian and order
that the services shall be provided. If the child cannot be returned
to the physical custody of his or her parent or guardian, the court
shall determine if there is a relative who is able and willing to
care for the child, and has been assessed pursuant to paragraph (1)
of subdivision (d) of Section 309.
(e) Whenever a court orders a child detained, the court shall
state the facts on which the decision is based, shall
specify why the initial removal was necessary,
shall reference the social worker's report or other
evidence relied upon to make its determination whether continuance in
the home of the parent or legal guardian in
is contrary to the child's welfare, shall
order temporary placement and care of the child to be vested with the
county child welfare department pending the hearing held pursuant to
Section 355 or further order of the court, and shall
order services to be provided as soon as possible to
reunify the child and his or her family if appropriate.
(f) (1) When the child is not released from
custody, the court may order that the child shall be placed in the
assessed home of a relative, in an emergency shelter or other
suitable licensed place, in a place exempt from licensure designated
by the juvenile court, or in the assessed home of a nonrelative
extended family member as defined in Section 362.7 for a period not
to exceed 15 judicial days.
(2) As used in this section, "relative"
means an adult who is related to the child by blood, adoption, or
affinity within the fifth degree of kinship, including stepparents,
stepsiblings, and all relatives whose status is preceded by the words
"great," "great-great," or "grand," or the spouse of any of these
persons, even if the marriage was terminated by death or dissolution.
However, only the following relatives shall be given preferential
consideration for placement of the child: an adult who is a
grandparent, aunt, uncle, or sibling of the child.
(3) The court shall consider the
recommendations of the social worker based on the assessment pursuant
to paragraph (1) of subdivision (d) of Section 309 of the relative's
home, including the results of a criminal records check and prior
child abuse allegations, if any, prior to ordering that the child be
placed with a relative. The court shall order the parent to disclose
to the social worker the names, residences, and any known
identifying information of any maternal or paternal relatives of the
child. The social worker shall initiate the assessment pursuant to
Section 361.3 of any relative to be considered for continuing
placement.
(g) (1) At the initial hearing upon the petition filed in
accordance with subdivision (c) of Rule 1406 of the California Rules
of Court or anytime thereafter up until the time that the minor is
adjudged a dependent child of the court or a finding is made
dismissing the petition, the court may temporarily limit the right of
the parent or guardian to make educational decisions for the child
and temporarily appoint a responsible adult to make educational
decisions for the child if all of the following conditions are found:
(A) The parent or guardian is unavailable, unable, or unwilling to
exercise educational rights for the child.
(B) The county placing agency has made diligent efforts to locate
and secure the participation of the parent or guardian in educational
decisionmaking.
(C) The child's educational needs cannot be met without the
temporary appointment of a responsible adult.
(2) If the court cannot identify a responsible adult to make
educational decisions for the child and the appointment of a
surrogate parent as defined in subdivision (a) of Section 56050 of
the Education Code is not warranted, the court may, with the input of
any interested person, make educational decisions for the child. If
the court makes educational decisions for the child, the court shall
also issue appropriate orders to ensure that every effort is made to
identify a responsible adult to make future educational decisions for
the child.
(3) Any temporary appointment of a responsible adult and temporary
limitation on the right of the parent or guardian to make
educational decisions for the child shall be specifically addressed
in the court order. Any order made under this section shall expire at
the conclusion of the hearing held pursuant to Section 361 or upon
dismissal of the petition. Upon the entering of disposition orders
, any additional needed limitation on the parent's or
guardian's educational rights shall be addressed pursuant to Section
361.
SEC. 686. Section 1752.81 of the Welfare and Institutions Code is
amended to read:
1752.81. (a) Whenever the Director of the Youth
Authority Chief Deputy Secretary for Juvenile Justice
has in his or her possession in trust funds of a ward committed
to the authority division , the funds
may be released for any purpose when authorized by the ward. When the
sum held in trust for any ward by the Director of the Youth
Authority Chief Deputy Secretary for Juvenile Justice
exceeds five hundred dollars ($500), the amount in excess of
five hundred dollars ($500) may be expended by the director
chief deputy secretary pursuant to a lawful
order of a court directing payment of the funds, without the
authorization of the ward thereto.
(b) Whenever an adult or minor is committed to or housed in a
Youth Authority D ivision of
Juvenile Facilities facility and he or she owes a restitution
fine imposed pursuant to Section 13967 of the Government Code, as
operative on or before September 28, 1994, or Section 1202.4 or
1203.04 of the Penal Code, as operative on or before August 2, 1995,
or pursuant to Section 729.6, 730.6 or 731.1, as operative on or
before August 2, 1995, the Director of the Youth Authority
Chief Deputy Secretary for Juvenile Justice
shall deduct the balance owing on the fine amount from the trust
account deposits of a ward, up to a maximum of 50 percent of the
total amount held in trust, unless prohibited by federal law. The
director chief deputy secretary shall
transfer that amount to the State Board of Control
California Victim Compensation and Government Claims Board
for deposit in the Restitution Fund in the State Treasury. Any
amount so deducted shall be credited against the amount owing on the
fine. The sentencing court shall be provided a record of the
payments.
(c) Whenever an adult or minor is committed to, or housed in, a
Youth Authority Division of Juvenile
Facilities facility and he or she owes restitution to a victim
imposed pursuant to Section 13967 of the Government Code, as
operative on or before September 28, 1994, or Section 1202.4 or
1203.04 of the Penal Code, as operative on or before August 2, 1995,
or pursuant to Section 729.6, 730.6, or 731.1, as operative on or
before August 2, 1995, the Director of the Youth Authority
Chief Deputy Secretary for Juvenile Justice
shall deduct the balance owing on the order amount from the trust
account deposits of a ward, up to a maximum of 50 percent of the
total amount held in trust, unless prohibited by federal law. The
director chief deputy secretary shall
transfer that amount directly to the victim. If the restitution is
owed to a person who has filed an application with the Victims of
Crime Program, the director chief deputy
secretary shall transfer that amount to the State
Board of Control California Victim Compensation and
Government Claims Board for direct payment to the victim or
payment shall be made to the Restitution Fund to the extent that the
victim has received assistance pursuant to that program. The
sentencing court shall be provided a record of the payments made to
victims and of the payments deposited to the Restitution Fund
pursuant to this subdivision.
(d) Any compensatory or punitive damages awarded by trial or
settlement to a minor or adult committed to the Department
of the Youth Authority Division of Juvenile Facilities
in connection with a civil action brought against any federal,
state, or local jail or correctional facility, or any official or
agent thereof, shall be paid directly, after payment of reasonable
attorney's fees and litigation costs approved by the court, to
satisfy any outstanding restitution orders or restitution fines
against the minor or adult. The balance of any award shall be
forwarded to the minor or adult committed to the Department
of the Youth Authority Division of Juvenile Facilities
after full payment of all outstanding restitution orders and
restitution fines subject to subdivision (e). The Department
of the Youth Authority Division of Juvenile
Facilities shall make all reasonable efforts to notify the
victims of the crime for which the minor or adult was committed
concerning the pending payment of any compensatory or punitive
damages. This subdivision shall apply to cases settled or awarded on
or after April 26, 1996, pursuant to Sections 807 and 808 of
Title VIII of the federal Prison Litigation Reform Act of 1995
(Title 8, P.L. 104-134) (P.L. 104-134; 8
U.S.C. Sec. 3626 (notes)) .
(e) The director chief deputy secretary
shall deduct and retain from the trust account deposits of a
ward, unless prohibited by federal law, an administrative fee that
totals 10 percent of any amount transferred pursuant to subdivision
(b) and (c), or 5 percent of any amount transferred pursuant to
subdivision (d). The director chief deputy
secretary shall deposit the administrative fee moneys in a
special deposit account for reimbursing administrative and support
costs of the restitution and victims program of the
Department of the Youth Authority Division of Juvenile
Facilities . The director chief deputy
secretary , at his or her discretion, may retain any excess
funds in the special deposit account for future reimbursement of the
department's division's administrative
and support costs for the restitution and victims program or may
transfer all or part of the excess funds for deposit in the
Restitution Fund.
(f) When a ward has both a restitution fine and a restitution
order from the sentencing court, the Department of the Youth
Authority Division of Juvenile Facilities shall
collect the restitution order first pursuant to subdivision (c).
(g) Notwithstanding subdivisions
(a), (b), and (c), whenever the Director of the Youth
Authority Chief Deputy Secretary for
Juvenile Justice holds in trust a ward's funds in excess of
five dollars ($5) and the ward cannot be located, after one year from
the date of discharge, absconding from the Department of
the Youth Authority Division of Juvenile Facilities
supervision, or escape, the Department of the Youth
Authority Division of Juvenile Facilities shall
apply the trust account balance to any unsatisfied victim restitution
order or fine owed by that ward. If the victim restitution order or
fine has been satisfied, the remainder of the ward's trust account
balance, if any, shall be transferred to the Benefit Fund to be
expended pursuant to Section 1752.5. If the victim to whom a
particular ward owes restitution cannot be located, the
money moneys shall be transferred to the Benefit
Fund to be expended pursuant to Section 1752.5.
SEC. 687. Section 1773 of the Welfare and Institutions Code is
amended to read:
1773. (a) No condition or restriction upon
the obtaining of an abortion by a female committed to the
authority Division of Juvenile Facilities ,
pursuant to the Therapeutic Abortion Act (Article 2 (commencing with
Section 123400) of Chapter 2 of Part 2 of Division 106 of the Health
and Safety Code), other than those contained in that act, shall be
imposed. Females found to be pregnant and desiring abortions
, shall be permitted to determine their eligibility for an
abortion pursuant to law, and if determined to be eligible, shall be
permitted to obtain an abortion.
(b) The rights provided for females by this
section shall be posted in at least one conspicuous place to which
all females have access.
If Assembly Bill No. 2087 of the 1972 Regular Session of the
Legislature is chaptered, this section shall remain in effect only
until the 61st day after the final adjournment of the 1974 Regular
Session of the Legislature, and as of that date is repealed.
SEC. 688. Section 1800 of the Welfare and Institutions Code is
amended to read:
1800. (a) Whenever the Department
of the Youth Authority Division of Juvenile Facilities
determines that the discharge of a person from the control of
the department division at the time
required by Section 1766, 1769, 1770, 1770.1, or 1771, as applicable,
would be physically dangerous to the public because of the person's
mental or physical deficiency, disorder, or abnormality
which that causes the person to have serious
difficulty controlling his or her dangerous behavior, the
department division , through its
director Chief Deputy Secretary for Juvenile Justice
, shall request the prosecuting attorney to petition the
committing court for an order directing that the person remain
subject to the control of the authority
division beyond that time. The petition shall be filed at least
90 days before the time of discharge otherwise required. The
petition shall be accompanied by a written statement of the facts
upon which the department division
bases its opinion that discharge from control of the
department division at the time stated would be
physically dangerous to the public, but the petition may not be
dismissed and an order may not be denied merely because of technical
defects in the application.
(b) The prosecuting attorney shall promptly
notify the Department of the Youth Authority
Division of Juvenile Facilities of a decision not to file a
petition.
SEC. 689. Section 1800.5 of the Welfare and Institutions Code is
amended to read:
1800.5. Notwithstanding any other provision of law, the
Youth Authority Board of Parole Hearings may
request the Director of the Youth Authority
Chief Deputy Secretary for Juvenile Justice to review any case
where in which the department
Division of Juvenile Facilities has not made a
request to the prosecuting attorney pursuant to Section 1800 and the
board finds that the ward would be physically dangerous to the public
because of the ward's mental or physical deficiency, disorder, or
abnormality which that causes the person
to have serious difficulty controlling his or her dangerous
behavior. Upon the board's request, a mental health professional
designated by the director chief deputy
secretary shall review the case and thereafter may affirm the
finding or order additional assessment of the ward. If, after review,
the mental health designee affirms the initial finding, concludes
that a subsequent assessment does not demonstrate that a ward is
subject to extended detention pursuant to Section 1800, or fails to
respond to a request from the board within the timeframe mandated by
this section, the board thereafter may request the prosecuting
attorney to petition the committing court for an order directing that
the person remain subject to the control of the authority
division pursuant to Section 1800 if the board
continues to find that the ward would be physically dangerous to the
public because of the ward's mental or physical deficiency, disorder,
or abnormality which that causes the
person to have serious difficulty controlling his or her dangerous
behavior. The board's request to the prosecuting attorney shall be
accompanied by a copy of the ward's file and any documentation upon
which the board bases its opinion, and shall include any
documentation of the department's division's
review and recommendations made pursuant to this section. Any
request for review pursuant to this section shall be submitted to the
director chief deputy secretary not
less than 120 days before the date of final discharge, and the review
shall be completed and transmitted to the board not more than 15
days after the request has been received.
SEC. 690. Section 2017 of the Welfare and Institutions Code is
amended to read:
2017. Proposals for both youth centers and youth shelters shall
do all of the following:
(1) Document the need for the applicant's proposal.
(2) Contain a written commitment and a plan for the delivery of
programs, including, where appropriate, plans for innovative
nontraditional programs designed to meet the needs of the youth of
the targeted community.
(3) (A) Contain a match for funding which is
as follows :
(i) Equal to 25 percent of the total amount requested, when the
applicant is a public agency or joint venture involving a public
agency.
(ii) Equal to 15 pecent percent of
the total amount requested, when the applicant is a private nonprofit
agency.
(B) The match may be in cash or in kind.
(4) Document the cost effectiveness of the proposal.
(5) Contain a written commitment and plan to develop and implement
a process to receive and consider feedback and suggestions from the
community served including a separate mechanism for the youth it
serves. A board of directors reflecting broad representation of the
community will satisfy the requirement for community input.
(6) Document plans to utilize and coordinate with other
organizations serving the same youth population , including
making available center facilities where possible.
SEC. 691. Section 3150 of the Welfare and Institutions Code is
amended to read:
3150. (a) Commencing July 1, 2005, any
reference to the Narcotic Addict Evaluation Authority refers to the
Board of Parole Hearings, any reference to the chairperson of the
authority is to the chair of the board, and any reference to a member
of the authority is to a commissioner of the board.
(b) The board shall conduct a full and complete study of the cases
of all patients who are certified by the Secretary of the Department
of Corrections and Rehabilitation to the board as having recovered
from addiction or imminent danger of addiction to such an extent that
release in an outpatient status is warranted.
(c) Members of other similar boards may be assigned to hear cases
and make recommendations to the board on these matters. Those
recommendations shall be made in accordance with policies established
by a majority of the total membership of the board.
SEC. 692. Section 3151 of the Welfare and Institutions Code is
amended to read:
3151. (a) Commencing July 1, 2005, after an
initial period of observation and treatment, and subject to the
rules and policies established by the secretary, whenever a person
committed under Article 2 (commencing with Section 3050)
or Article 3 of this chapter (commencing with
Section 3100) has recovered from his or her
addiction or imminent danger of addiction to such an extent that, in
the opinion of the secretary, release in an outpatient status is
warranted, the secretary shall certify that fact to the board. If the
secretary has not so certified within the preceding 12 months, in
the anniversary month of the commitment of any person committed under
this chapter , his or her case shall
automatically be referred to the board for consideration of the
advisability of release in outpatient status. Upon certification by
the secretary or upon automatic certification, the board may release
the person in an outpatient status subject to all rules and
regulations adopted by the board, and subject to all conditions
imposed by the board, whether of general applicability or restricted
to the particular person released in outpatient status, and subject
to being retaken and returned to inpatient status as prescribed in
those rules, regulations, or conditions. The supervision of those
persons while in an outpatient status shall be administered by the
department. Those persons are not subject to the provisions
of Section 2600 of the Penal Code.
(b) A single commissioner of the board may,
by written or oral order, suspend the release in outpatient status of
a person and cause him or her to be retaken, until the next meeting
of the board. The written order of any commissioner shall be a
sufficient warrant for any peace officer to return persons to
physical custody.
(c) It is the duty of all peace officers to
execute any order under this section in the same manner as ordinary
criminal process.
SEC. 693. Section 4127 of the Welfare and Institutions Code is
amended to read:
4127. (a) Whenever any patient in any state
institution subject to the jurisdiction of the State Department of
Mental Health escapes, or is discharged ,
or is on leave of absence from such the
institution, and any personal funds or property of
such the patient remains in the hands of the
superintendent thereof , and no demand is made
upon said the superintendent by the
owner of the funds or property or his or her legally
appointed representative, all money and other intangible personal
property of such the patient, other
than deeds, contracts, or assignments, remaining in the custody or
possession of the superintendent thereof shall be
held by him or her for a period of seven years from the
date of such the escape, discharge, or
leave of absence, for the benefit of such the
patient or his or her successors in interest
; provided, however, that unclaimed .
Unclaimed personal funds or property of minors on leave of
absence may be exempted from the provisions of
this section during the period of their minority and for a period of
one year thereafter, at the discretion of the Director of Mental
Health.
(b) Upon the expiration of said
the seven-year period, any money and other
intangible property, other than deeds, contracts, or assignments,
remaining unclaimed in the custody or possession of the
superintendent shall be subject to the provisions of
Chapter 7 (commencing with Section 1500) of Title 10 of
Part 3 of the Code of Civil Procedure.
(c) Upon the expiration of one year from the
date of such the escape, discharge
, or parole , the following shall apply :
(a)
(1) All deeds, contracts , or assignments
shall be filed by the superintendent with the public administrator of
the county of commitment of such the
patient.
(b)
(2) All tangible personal property other than money,
remaining unclaimed in his the superintendent'
s custody or possession, shall be sold by the superintendent at
public auction, or upon a sealed-bid basis, and the proceeds of the
sale shall be held by him or her subject to the
provisions of Section 4125 of this code ,
and subject to the provisions of Chapter
7 (commencing with Section 1500) of Title 10 of Part 3 of the Code
of Civil Procedure. If he the superintendent
deems it expedient to do so, the superintendent may accumulate
the property of several patients and may seal
sell the property in such lots as
he may determine that the superintendent determines
, provided that he the superintendent
makes a determination as to each patient's share of the
proceeds.
(d) If any tangible personal property
covered by this section is not salable at public auction or upon a
sealed-bid basis, or if it has no intrinsic value ,
or if its value is not sufficient to
justify its retention by the superintendent to be offered for sale at
public auction or upon a sealed-bid basis at a later date, the
superintendent may order it destroyed.
SEC. 694. Section 4242 of the Welfare and Institutions Code is
amended to read:
4242. As used in this chapter , the following definitions
apply :
(a) "Family" means persons whose children, spouses, siblings,
parents, grandparents, or grandchildren have a serious mental
disorder.
(b) "Serious mental disorder" means a mental disorder
which that is severe in degree and
pesistent persistent in duration and
which that may cause behavioral disorder or
impair functioning so as to interfere substantially with activities
of daily living. Serious mental disorders include schizophrenia,
major affective disorders, and other severely disabling mental
disorders.
SEC. 695. Section 4461 of the Welfare and Institutions Code is
amended to read:
4461. (a) All expenses incurred in
returning such persons an adult
developmentally disabled person to other states shall be paid
by this state, the person , or his or her
relatives, but the expense of returning residents
an adult developmentally disabled person who is a resident
of this state shall be borne by the state making the returns.
(b) The cost and expense incurred in
effecting the transportation of such the
nonresident persons to the states in which they have residence
shall be advanced from the funds appropriated for that purpose
, or, if necessary, from the money appropriated
for the care of developmentally disabled persons upon vouchers
approved by the State Board of Control
California Victim Compensation and Government Claims Board .
SEC. 696. Section 4839 of the Welfare and Institutions Code is
amended to read:
4839. The State Department of Developmental Services
may study and prepare a plan in cooperation with the State Council on
Developmental Disabilities. Such a The
plan should consider the following: necessary
(a) Necessary technical
assistance, training, and evaluation to assure standards of quality
and program success.
(b) Maximize Maximization of
existing state and federal resources available to assist persons with
developmental special needs to live in the least restrictive
environment possible, including the following :
(1) Federal housing subsidy and assistance.
(2) Supplemental security income.
(3) Local social services.
(4) Local and state health services and related resources.
(c) Procedural standards for designated agencies, including
the following :
(1) Program development process.
(2) Training for workers in the developmental services field.
(3) Management information system.
(4) Fiscal accountability and cost benefit control.
(5) Establishment of contractual relationships.
(6) Evaluation.
SEC. 697. Section 5723.5 of the Welfare and Institutions Code is
amended to read:
5723.5. Nothwithstanding Not
withstanding any other provision of state law, and to the
extent permitted by federal law and consistent with federal
regulations governing these claims, the state may seek federal
reimbursement for back claims under the Short-Doyle Medi-Cal program.
SEC. 698. Section 7328 of the Welfare and Institutions Code is
amended to read:
7328. Whenever a person , who is
committed to an institution subject to the jurisdiction of the State
Department of Mental Health or the State Department of Developmental
Services , under one of the commitment laws which
that provides for reimburement
reimbursement for care and treatment to the
state by the county of commitment of such the
person, is accused of committing a crime while confined in
such the institution and is committed
by the court in which the crime is charged to another institution
under the jurisdiction of the State Department of Mental Health or
the Department of Corrections and Rehabilitation , the
state rather than the county of commitment shall bear the subsequent
cost of supporting and caring for such the
person.
SEC. 699. Section 7515 of the Welfare and Institutions Code is
amended to read:
7515. The medical director may, with the approval of the
department having jurisdiction, cause the preemptory
per emptory discharge of any person
who has been a patient for the period of one month.
SEC. 700. Section 10053 of the Welfare and Institutions Code is
amended to read:
10053. (a) "Services" means those
activities and functions performed by social work staff and related
personnel of the department and county departments with or in behalf
of individuals or families, which are directed toward the improvement
of the capabilities of such the
individuals or families maintaining or achieving a sound family life,
rehabilitation, self-care, and economic independence.
(b) Services for children shall include the
coordinated efforts of the State Departments of Social Services and
Education to insure ensure that all
children in receipt of aid under Aid to Families with
Dependent Children CalWORKs are afforded the
opportunity to participate and progress under an educational program
which that will lead to their
functioning at full capacity upon reaching maturity. The educational
services aspect of public social services includes education for
parents in food preparation and provision for nutritional supplements
to the extent necessary and as authorized by Article 7
9 (commencing with Section 11901)
49510 of Chapter 4 9
of Division 9 Part 27 of the
Education Code.
SEC. 701. Section 11212 of the Welfare and Institutions Code is
amended to read:
11212. (a) The state, through the county
welfare department, shall reimburse the foster parent or foster
parents for the cost of the burial plot and funeral expenses incurred
for any child who, at the time of death, is receiving foster care,
as defined in Section 11251, to the extent that the foster parent or
foster parents are not otherwise reimbursed for costs incurred for
such those purposes. The
(b) The state, through the county
welfare department, shall pay the burial costs and funeral expenses
directly to the funeral home and the burial plot owner when
either one of the following conditions exists: (a) the
(1) The foster parent or foster
parents request such the direct payment
or (b) the .
(2) The child's death is due to
alleged criminal negligence or other alleged criminal action on the
part of the foster parent or foster parents. The
(c) The foster parent, or the
funeral home and burial plot provider, shall file a claim for
reimbursement of costs with the county welfare department at the time
and in the manner specified by the department. The county welfare
department shall pay such the claims in
an amount not to exceed the level of reimbursement allowed by the
State Board of Control California Victim
Compensation and Government Claims Board for burial costs and
funeral expenses under its Victims of Violent Crimes program, which
is contained in Article 1 (commencing with Section 13959) of Chapter
5 of Part 4 of Division 3 of Title 2 of the Government Code. Claims
for the burial costs and funeral expenses for a foster child shall be
paid out of funds appropriated annually to the department for
such those purposes.
SEC. 702. Section 11450.019 of the Welfare and Institutions Code
is amended to read:
11450.019. Effective the first day of the month following 90 days
after a change in federal law that allows states to reduce aid
payments without any risk to federal funding under Title XIX of the
Social Security Act contained in Subchapter XIX (commencing with
Section 1396) of Chapter 7 of Title 42 of the United States Code, the
reductions in maximum aid payments specified in Section
Sections 11450.01, 11450.015, and 11450.017
shall not be applied when all of the parents or caretaker relatives
of the aided child living in the home of the aided child meet one of
the following conditions:
(a) The individual is disabled and receiving benefits under
Section 12200 or 12300.
(b) The individual is a nonparent caretaker who is not included in
the assistance unit with the child.
(c) The individual is disabled and is receiving State Disability
Insurance benefits or Worker's Compensation Temporary Disability
benefits.
SEC. 703. Section 11495.25 of the Welfare and Institutions Code is
amended to read:
11495.25. Sworn statements by a victim of past or present abuse
by a victim shall be sufficient to establish abuse
unless the agency documents in writing an independent, reasonable
basis to find the recipient not credible. Evidence may also include,
but is not limited to: police, government agency, or court records or
files; documentation from a domestic violence program, legal,
clerical, medical or other professional from whom the applicant or
recipient has sought assistance in dealing with abuse; or other
evidence, such as a statement from any other individual with
knowledge of the circumstances that provide the basis for the claim,
or physical evidence of abuse, or any other
evidence that supports the statement.
SEC. 704. Section 14092.35 of the Welfare and Institutions Code is
amended to read:
14092.35. To the extent that this article proves to be effective
in reducing the cost of uncordinated
uncoordinated primary care delivered in the hospital emergency
room or the costs of duplicative, unnecessary , or
avoidable services, program savings may be shared with primary care
providers who enroll beneficiaries under this article.
SEC. 705. Section 14125.9 of the Welfare and Institutions Code is
amended to read:
14125.9. Nothing in this section article
shall be interpreted as limiting or interfering in any way with
the department's authority to contract for the provision of
incontinence medical supplies pursuant to subdivision (b) of Section
14105.3.
SEC. 706. Section 14148.9 of the Welfare and Institutions Code, as
added by Section 14 of Chapter 278 of the Statutes of 1991, is
amended to read:
14148.9. (a) The Legislature finds and declares that there is a
strong statistical relationship between early entry into prenatal
care and healthy birth outcomes. An investment in early intervention
is highly cost-effective and prevents untold suffering.
(b) It is the intent of the Legislature that the goals of the
program established pursuant to this article, in combination with
other programs for pregnant women and children , shall be
as follows :
(1) To improve access to and quality of prenatal care by making
existing programs serving poor women more accessible through
outreach, coordination, and removal of barriers to care.
(2) To combine efforts with other programs to measurably reduce
the number of women who smoke, use drugs, or engage in other
unhealthy practices during pregnancy.
(c) (1) In order to achieve
these goals, it is the intent of the Legislature to improve and
coordinate existing programs for pregnant women and infants and to
remove barriers to care with an intense focus on women who are at
high risk of delivering a low or high birth weight baby or a baby
which who will suffer from major health
problems or disabilities.
(d) The program implemented pursuant to this article shall focus
on those target populations that are comprised of pregnant high risk
women or potentially pregnant teenagers, pregnant women ,
and women of childbearing age who are likely to become pregnant who
smoke, consume alcoholic beverages, or use controlled substances,
and Black, Hispanic, Native American, and
Asian-Pacific Island women who are pregnant or of childbearing age,
and uninsured women of childbearing age.
SEC. 707. Section 14166.18 of the Welfare and Institutions Code is
amended to read:
14166.18. (a) With respect to each project year, the director
shall determine a baseline funding amount for each nondesignated
public hospital that was an eligible hospital under paragraph (3) of
subdivision (a) of Section 14105.98 for both the 2004-05 fiscal year
and the project year. A hospital's baseline funding amount shall be
an amount equal to the total amount paid to the hospital for
inpatient hospital services rendered to Medi-Cal beneficiaries during
the 2004-05 fiscal year, including the following Medi-Cal
payments, but excluding payments received under the Medi-Cal
Specialty Mental Health Services Consolidation Program:
(1) Base payments under the selective provider contracting program
as provided for under Article 2.6 (commencing with Section 14081) or
the Medi-Cal state plan cost reimbursement system for inpatient
hospital services for noncontracting hospitals.
(2) Emergency Services and Supplemental Payments Fund payments as
provided for under Section 14085.6.
(3) Medi-Cal Medical Education Supplemental Payment Fund payments
and Large Teaching Emphasis Hospital and Children's Hospital Medi-Cal
Medical Education Supplemental Payment Fund payments as provided for
under Sections 14085.7 and 14085.8,
respectively.
(4) Small and Rural Hospital Supplemental Payments Fund payments
as provided for under Section 14085.9.
(5) Disproportionate share hospital payment adjustments as
provided for under Section 14105.98.
(6) Administrative day payments as provided for under Section
51542 of Title 22 of the California Code of Regulations.
(b) The aggregate nondesignated public hospital baseline funding
amount shall be the sum of all baseline funding amounts determined
under subdivision (a).
(c) With respect to each project year beginning after the 2005-06
project year, an aggregate nondesignated public hospital adjusted
baseline funding amount shall be determined as follows:
(1) The department shall determine the aggregate total Medi-Cal
revenue, using amounts determined under subdivision (a), with respect
to inpatient hospital services rendered during the 2004-05 fiscal
year for nondesignated public hospitals that were eligible hospitals
under paragraph (3) of subdivision (a) of Section 14105.98 on the
last day of the project year less the total amount of
disproportionate share hospital payments identified in paragraph (5)
of subdivision (a) for those hospitals.
(2) The department shall determine the aggregate total Medi-Cal
revenue, using amounts determined under subdivision (a), with respect
to inpatient hospital services rendered during the fiscal year
preceding the project year for which the nondesignated public
hospital adjusted baseline funding amount is being calculated for the
nondesignated pubic public hospitals
described in paragraph (1), less the total amount of disproportionate
share hospital payments in paragraph (5) of subdivision (a) for
those hospitals.
(3) The department shall:
(A) Calculate the difference between the amount determined under
paragraph (1) and the amount determined under paragraph (2).
(B) Determine the percentage increase or decrease by dividing the
difference in subparagraph (A) by the amount in paragraph (1).
(C) Apply the percentage in subparagraph (B) to the aggregate
nondesignated public hospital baseline funding amount determined
under subdivision (b) less the total amount of disproportionate share
hospital payments in paragraph (5) of subdivision (a) for those
hospitals.
(D) The aggregate nondesignated public hospital adjusted baseline
funding amount is the amount determined in subdivision (b), plus the
amount determined in subparagraph (C).
SEC. 708. Section 14171.5 of the Welfare and Institutions Code is
amended to read:
14171.5. Any institutional provider of health care services that
obtained reimbursement under this chapter to which it is not entitled
shall be subject to the following interest charges or penalties:
(a) When it is established upon audit that the provider has
claimed payments under this chapter to which it is not entitled, the
provider shall pay, in addition to the amount improperly received,
interest at the rate specified by subdivision (h) of Section 14171.
(b) When it is established upon audit that the provider claimed
payments related to services or costs that the department had
previously notified the provider in an audit report that the costs or
services were not reimbursable, the provider shall pay in addition
to the amount improperly claimed, a penalty of 10 percent of the
amount improperly claimed after this notice, plus the cost of the
audit. In addition, interest shall be assessed at the rate specified
in subdivision (h) of Section 14171. Providers who wish to preserve
appeal rights or to challenge the department's positions regarding
appeal issues, may claim such the cost
or services and not be reimbursed therefor , provided that
if they are identified and presented separately
on the cost report.
(c) When it is established that the provider fraudulently claimed
and received payments under this chapter, the provider shall pay a
penalty of 25 percent of the amount improperly claimed, plus the cost
of the audit, in addition to the amount thereof. In addition,
interest will be assessed at the rate specified by subdivision (h) of
Section 14171. A fraudulent claim is a claim upon which the provider
has been convicted of fraud upon the program. Nothing in this
section shall prevent the imposition of any other civil or criminal
penalties to which the provider may be liable.
(d) Appeals to action taken in subdivisions (a), (b), and (c) of
Section 14171.5 above are subject to the administrative appeals
process provided by Section 14171.
(e) Penalties paid by providers under subdivisions (a), (b), and
(c) of Section 14171.5 are not reimbursable by the program.
(f) As used in this section, "the cost of the audit" includes
actual hourly wages, travel, and incidental expenses at rates
allowable by State Board of Control
California Victim Compensation and Government Claims Board
rules, and applicable overhead costs.
SEC. 709. Section 14171.6 of the Welfare and Institutions Code is
amended to read:
14171.6. (a) (1) Any provider, as defined in paragraph (3), that
obtains reimbursement under this chapter to which it is not entitled
shall be subject to interest charges or penalties as specified in
this section.
(2) When it is established upon audit that the provider has not
received reimbursement to which the provider is entitled, the
department shall pay the provider interest assessed at the rate, and
in the manner, specified in subdivision (g) of Section 14171.
(3) For purposes of this section, "provider" means any provider,
as defined in Section 14043.1.
(b) When it is established upon audit that the provider has
claimed payments under this chapter to which it is not entitled, the
provider shall pay, in addition to the amount improperly received,
interest at the rate specified by subdivision (h) of Section 14171.
(c) (1) When it is established upon audit that the provider
claimed payments related to services or costs that the department had
previously notified the provider in an audit report that the costs
or services were not reimbursable, the provider shall pay, in
addition to the amount improperly claimed, a penalty of 10 percent of
the amount improperly claimed after receipt of the notice, plus the
cost of the audit.
(2) In addition to the penalty and costs specified by paragraph
(1), interest shall be assessed at the rate specified in subdivision
(h) of Section 14171.
(3) Providers that wish to preserve appeal rights or to challenge
the department's positions regarding appeal issues may claim the
costs or services and not be reimbursed therefor if they are
identified and presented separately on the cost report.
(d) (1) When it is established that the provider fraudulently
claimed and received payments under this chapter, the provider shall
pay, in addition to that portion of the claim that was improperly
claimed, a penalty of 300 percent of the amount improperly claimed,
plus the cost of the audit.
(2) In addition to the penalty and costs specified by paragraph
(1), interest shall be assessed at the rate specified by subdivision
(h) of Section 14171.
(3) For purposes of this subdivision, a fraudulent claim is a
claim upon which the provider has been convicted of fraud upon the
Medi-Cal program.
(e) Nothing in this section shall prevent the imposition of any
other civil or criminal penalties to which the provider may be
liable.
(f) Any appeal to any action taken pursuant to subdivision (b),
(c), or (d) is subject to the administrative appeals process provided
by Section 14171.
(g) As used in this section, "cost of the audit" includes actual
hourly wages, travel, and incidental expenses at rates allowable by
rules adopted by the State Board of Control
California Victim Compensation and Government Claims Board and
applicable overhead costs that are incurred by employees of the state
in administering this chapter with respect to the performance of
audits.
(h) This section shall not apply to any clinic licensed pursuant
to subdivision (a) of Section 1204 of the Health and Safety Code,
clinics exempt from licensure under Section 1206 of the Health and
Safety Code, health facilities licensed under Chapter 2 (commencing
with Section 1250) of Division 2 of the Health and Safety Code, or to
any provider that is operated by a city, county, or school district.
SEC. 710. Section 14504 of the Welfare and Institutions Code is
amended to read:
14504. (a) The Male Involvement Program shall be a continuing
program within the Office of Family Planning with the goal of
reducing teenage pregnancy through promoting primary prevention
skills and motivation in adolescent boys and young men. In order to
accomplish this goal, the program shall assist local programs to do
all of the following:
(1) Increase community and individual awareness regarding the
importance of the roles and responsibilites
responsibilitie s of adolescent boys and young men
in the reduction of teenage pregnancies.
(2) Reinforce community values that support these roles and
responsibilities.
(3) Increase knowledge, skills, and motivation of at-risk
adolescent boys and young adult men in order to actively promote
their role in reducing teenage pregnancies.
(b) Grants shall be made available to qualifying public or private
nonprofit providers for implementation of the Male Involvement
Program.
(c) This section shall be implemented to the extent funding is
made available through the federal government, or in the annual
Budget Act or another state statute, or any combination of any
sources of funding.
SEC. 711. Section 15634 of the Welfare and Institutions Code, as
added by Section 8 of Chapter 140 of the Statutes of 2005, is amended
to read:
15634. (a) No care custodian, clergy member, health practitioner,
or employee of an adult protective service
services agency or a local law enforcement agency who reports a
known or suspected instance of elder or dependent adult abuse shall
be civilly or criminally liable for any report required or authorized
by this article. Any other person reporting a known or suspected
instance of elder or dependent adult abuse shall not incur civil or
criminal liability as a result of any report authorized by this
article, unless it can be proven that a false report was made and the
person knew that the report was false. No person required to make a
report pursuant to this article, or any person taking photographs at
his or her discretion, shall incur any civil or criminal liability
for taking photographs of a suspected victim of elder or dependent
adult abuse or causing photographs to be taken of such a
the suspected victim or for disseminating the
photographs with the reports required by this article. However, this
section shall not be construed to grant immunity from this liability
with respect to any other use of the photographs.
(b) No care custodian, clergy member, health practitioner, or
employee of an adult protective services agency or a local law
enforcement agency who, pursuant to a request from an adult
protective services agency or a local law enforcement agency
investigating a report of known or suspected elder or dependent adult
abuse, provides the requesting agency with access to the victim of a
known or suspected instance of elder or dependent adult abuse, shall
incur civil or criminal liability as a result of providing that
access.
(c) The Legislature finds that, even though it has provided
immunity from liability to persons required to report elder or
dependent adult abuse, immunity does not eliminate the possibility
that actions may be brought against those persons based upon required
reports of abuse. In order to further limit the financial hardship
that those persons may incur as a result of fulfilling their legal
responsibilities, it is necessary that they not be unfairly burdened
by legal fees incurred in defending those actions. Therefore, a care
custodian, clergy member, health practitioner, or an
employee of an adult protective services agency or a local
law enforcement agency may present to the State Board of
Control California Victim Compensation and Government
Claims Board a claim for reasonable attorneys'
attorney 's fees incurred in any
action against that person on the basis of making a report required
or authorized by this article if the court has dismissed the action
upon a demurrer or motion for summary judgment made by that person,
or if he or she prevails in the action. The State Board of
Control California Victim Compensation and Government
Claims Board shall allow that claim if the requirements of this
subdivision are met, and the claim shall be paid from an
appropriation to be made for that purpose. Attorneys'
Attorney 's fees awarded pursuant to
this section shall not exceed an hourly rate greater than the rate
charged by the Attorney General at the time the award is made and
shall not exceed an aggregate amount of fifty thousand dollars
($50,000). This subdivision shall not apply if a public entity has
provided for the defense of the action pursuant to Section 995 of the
Government Code.
(d) This section shall become operative on January 1, 2013.
SEC. 712. Section 15655.5 of the Welfare and Institutions Code, as
added by Section 12 of Chapter 140 of the Statutes of 2005, is
amended to read:
15655.5. A county adult protective service
services agency shall provide the organizations listed in
paragraphs (v), (w), and (x) of Section 15610.17 with instructional
materials regarding elder and dependent adult abuse and neglect and
their obligation to report under this chapter. At a minimum, the
instructional materials shall include the following:
(a) An explanation of elder and dependent adult abuse and neglect,
as defined in this chapter.
(b) Information on how to recognize potential elder and dependent
adult abuse and neglect.
(c) Information on how the county adult protective
service services agency investigates reports of
known or suspected abuse and neglect.
(d) Instructions on how to report known or suspected incidents of
abuse and neglect, including the appropriate telephone numbers to
call and what types of information would assist the county adult
protective service services agency with
its investigation of the report.
(e) This section shall become operative on January 1, 2013.
SEC. 713. Section 16500.1 of the Welfare and Institutions Code is
amended to read:
16500.1. (a) It is the intent of the Legislature to use the
strengths of families and communities to serve the needs of children
who are alleged to be abused or neglected, as described in Section
300, to reduce the necessity for removing these children from their
home, to encourage speedy reunification of families when it can be
safely accomplished, to locate permanent homes and families for
children who cannot return to their biological families, to reduce
the number of placements experienced by these children, to ensure
that children leaving the foster care system have support within
their communities, to improve the quality and homelike nature of
out-of-home care, and to foster the educational progress of children
in out-of-home care.
(b) In order to achieve the goals specified in subdivision (a),
the state shall encourage the development of approaches to child
protection that do all of the following:
(1) Allow children to remain in their own schools, in close
proximity to their families.
(2) Increase the number and quality of foster families available
to serve these children.
(3) Use a team approach to foster care that permits the biological
and foster family and the child to be part of that team.
(4) Use team decisionmaking in case planning.
(5) Provide support to foster children and foster families.
(6) Ensure that licensing requirements do not create barriers to
recruitment of qualified, high-quality foster homes.
(7) Provide training for foster parents and professional staff on
working effectively with families and communities.
(8) Encourage foster parents to serve as mentors and role models
for biological parents.
(9) Use community resources, including community-based agencies
and volunteer organizations, to assist in developing placements for
children and to provide support for children and their families.
(10) Ensure an appropriate array of placement resources for
children in need of out-of-home care.
(11) Ensure that no child leaves foster care without a lifelong
connection to a committed adult.
(12) Ensure that children are actively involved in the case plan
and permanency planning process.
(c) In carrying out the requirements of subdivision (b), the
department shall do all of the following:
(1) Consider the existing array of program models provided in
statute and in practice, including, but not limited to, wraparound
services, as defined in Section 18251, children's systems of care, as
provided for in Section 5852, the Oregon Family Unity or Santa Clara
County Family Conference models, which include family conferences at
key points in the casework process, such as when out-of-home
placement or return home are is
considered, and the Annie E. Casey Foundation Family to Family
initiative, which uses team decisionmaking in case planning,
community-based placement practices requiring that children be placed
in foster care in the communities where they resided prior to
placement, and involve foster families as team members in family
reunification efforts.
(2) Ensure that emergency response services, family maintenance
services, family reunification services, and permanent placement
services are coordinated with the implementation of the models
described in paragraph (1).
(3) Ensure consistency between child welfare services program
regulations and the program models described in paragraph (1).
(d) The department, in conjunction with stakeholders, including,
but not limited to, county child welfare services agencies, foster
parent and group home associations, the California Youth Connection,
and other child advocacy groups, shall review the existing child
welfare services program regulations to ensure that these regulations
are consistent with the legislative intent specified in subdivision
(a). This review shall also determine how to incorporate the best
practice guidelines for assessment of children and families receiving
child welfare and foster care services, as required by Section
16501.2.
(e) The department shall report to the Legislature on the results
of the actions taken under this section on or before January 1, 2002.
SEC. 714. Section 16583 of the Welfare and Institutions Code is
amended to read:
16583. The Judicial Council shall develop the forms necessary to
implement this article chapter .
SEC. 715. Section 16800.7 of the Welfare and Institutions Code is
amended to read:
16800.7. Agencies responsible for conducting fiscal or program
audits or inspections of grants or subventions pursuant to any of the
following provisions shall, to the extent practicable and consistent
with federal law, endeavor to cooperate and consolidate efforts so
as to conduct a single fiscal or compliance audit for any program
affected by these provisions, thereby maximizing audit efficiency and
minimizing the inconvenience to the program being audited:
(a) The Child Health Disability Prevention Program (Article 6
(commencing with Section 124025) of Chapter 3 of Part 2 of Division
106 of the Health and Safety Code).
(b) The Maternal and Child Health program as set forth in
subdivision (c) of Section 27 of the Health and Safety Code.
(c) The Tobacco Use Prevention program (Article 1 (commencing with
Section 104350) of Chapter 1 of Part 3 of Division 103 of the Health
and Safety Code).
(d) AIDS programs (former Part 1 (commencing with Section 100) of
Division 1 of the Health and Safety Code).
(e) The County Health Care for Indigents program (Part 4.7
(commencing with Section 16900) 16900))
, including, but not limited to, county health care reporting
requirements pursuant to Chapter 2 (commencing with Section 16910)
and Chapter 2.5 (commencing with Section 16915) of Part 4.7
(commencing with Section 16900) that part .
SEC. 716. Section 17800 of the Welfare and Institutions Code is
amended to read:
17800. A not-for-profit hospital that elects to participate in
the drug discount program established under Section 340B of the
federal Public Health Service Act (42 U.S.C. Sec. 2566)
may enter into an agreement with the State Department of Health
Services for that purpose, which shall be subject to this part.
SEC. 717. Section 18325.5 of the Welfare and Institutions Code is
amended to read:
18325.5. It is the intention of the Legislature that the State of
California through state, local governmental, and private agencies
shall make a maximum contribution of their in-kind resources and
in-kind facilities in order to implement the provisions of
this chapter under Title III of the Older Americans Act of
1965, as amended, provided however that should federal funds become
available under Title VII of the Older Americans Act of 1965 (42
U.S.C. Sec. 3021 et seq.) , as amended, the Legislature
intends that programs provided pursuant to this chapter be
implemented to the maximum extent feasible under Title VII
(former 42 U.S.C. Sec. 3045 et seq.) in order to secure the
maximum federal financial participation. The Older Americans Act of
1965 (42 U.S.C. Sec. 3001 et seq.) , as amended, states
that the federal government will share in the cost of approved
programs and that the local or state share may be "in-kind"
contributions.
SEC. 718. Section 18906.5 of the Welfare and Institutions Code is
amended to read:
18906.5. (a) The state shall pay 70 percent of the nonfederal
costs of administering the Food Stamp Program, subject to
the provisions of Section Sections 18906 and
18906.7. The counties shall pay the remaining share of the nonfederal
costs.
(b) The state shall pay 85 percent of the nonfederal share of the
costs of AFDC fraud investigation subject to Section 15204.5. The
counties shall pay the remaining share of the nonfederal costs.
SEC. 719. Section 1 of Chapter 260 of the Statutes of 2004, as
amended by Chapter 19 of the Statutes of 2005, is amended to read:
Section 1. For purposes of making reductions ,
initiated during the 2004-05 or 2005-06 school years
year pursuant to Section 44955 of the Education
Code , in the number of employees because of a reduction
in services or elimination of a juvenile camp program, a county
superintendent of schools in a county of the first class may retain
those employees until the effective date of the closure or reduction
in services of that juvenile camp program.
SEC. 720. Section 31.5 of the Orange County Water District Act
(Chapter 924 of the Statutes of 1933), as amended by Chapter 41 of
the Statutes of 2002, is amended to read:
Sec. 31.5. (a) Basin equity assessments and production
requirements and limitations on persons and operators within the
district are declared to be in furtherance of district activities in
the protection of water supplies for users within the district
which that are necessary for the public
health, welfare, and safety of the people of this state. The basin
equity assessments and the production requirements and limitations
provided for in this act may be imposed upon, and applied to, all
persons and producers within the district for the benefit of all who
rely directly or indirectly upon the groundwater supplies of the
district.
(b) The basin equity assessments imposed pursuant to this act
against all persons and operators within the district may be uniform
or nonuniform in amount, as determined by the board of directors of
the district, in order to effectuate the goals and purposes of the
district. The proceeds of the basin equity assessments imposed and
collected shall be used to equalize the cost of water to all persons
and operators within the district and to acquire water to replenish
the groundwater supplies of the district.
(c) As used in this act:
(1) "Supplemental sources" means sources of water outside the
watershed of the Santa Ana River, excepting that portion of that
watershed on and along Santiago Creek upstream of the downstream toe
of the slope of the Villa Park Flood Control Dam, such as, but not
limited to, water produced from the Metropolitan Water District of
Southern California.
(2) "Basin production percentage" means the ratio that all water
to be produced from groundwater supplies within the district bears to
all water to be produced by persons and operators within the
district from supplemental sources and from groundwater within the
district during the ensuing water year.
(d) The district shall annually order an engineer employed by the
district to prepare an investigation and report. The investigation
and report shall set forth all of the following information, together
with other information requested by the district, relating to the
preceding water year:
(1) Amount of water produced by persons and operators from
groundwater within the district.
(2) Amount of water produced by persons and operators from
supplemental sources.
(3) Amount of water produced by persons and operators from all
other sources.
(4) Condition of groundwater supplies within the district.
(5) Information as to the probable availability of water from
supplemental sources during the next succeeding fiscal year.
(6) The cost of producing water from groundwater within the
district, including any replenishment assessment of the district.
(7) The cost of water produced within the district from
supplemental sources.
(e) (1) On the second Wednesday in February of each year, the
engineering investigation and report shall be delivered to the
secretary of the district.
(2) The secretary shall publish, pursuant to Section 6061 of the
Government Code, a notice of the receipt of the report and of the
public hearing to be held on the date of a meeting of the board of
directors in March, in a newspaper of general circulation printed and
published within the district, at least 10 days prior to the date at
which the public hearing regarding water supplies within the
district is to be held.
(3) The notice, among any other information that the district may
provide, shall include an invitation to all persons or operators
within the district to
call at the offices of the district to examine the engineering
investigation and report.
(4) The board of directors shall hold on the date of a meeting of
the board in March of each year, a public hearing at which a person
or operator within the district, or any person interested in the
amounts and source from which all persons and operators produce their
total supply of water, as well as the estimated difference in the
cost of water produced from groundwater within the district or
supplemental sources, may appear and be heard, in person or by
representative.
(f) (1) On the date of a meeting of the board of directors in
April of each year, the board of directors shall hold a public
hearing to determine the need and desirability of imposing basin
equity assessments and the amounts thereof, the need for establishing
production requirements and limitations, and the extent of those
requirements and limitations as to each person or operator within the
district for the ensuing water year.
(2) In computing and fixing the amount of any basin equity
assessment for any person or operator within the district, the board
may allow a percentage for delinquencies, not to exceed 10 percent,
as determined by the board.
(3) Notice of the proposed hearing shall be published in the
district pursuant to Section 6061 of the Government Code at least 10
days prior to the date set for the hearing.
(4) The notice shall set forth all of the following:
(A) That a report regarding water supplies within the district has
been prepared.
(B) The date, time, and place of the proposed hearing.
(C) A statement that the board will consider at the hearing the
need and desirability of imposing basin equity assessments and the
amounts of those assessments, as well as establishing production
requirements and limitations, on persons and operators within the
district for the ensuing water year and surcharges in connection with
those requirements and limitations.
(D) An invitation to all persons and operators to appear at the
public hearing and be heard in regard to any of the foregoing
matters.
(g) (1) At the hearing, the board shall hear, take, and receive
all competent evidence presented regarding the need for basin equity
assessments, production requirements and limitations in general, and
specifically, the extent of those requirements or limitations as to
each person or operator within the district, the amount of the basin
equity assessment which shall be imposed upon each person and
operator for all purposes other than irrigation at uniform or
nonuniform rates and may be imposed upon each person and operator for
irrigation purposes at uniform or nonuniform rates for the ensuing
water year, and the amount of surcharges for production in excess of
the basin production limitations.
(2) After the hearing, the board may, by a resolution adopted by a
vote of not less fewer than eight
members of the board, find and determine for the ensuing water year
all of the following:
(A) The estimated total amount of water to be produced by all
persons and operators within the district from the groundwater within
the district and the estimated amount to be produced by persons and
operators from supplemental sources.
(B) The basin production percentage.
(C) That a basin equity assessment and production requirement and
limitation from groundwater within the district are necessary for the
protection of the water supply of the district.
(D) The surcharge, in an amount to be determined in the discretion
of the board, for production in excess of the production
limitations.
(E) The amount of the basin equity assessment to be imposed upon
each person and operator in a dollar amount per acre-foot of water
produced from the groundwater supply for all purposes other than
irrigation, which need not be uniform as to each person or operator
within the district, and that the amount is reasonable.
(F) The amount of the basin equity assessment to be imposed upon
each person and operator in a dollar amount per acre-foot of water
produced from the groundwater supply for irrigation purposes, which
need not be uniform as to each person or operator within the
district, and that the amount is reasonable.
(G) Production requirements or limitations and the surcharge for
production in excess of the basin production limitations on persons
and operators within the district that will apply during the ensuing
water year. The requirements and limitations shall be on the amount
of groundwater produced by those persons and operators expressed in a
percentage of overall water produced or obtained by those persons or
operators from groundwater within the district and from supplemental
sources.
(H) That during the ensuing water year, upon the district giving
published notice pursuant to Section 6061 of the Government Code in a
newspaper of general circulation printed and published within the
district at least 10 days prior to such a hearing, a subsequent
public hearing may be held to modify the basin production percentage,
any basin equity assessment, any production requirement or
limitation, or the surcharge for production in excess of the
production limitation established by the district. A modification, if
any, shall be effective on the date established by the board and the
district. The district shall give notice of the modification 10 days
prior to the effective date of the modification pursuant to
subdivision (e).
(h) (1) The board may exclude all persons and operators who
produced 25 acre-feet or less of water from groundwater within the
district during the ensuing water year from the imposition of the
basin equity assessment and the production requirements and
limitations.
(2) All findings and determinations made by the board pursuant to
this section are final, conclusive, and binding upon all persons and
parties.
(i) (1) The district shall thereafter, and in any event prior to
July 1 in each year, give notice to each person or operator within
the district. The notice shall include all of the following
information:
(A) The amount of the basin equity assessment imposed upon that
person or operator per acre-foot of water produced for purposes other
than irrigation and the amount of the basin equity assessment
imposed upon that person or operator per acre-foot of water produced
for irrigation purposes.
(B) The basin production percentage.
(C) The production requirement or limitation upon the person or
operator.
(D) The amount of surcharge imposed for production in excess of
the basin production limitations.
(2) The notice required by this subdivision and the notice of any
subsequent modifications may be sent by postcard or by other
first-class mail with postage prepaid by the district.
(j) (1) Each person or operator within the district not excluded
from the imposition of a basin equity assessment and the production
requirements and limitations, shall file with the district, on or
before the 30th day of September 30 of
each year, a basin equity assessment report in the form prescribed by
the district setting forth the total amounts of water produced from
groundwater within the district and from supplemental sources during
the preceding water year by the person or operator. The statement
shall be verified by a written declaration under penalty of perjury.
(2) If the person or operator has been required by the district to
produce, or has in fact produced, more water from groundwater within
the district than the equivalent of the basin production percentage
determined by the district, that person or operator shall pay to the
district, on or before September 30, an amount determined by the
number of acre-feet of water which the person or operator has
produced from groundwater within the district in excess of the
acre-foot equivalent of the basin production percentage multiplied by
the basin equity assessment rate applicable to that person or
operator, plus the amount of surcharge due for production in excess
of the production limitations.
(3) (A) If a person or operator, pursuant to the requirement of
the district, has produced from groundwater within the district less
than of the equivalent of the basin production
percentage, the district shall pay the person or operator, on or
before the 30th day of November 30 ,
from the basin equity assessment fund, an amount determined by the
number of acre-feet by which the production of the person or operator
from groundwater as required by the district is less than the
acre-foot equivalent of the basin production percentage multiplied by
the basin equity assessment rate applicable to that person or
operator.
(B) If the production of the person or operator from groundwater
is more than the production required by the district and less than
the equivalent of the basin equity production percentage, then the
district shall pay the person or operator an amount determined by the
number of acre-feet by which the actual production of the person or
operator from groundwater is less than the acre-foot equivalent of
the basin production percentage multiplied by the basin equity
assessment applicable to that person or operator.
(k) If any person or operator fails to pay, when due, the
applicable basin equity assessment or surcharge due for production in
excess of the production limitations, the district shall charge
interest on the delinquent amount at the rate of 1 percent each month
or fraction thereof for which the amount remains delinquent. Should
any person or operator within the district fail to file a basin
equity assessment report on or before the 30th day of
November 30 of any year, the district shall, in
addition to charging interest, assess a penalty charge against that
person or operator in the amount of 10 percent of the amount found by
the district to be due.
(l) (1) The district may require other reports from persons and
operators as necessary and desirable in the application of the basin
equity assessment procedures.
(2) Upon good cause shown, an amendment to any report required
under this section may be filed, or a correction of any report may be
made, within six months after the date the report was filed with the
district.
SEC. 721. Section 12 of the Lake County Flood Control and Water
Conservation District Act (Chapter 1544 of the Statutes of 1951), as
amended by Chapter 89 of the Statutes of 1999, is amended to read:
Sec. 12. (a) The board may institute proceedings for the
formation of single zones and also institute projects for single
zones and joint projects for two or more zones that may involve the
financing, constructing, maintaining, operating, extending, repairing
, or otherwise improving any work or improvement of
common benefit to that zone or participating zones. The board may
also institute separate projects for operation and maintenance of
works or improvements for any zones , whether the works or
improvements have been constructed by the board or by the state or
the federal government or both. Any zone shall include, as far as
practicable, all lands that will be benefited by any project proposed
for that zone.
(b) Proceeding for the formation of any zone and for the
establishment of any project for that zone may be conducted jointly.
For the purpose of establishing any zone or participating zones or of
acquiring authority to proceed with that project, the board shall
adopt a resolution specifying its intention to establish that zone or
zones or to undertake that project, or both thereof, together with
the engineering and other estimates of the cost of same to be borne
by the particular zone and, in the case of participating zones, the
proportionate cost to be borne by each of the participating zones and
fixing a time and place for public hearing of that resolution; and
that resolution shall refer to a map or maps showing the boundaries
of each zone and the general location and general construction of
that project. The resolution shall also describe the boundaries of
any zone proposed to be established; otherwise adequate reference to
any established zone involving the project shall be sufficient.
(c) Notice of the hearing shall be given by publication pursuant
to Section 6066 of the Government Code in a newspaper of general
circulation, circulated in that zone or each of those participating
zones, if there be such is a newspaper
of general circulation , and or
if there be is no such
newspaper of general circulation, then by
posting notice for two consecutive weeks prior to that hearing in
five public places designated by the board, in that zone or in each
of those participating zones. Publication shall be completed at least
seven days before the date of the hearing. The notice shall contain
a copy of the resolution. The notice shall designate a public place
in the zone or in each of the participating zones where a copy or
copies of the map or maps of each proposed single zone and any
project for a single zone or the joint project for participating
zones may be seen by any interested person, and the map shall be
posted in each of the public places so designated in the notice at
least two weeks prior to the hearing.
(d) At the time and place fixed for the hearing, or at any time to
which the hearing may be continued, the board shall consider all
written and oral objections to the proposed zone or project.
(e) If it is shown that any land is improperly included in the
boundaries proposed for the zone , the board, in its order
for formation of the zone, shall exclude the land therefrom. If the
board shall conclude concludes that
lands that will be benefited by the zone are improperly omitted from
the proposed zone , and the owners thereof have not
appeared at the hearing , the board shall continue the
hearing and direct that notice be given to nonappearing landowners to
appear before the board and show cause why their lands should not be
included in the proposed zone. The notice shall be given either by
publication or posting in the same manner and for the same period as
the original notice of hearing or by personal service on each
landowner. Any personal service shall be made at least three days
prior to the date fixed for further hearing. Proof of the notice
given shall be filed with the clerk of the board on or before the day
to which the hearing is continued.
(f) The board may continue the hearing from time to time, by order
entered upon its minutes, to the end that a full hearing may be had.
(g) If an order for formation of the zone is made at the
conclusion of the hearing , the order shall describe the
exterior boundaries of the zone as determined by the board, shall be
signed by the chairman of the board and attested by the clerk thereof
, and shall be recorded by the county recorder
in his or her official records.
(h) Upon the conclusion of the hearing, the board may abandon the
proposed zone or project or proceed with the same
proposed zone or project , unless prior to the conclusion
of the hearing , a written protest against the proposed
zone or project signed by a majority in number of the holders of
title to real property, or holders of assessable rights
therein in real property , or
holders of evidence of title thereto to
real property , representing one-half or more of the assessed
valuation of the real property within the zone or within any of the
participating zones, be is filed with
the board , in which event . In this case,
further proceedings relating to the zone or project shall be
suspended for not less than six months following the date of the
conclusion of the hearing, or the proceeding may be abandoned in the
discretion of the board.
(i) For the purposes of this section, the last equalized
assessment roll of the County of Lake next preceding the filing of
the protest shall be prima facie evidence as to the ownership of real
property, the names and numbers of the persons who are the holders
of title or , evidence of title, or
assessable rights therein in title to real
property , and as to the assessed valuation of real property
within the zone or within any of the participating zones for which
the project was initiated.
(j) Executors, administrators, special administrators, and
guardians may sign the protest provided for in this act on behalf of
the estate represented by them. If the property is assessed in the
name of those representatives, that fact shall establish the right of
those representatives to sign the protest ; if
. If assessed in the name of the decedent, minor ,
or incompetent person, certified copies of the letters or other
evidence as may be satisfactory to the board
must shall be produced.
(k) If real property appears to be owned in common or jointly or
by a partnership, or if letters of representatives of decedents,
minors , or guardians are joint, only one of the owners
or , representatives , or
partners may sign the protest for all joint owners or
, representatives , or partners
; provided, that if the party claiming
the right to protest for all produces the written consent of his or
her coowners or , representatives
, or partners so to do so , duly
acknowledged by the consenting coowners or ,
representatives , or partners in the manner that
deeds of real property are required to be acknowledged to entitle
those deeds to be recorded in the recorder's office of the county.
Any joint owner or , partner ,
or tenant in common may sign and thus be counted independently
for this proportionate share of the assessed valuation of that real
property as shall be determined by division of the evaluation by the
number of jointly interested owners thereof
of the real property .
(l) If real property is assessed in the name of a trustee or
trustees, the trustee or trustees shall be deemed to be the person
entitled to sign the protest, and if assessed in the name of more
than one trustee , the right to sign the protest shall be
determined in like manner as above provided
in subdivision (k) with respect to coowners.
(m) The protest of any public or quasi-public corporation, private
corporation or unincorporated association , may
be signed by any person authorized by the board of directors
or , trustees , or other managing
body thereof of the corporation or
association , which authorization shall be in writing
; and a . A proxy executed by an officer or
officers thereof of the association or
corporation , attested by its seal , and duly
acknowledged , shall constitute sufficient
evidence of that authority, and shall be filed with the board.
(n) The owner of any real property or interest therein
in real property , appearing upon the assessment
roll, which has been assessed in the wrong name or to unknown
owners, or which has passed from the owner appearing as the
on the last equalized assessment roll, since the
same last equalized assessment was made, shall
be entitled to sign the protest represented thereby, either by the
production of a proxy from the former owner, or by furnishing
evidence of his or her ownership by a conveyance duly acknowledged
showing the title to be vested in the person claiming the right to
sign the protest, accompanied by a certificate of a competent
searcher of titles, certifying that a search of the official records
of the county, since the date of the conveyance, discloses no
conveyance or transfer out from the grantee or transferee named in
the conveyance.
(o) If the real property has been contracted to be sold, the
vendee shall be entitled to sign the protest, unless that real
property is assessed in the name of the vendor, in which event the
vendor shall be entitled to so do.
(p) The board may inquire and take evidence for the purpose of
identifying any person claiming the right to sign the protest as
being the person shown on the assessment roll or otherwise as
entitled thereto. And, unless Unless
satisfactory evidence is furnished, the right to sign the protest may
be denied.
(q) In its resolution of intention on the institution of any
project for operation and maintenance of works or improvements for
any zone and in the order of adoption of the project, the board shall
fix a total amount that it will raise annually thereafter by
assessments under Section 13.1 of this act to pay the
expenses of that operation and maintenance.
(r) If the board determines that it is necessary to increase the
annual assessments to meet operational and maintenance requirements
of the works or improvements of any zone, it may increase the
assessments in the manner in which the assessments were originally
established and in accordance with other applicable provisions of
law.
SEC. 722. Section 87 of the San Diego Unified Port District Act
(Chapter 67 of the Statutes of 1962, First Extraordinary Session), as
amended by Section 18 of Chapter 399 of the Statutes of 1996, is
amended to read:
Sec. 87. (a) The tide and submerged lands conveyed to the
district by any city included in the district shall be held by the
district and its successors in trust and may be used for purposes in
which there is a general statewide purpose, as follows:
(1) For the establishment, improvement, and conduct of a harbor,
and for the construction, reconstruction, repair, maintenance, and
operation of wharves, docks, piers, slips, quays, and all other
works, buildings, facilities, utilities, structures, and appliances
incidental, necessary, or convenient, for the promotion and
accommodation of commerce and navigation.
(2) For all commercial and industrial uses and purposes, and the
construction, reconstruction, repair, and maintenance of commercial
and industrial buildings, plants, and facilities.
(3) For the establishment, improvement, and conduct of airport and
heliport or aviation facilities, including, but not limited to,
approach, takeoff, and clear zones in connection with airport
runways, and for the construction, reconstruction, repair,
maintenance, and operation of terminal buildings, runways, roadways,
aprons, taxiways, parking areas, and all other works, buildings,
facilities, utilities, structures, and appliances incidental,
necessary, or convenient for the promotion and accommodation of air
commerce and air navigation.
(4) For the construction, reconstruction, repair, and maintenance
of highways, streets, roadways, bridges, belt line railroads, parking
facilities, power, telephone, telegraph or cable lines or landings,
water and gas pipelines, and all other transportation and utility
facilities or betterments incidental, necessary, or convenient for
the promotion and accommodation of any of the uses set forth in this
section.
(5) For the construction, reconstruction, repair, maintenance, and
operation of public buildings, public assembly and meeting places,
convention centers, parks, playgrounds, bathhouses and bathing
facilities, recreation and fishing piers, public recreation
facilities, including, but not limited to, public golf courses, and
for all works, buildings, facilities, utilities, structures, and
appliances incidental, necessary, or convenient for the promotion and
accommodation of any such uses.
(6) For the establishment, improvement, and conduct of small boat
harbors, marinas, aquatic playgrounds, and similar recreational
facilities, and for the construction, reconstruction, repair,
maintenance, and operation of all works, buildings, facilities,
utilities, structures, and appliances incidental, necessary, or
convenient for the promotion and accommodation of any of those uses,
including, but not limited to, snack bars, cafes, restaurants,
motels, launching ramps, and hoists, storage sheds, boat repair
facilities with cranes and marine ways, administration buildings,
public restrooms, bait and tackle shops, chandleries, boat sales
establishments, service stations and fuel docks, yacht club
buildings, parking areas, roadways, pedestrian ways, and landscaped
areas.
(7) For the establishment and maintenance of those lands for open
space, ecological preservation, and habitat restoration.
(b) The district or its successors shall not, at any time, grant,
convey, give, or alienate those lands, or any part thereof, to any
individual, firm, or corporation for any purposes whatever. However,
the district, or its successors, may grant franchises thereon for
limited periods, not exceeding 66 years, for wharves and other public
uses and purposes, and may lease those lands, or any part thereof,
for limited periods, not exceeding 66 years, for purposes consistent
with the trusts upon which those lands are held by the State of
California, and with the requirements of commerce and navigation, and
collect and retain rents and other revenues from those leases,
franchises, and privileges. Those lease or leases, franchises, and
privileges may be for any and all purposes which shall
that do not interfere with commerce and
navigation.
(c) Those lands shall be improved without expense to the state.
However, nothing in this section shall preclude expenditures for the
development of those lands for any public purpose not inconsistent
with commerce, navigation, and fishery, by the state, or any board,
agency, or commission thereof, when authorized or approved by the
district, or preclude expenditures by the district of any funds
received for that purpose from the state or any board, agency, or
commission thereof.
(d) In the management, conduct, operation, and control of those
lands or any improvements, betterments, or structures thereon, the
district or its successors shall make no discrimination in rates,
tolls, or charges for any use or service in connection therewith.
(e) The State of California shall have the right to use without
charge any transportation, landing or storage improvements,
betterments, or structures constructed upon those lands for any
vessel or other watercraft, aircraft, or railroad owned or operated
by the State of California.
(f) There is hereby reserved to the people of the State of
California the right to fish in the waters on those lands with the
right of convenient access to that water over those lands for that
purpose.
(g) There is hereby excepted and reserved in the State of
California all deposits of minerals, including oil and gas, in those
lands, and to the State of California, or persons authorized by the
State of California, the right to prospect for, mine, and remove
deposits from said those lands.
(h)
Those lands shall be held subject to the express reservation and
condition that the state may at any time in the future use those
lands or any portion for highway purposes without compensation to the
district, its successors or assigns, or any person, firm, or public
or private corporation claiming under it, except that in the event
improvements, betterments, or structures have been placed upon the
property taken by the state for those purposes, compensation shall be
made to the district, its successors, or assigns, or any person,
firm, or public or private corporation entitled thereto for the value
of his or her or its interest in the improvements, betterments, or
structures taken or the damages to that interest.
(i) The State lands Lands
Commission, at the cost of the district, shall survey and monument
those lands and record a description and plat thereof in the office
of the County Recorder of San Diego County.
(j) As to any tide and submerged lands conveyed to the district by
a city that are subject to a condition contained in a grant of those
lands to the city by the state that those lands shall be
substantially improved within a designated period or else they shall
revert to the state, that condition shall remain in effect as to
those lands and shall be applicable to the district.
As to any tide and submerged lands conveyed to the district by a
city that are not subject to such a this
condition contained in a grant by the state and that have not
heretofore been substantially improved, those lands, within 10 years
from July 12, 1962, shall be substantially improved by the district
without expense to the state. If the State Lands Commission
determines that the district has failed to improve the lands as
herein required, all right, title, and interest of the district in
and to those lands shall cease and the lands shall revert and rest in
the state.
SEC. 723. Section 26.9 of the Santa Clara Valley Water District
Act (Chapter 1405 of the Statutes of 1951), as amended by Section
31.5 of Chapter 1195 of the Statutes of 1993, is amended to read:
Sec. 26.9. (a) After the establishment of a zone in which a
groundwater charge may be levied, each owner or operator of a
water-producing facility within the zone, until the time that the
water-producing facility has been permanently abandoned, shall file
with the district, on or before the 30th day following the end of
collection periods established by the board, a water production
statement setting forth the total production in acre-feet of water
for the preceding collection period, a general description or number
locating each water-producing facility, the method or basis of the
computation of the water production, and the amount of the
groundwater charge based on the computation. The collection periods
may be established at intervals of not more than one year or less
than one month. If no water has been produced from the
water-producing facility during a preceding collection period, this
statement shall be filed as provided for in this section, setting
forth that no water has been produced during the applicable period.
The statement shall be verified by a written declaration under
penalty of perjury.
(b) The groundwater charge is payable to the district on or before
the last date upon which the water production statements shall be
filed, and is computed by multiplying the production in acre-feet of
water for each classification as disclosed in the statement by the
groundwater charge for each classification of water. The owner or
operator of a water-producing facility which
that is being permanently abandoned shall give written notice
of the abandonment to the district. If any owner or operator of a
water-producing facility fails to pay the groundwater charge when
due, the district shall charge interest at the rate of 1 percent each
month on the delinquent amount of the groundwater charge.
(c) If any owner or operator of a water-producing facility fails
to register each water-producing facility, or fails to file the water
production statements as required by this act, the district shall,
in addition to charging interest, assess a penalty charge against the
owner or operator in an amount of 10 percent of the amount found by
said the district to be due. The board
may adopt regulations to provide that in excusable or justifiable
circumstances the penalty may be reduced or waived.
(d) If any owner or operator of a water-producing facility fails
to file a water production statement as required by this act, the
district shall, in addition to charging interest and assessing a
penalty charge, assess an administrative charge to recover the costs
of collection. The board may adopt regulations to provide that in
excusable or justifiable circumstances the administrative charge may
be reduced or waived.
(e) If a water-measuring device is permanently attached to a
water-producing facility, the record of production as disclosed by
the water-measuring device shall be presumed to be accurate and shall
be used as the basis for computing the water production of the
water-producing facility in completing the water production
statement, unless it can be shown that the water-measuring device is
not measuring accurately.
(f) If a water-measuring device is not permanently attached to a
water-producing facility, the board may establish a method or methods
to be used in computing the amount of water produced from the
water-producing facilities. The methods may be based upon any or all
of the following criteria: the minimum charge sufficient to cover
administrative costs of collection, size of water-producing facility
discharge opening, area served by the water-producing facility,
number of persons served by the water-producing facility, use of land
served by the water-producing facility, crops grown on land served
by the water-producing facility, or any other criteria or
criteria which that may be used to
determine with reasonable accuracy the amount of water produced from
that water-producing facility. The district may levy an annual charge
upon a water-producing facility for which no production has been
recorded but which that has not been
permanently abandoned if that charge does not exceed the annual cost
to the district of maintaining and administering the registration of
that facility.
SEC. 724. Section 8 of the San Mateo County Flood Control District
Act (Chapter 2108 of the Statutes of 1959), as amended by Chapter
1208 of the Statutes of 1992, is amended to read:
Sec. 8. (a) The board of supervisors of the district may, in any
year, do any of the following:
(1) (A) Levy taxes or assessments in each or
any of the zones of the district to pay the cost and expenses of
administering, engineering, constructing, maintaining, operating,
extending, repairing or otherwise improving any or all works or
improvements established , or to be established ,
within or on behalf of the zone or zones, according to the
benefits derived or to be derived by the respective zones, by either
of the following methods:
(A)
(i) By a levy or assessment upon all property within a
zone or participating zone, including land, improvements
thereon on the land , and personal property
; .
(B)
(ii) By a levy or assessment upon all real property
within a zone or participating zone, including both land and
improvements.
(B) It is declared that for the purposes of
any tax or assessment levied under this subdivision, the property so
taxed or assessed within a given zone is equally benefited.
(2) Levy taxes or assessments by either method authorized by
subdivision 1 of this section paragraph (1)
in each or any , of the zones, according to
the special benefits derived or to be derived by the specific
properties therein in a zone or zones ,
to pay the cost and expenses of carrying out any of the objects or
purposes of this act of special benefit to the zone or zones,
including the constructing, administering, engineering, maintaining,
operating, extending, repairing, or otherwise improving any or all
works of improvement established-or
established, or to be established , within or on
behalf of the zone or zones.
(3) Levy taxes or assessments within a zone within which one or
more subzones are established pursuant to Section 10.1 of this act in
the manner provided by, and subject to the limitations of, that
section.
(b) The taxes or assessments shall be levied and collected
together with, and not separately from, taxes for county purposes,
and the revenues derived from the taxes shall be
paid into the county treasury to the credit of the district, and the
board of supervisors shall have the power to control and order the
expenditure for these purposes. However, no revenues, or portions
thereof, derived in any of the several zones from the taxes or
assessments levied under subdivision 1
paragraph (1) of subdivision (a) shall be expended for
administering, engineering, constructing, maintaining, operating,
extending, repairing, or otherwise improving any works or
improvements located in any other zone except as provided in Section
11. Moreover, the aggregate taxes or assessments levied in any zone
or subzone established under this act for any fiscal year shall not
exceed forty cents ($0.40) on each one hundred dollars ($100) of
assessed valuation of the taxable property in the zone or subzone,
exclusive of any tax levied to meet the bonded indebtedness of any
zone or subzone and the interest thereon on
the bonded indebtedness . The maximum rate of forty cents
($0.40) set forth herein in this subdivision
supersedes any maximum tax or assessment rate previously fixed
by the board in a resolution establishing any zone or subzone
pursuant to Section 10, and may be levied within any zone or subzone
irrespective of any maximum tax or assessment rate so fixed.
(c) (1) The board may also, by an ordinance approved by two-thirds
of the board, impose charges in any zone or subzone for the specific
purpose of funding flood control, storm drainage, water conservation
or supply, or water pollution abatement projects or programs either
adopted or modified pursuant to Section 10.3 or 10.4.
(2) Revenues derived under this subdivision shall be used for
acquisition, construction, repair, maintenance, replacement,
operation, and administration of flood control, storm drainage, water
conservation or supply, or sewer systems, or water pollution
abatement projects for benefit of any zone or subzone.
(3) Charges may be collected together with the charges imposed for
any other utility service furnished by a department or agency over
which the board does not exercise control, or with a publicly or
privately owned public utility, with the written consent and
agreement of that department or ,
agency , or public utility owner, which agreement shall
establish the terms and conditions upon which the collections shall
be made. The agreement, in the discretion of the department
or , agency , or public utility owner
making the collections, also may provide that those rates shall be
itemized, billed upon the same bill, and collected as one item,
together with, and not separately from, the other utility service
charge.
(4) If the board has adopted an ordinance pursuant to this
subdivision, it may , by that ordinance or by separate
ordinance or resolution, approved by a two-thirds vote of the board,
elect to have the charges 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 each year and filed with the
clerk, which shall contain a description of each parcel of real
property receiving the services and facilities and the amount of the
charge for each parcel for the year, computed in conformity with the
charges prescribed by the ordinance or resolution.
(5) Any ordinance or resolution adopted pursuant to this
subdivision, authorizing the collection of charges on the tax roll,
shall remain in effect for the time specified in the ordinance or
resolution , or, if no time is specified in the
ordinance or resolution, until repealed or until a change is made in
the rates.
(6) The real property may be described by reference to maps
prepared in accordance with Section 327 of the Revenue and Taxation
Code, and on file with the Office of the Assessor of San Mateo County
or by reference to plats or maps on file in the office of the clerk.
(7) On or before August 10 of each year following the final
determination upon each charge, the clerk shall file with the auditor
a copy of the report prepared pursuant to this subdivision with a
statement endorsed on the report over his or her signature that the
report has been finally adopted by the board. The auditor shall enter
the amounts of the charges against the respective lots or parcels of
land, as they appear on the current assessment roll.
(8) The board may impose a basic penalty of not more than 10
percent for nonpayment of the charges within the time and in the
manner prescribed by it, and in addition may provide for a penalty,
not exceeding 11/2 percent per month, for nonpayment of the charges
and basic penalty. The board may provide for the collection of these
penalties.
SEC. 725. Section 26.7 of the Santa Clara Valley Water District
Act (Chapter 1405 of the Statutes of 1951), as amended by Chapter 664
of the Statutes of 1992, is amended to read:
Sec. 26.7. (a) (1) Prior to the end of the water year in which
the hearing is held, and based upon the findings and determinations
from the hearing, the board shall determine whether or not a
groundwater charge should be levied in any zone or zones.
(2) If the board determines that a groundwater charge should be
levied, it shall levy, assess, and affix the charge or charges
against all persons operating groundwater-producing facilities within
the zone or zones during the ensuing water year.
(3) (A) The charge shall be computed at a fixed and uniform rate
or rates per acre-foot for agriculture water, and at a fixed and
uniform rate or rates per acre-foot for all water other than
agricultural water.
(B) Different rates may be established in different zones, except
that in each zone the rate or rates for agricultural water shall be
fixed and uniform.
(C) The rate or rates, as applied to operators who produce
groundwater above a specified annual amount, may, except in the case
of any person extracting groundwater in compliance with a
government-ordered program of cleanup of hazardous waste
contamination, be subject to prescribed, fixed, and uniform increases
in proportion to increases by that operator in groundwater
production over the production of that operator for a prior base
period to be specified by the board, upon a finding by the board that
conditions of drought and water shortage require the increases. The
increases shall be related directly to the reduction in the affected
zone groundwater levels in the same base period.
(D) The rates shall be established each year in accordance with a
budget for that year submitted by the district to the Board of
Supervisors of Santa Clara County pursuant to this act, or amendments
or adjustments to that budget, and shall be fixed and uniform rates
for agricultural water and for all water other than agricultural
water, respectively, except that each such rate
for agricultural water shall not exceed one-fourth of the rate for
all water other than agricultural water.
(b) (1) The board may also impose or adjust any groundwater
charge, and the rate of any charge, on or before January 1 of each
water year or at any time during the 1992-93 water year
whenever if the board determines that the
imposition or adjustment of the charge is
necessary.
(2) The board shall prepare a supplemental report to the annual
report prepared pursuant to Section 26.5, explaining the reasons for
the imposition or adjustment of the charge. The board shall file the
supplemental report with the clerk of the board at least 45 days
before the date the new or adjusted charge is proposed to take
effect.
(3) (A) The clerk shall publish in a newspaper of general
circulation published within the district, pursuant to Section 6061
of the Government Code, a notice of the receipt of the supplemental
report and a hearing to be held on the proposed imposition or
adjustment of the groundwater charge at least 31 days before the date
on which the new or adjusted charge is proposed to take effect and
at least 10 days before the date of the hearing.
(B) The notice shall invite any operator of a water-producing
facility within the district and other interested parties to examine
the supplemental report prepared pursuant to paragraph (2) at the
district office.
(4) (A) A public hearing shall be held , at least 21
days before the date on which the new or adjusted groundwater charge
is proposed to take effect , in the chambers of the board.
(B) Any operator of a water-producing facility within the district
may, in person or by means of a representative, present evidence at
the hearing concerning the imposition or adjustment of the
groundwater charge.
(c) Any groundwater charge levied pursuant to this section shall
be in addition to any general tax or assessment levied within the
district or any zone or zones thereof.
(d) Clerical errors occurring or appearing in the name of any
person or in the description of the water-producing facility
where if the production of water
therefrom is otherwise property
properly charged, or in the making or extension of any charge
upon the records which that do not
affect the substantial rights of the assessee or assessees, shall not
invalidate the groundwater charge.
SEC. 726. Section 45 of the Monterey County Water Resources Agency
Act (Chapter 1159 of the Statutes of 1990), as amended by Chapter
1130 of the Statutes of 1991, is amended to read:
Sec. 45. The board shall appoint a task force to recommend a
water allocation formula for urban and agricultural areas in the
county that are not within the jurisdiction of the Monterey Peninsula
Water Management District and the Pajaro Valley Water Management
Agency. An urban allocation formula is necessary to preserve
agricultural access to an adequate water supply and to preserve
agriculture as a mainstay of the Salinas Valley economy. The task
force shall made make the
recommendation to the agency on or before January 1, 1992.
SEC. 727. Section 510 of the Pajaro Valley Water Management Agency
Act (Chapter 257 of the Statutes of 1984), as amended by Chapter 387
of the Statutes of 1988, is amended to read:
Sec. 510. The agency may do any of the following:
(a) Enter into contracts and employ and retain personal services.
The board may cause construction or other work to be performed or
carried out by contracts or by the agency under its own supervision.
(b) Contract for and perform contracts with public entities for
the performance of administration of the agency and perform or
contract for the performance of tests, studies, and investigations as
necessary and proper to carry out the objects and purposes of the
agency.
(c) All contracts for the construction of any unit of work
estimated to cost over ten thousand dollars ($10,000) shall be let to
the lowest responsible bidder in accordance with Chapter 2
(commencing with Section 20100) 22000)
of Part 3 of Division 2 of the Public Contract Code. If the cost of
the project will not exceed ten thousand dollars ($10,000) the agency
may have the work done by force account. The agency may purchase in
the open market, without advertising for bids thereof
, materials and , supplies
, and professional services for use in any work either
under contract or by force account.
(d) Create, establish, and maintain such
offices and positions as that the board
may determine determines are necessary
and convenient for the transaction of the business of the agency.
SEC. 728. Section 408 of Chapter 688 of the Statutes of 1984 is
amended to read:
SEC. 408. (a) All contracts for the
construction of any unit of work, except as provided, estimated to
cost in excess of ten thousand dollars ($10,000) shall be let to the
lowest responsible bidder in the manner as provided
accordance with this section .
(b) The board shall advertise by three
insertions in a daily newspaper of general circulation or two
insertions in a weekly newspaper of general circulation published in
the district, inviting sealed proposals for the construction of the
work before any contract shall be made therefor ,
and may let by contract separately any part of the work. The board
shall require the successful bidder to file with the board good and
sufficient bonds to be approved by the board conditioned upon the
faithful performance of the contract and upon the payment of the
claims for labor and material in connection therewith
with the contract . The board may reject any and
all bids.
(c) If all proposals are rejected or no
proposals are received pursuant to advertisement therefor
, or where the estimated cost of the
work does not exceed the sum of ten thousand dollars ($10,000) ,
or where the work consists of channel
protection, or maintenance work, or emergency work
necessary in order to protect life and property
from impending flood damage, the board, by unanimous vote of all
members present, may, without advertising for bids therefor
, have the work done by force account. The district may
purchase in the open market, without advertising for bids thereof,
materials and supplies for use in any work either under contract or
by force account.
The provisions of this section have no application
(d) This section does not apply
to a contract entered into with the United States or to a contract
authorized by a vote of the eligible voters of the district or a
zone.
(e) The district shall comply with Chapter 2
(commencing with Section 21000) 22000)
of Part 3 of Division 2 of the Public Contract Code, which shall
control over the provisions of this act to the
extent of any inconsistency.
SEC. 729. Section 408 of Chapter 689 of the Statutes of 1984 is
amended to read:
SEC. 408. (a) All contracts for the
construction of any unit of work, except as provided, estimated to
cost in excess of ten thousand dollars ($10,000) shall be let to the
lowest responsible bidder in the manner as provided
accordance with this section .
(b) The board shall advertise by three
insertions in a daily newspaper of general circulation or two
insertions in a weekly newspaper of general circulation published in
the district, inviting sealed proposals for the construction of the
work before any contract shall be made therefor ,
and may let by contract separately any part of the work. The board
shall require the successful bidder to file with the board good and
sufficient bonds to be approved by the board conditioned upon the
faithful performance of the contract and upon the payment of the
claims for labor and material in connection therewith
with the contract . The board may reject any and
all bids.
(c) If all proposals are rejected or no
proposals are received pursuant to advertisement therefor
, or where the estimated cost of the
work does not exceed the sum of ten thousand dollars ($10,000) ,
or where the work consists of channel
protection, or maintenance work, or emergency work
necessary in order to protect life and property
from impending flood damage, the board, by unanimous vote of all
members present, may, without advertising for bids therefor
, have the work done by force account. The district may
purchase in the open market, without advertising for bids
thereof , materials and supplies for use in any work either
under contract or by force account.
The provisions of this section have no application
(d) This section does not apply
to a contract entered into with the United States or to a contract
authorized by a vote of the eligible voters of the district or a
zone.
(e) The district shall comply with Chapter 2
(commencing with Section 21000) 22000)
of Part 3 of Division 2 of the Public Contract Code, which shall
control over the provisions of this act to the
extent of any inconsistency.
SEC. 730. Section 602 of Chapter 1023 of the Statutes of 1982 is
amended to read:
Sec. 602. (a) The agency shall develop and adopt a lower aquifer
management plan for future extractions from the lower aquifer system.
As a part of this plan , the agency shall determine the
hydrologic characteristics of the lower aquifer system in the
following geographical areas:
(1) Las Posas Basin.
(2) Pleasant Valley Basin.
(3) Oxnard Plain Basin (including forebay)
, including forebay .
(4) Offshore area.
(b) For each such area described in
subdivision (a), the lower aquifer system management plan shall
estimate the following:
(1) Existing groundwater storage.
(2) The average annual change in storage for the period 1980-2010.
(3) Groundwater storage for the year 2010.
(4) Long-term recoverable storage, including an estimate of
nonrecoverable storage.
(5) The expected adverse effects of projected extractions.
(c) The lower aquifer system management plan shall include a
policy for the issuance of new well permits for lower aquifer system
wells which that takes into
consideration the location of proposed wells and area of use,
projected extractions from the wells, and the effect of the
extractions on existing users and on storage in the lower aquifer
system. In developing the lower aquifer system management plan ,
the agency shall consider a ban on new irrigated acreage or
new municipal water system wells. As a further part of the lower
aquifer system management plan , the agency shall develop
a contingency plan to deal with the possible occurrence of on-land
seawater intrusion within the lower aquifer system. This contingency
plan shall consider the possibility that new demands could result
from upper aquifer system wells that may become inoperative.
(d) Notwithstanding any other provision of this act, the agency
shall not regulate existing extraction from the lower aquifer system
until the agency has completed and adopted its lower aquifer system
management plan, unless
it has determined at a noticed public hearing that there is evidence
of inland seawater intrusion in the lower aquifer system or that
there is less than 50 years of water supply remaining in any one of
the groundwater basins listed in subdivision (a) which
that comprise the lower aquifer system. If the
agency makes the requisite findings and seeks to regulate extractions
prior to adoption of the lower aquifer system management plan, it
may regulate extractions from one or more of the groundwater basins
comprising the lower acquifer aquifer
system without having to regulate extractions from the others by
adopting basin management plan. The impacts associated with
regulating extractions within one or more basins upon all other
basins in the system must be evaluated by the agency and incorporated
in the basin management plan before it can be adopted and
implemented.
SEC. 731. Section 87 of the San Diego Unified Port District Act
(Chapter 67 of the Statutes of 1962, First Extraordinary Session), as
amended by Chapter 399 of the Statutes of 1996, is amended to read:
Sec. 87. (a) The tide and submerged lands conveyed to the
district by any city included in the district shall be held by the
district and its successors in trust and may be used for purposes in
which there is a general statewide purpose, as follows:
(1) For the establishment, improvement, and conduct of a harbor,
and for the construction, reconstruction, repair, maintenance, and
operation of wharves, docks, piers, slips, quays, and all other
works, buildings, facilities, utilities, structures, and appliances
incidental, necessary, or convenient , for the
promotion and accommodation of commerce and navigation.
(2) For all commercial and industrial uses and purposes, and the
construction, reconstruction, repair, and maintenance of commercial
and industrial buildings, plants, and facilities.
(3) For the establishment, improvement, and conduct of airport and
heliport or aviation facilities, including, but not limited to,
approach, takeoff, and clear zones in connection with airport
runways, and for the construction, reconstruction, repair,
maintenance, and operation of terminal buildings, runways, roadways,
aprons, taxiways, parking areas, and all other works, buildings,
facilities, utilities, structures, and appliances incidental,
necessary, or convenient for the promotion and accommodation of air
commerce and air navigation.
(4) For the construction, reconstruction, repair, and maintenance
of highways, streets, roadways, bridges, belt line railroads, parking
facilities, power, telephone, telegraph or cable lines or landings,
water and gas pipelines, and all other transportation and utility
facilities or betterments incidental, necessary, or convenient for
the promotion and accommodation of any of the uses set forth in this
section.
(5) For the construction, reconstruction, repair, maintenance, and
operation of public buildings, public assembly and meeting places,
convention centers, parks, playgrounds, bathhouses and bathing
facilities, recreation and fishing piers, public recreation
facilities, including, but not limited to, public golf courses, and
for all works, buildings, facilities, utilities, structures, and
appliances incidental, necessary, or convenient for the promotion and
accommodation of any such of those
uses.
(6) For the establishment, improvement, and conduct of small boat
harbors, marinas, aquatic playgrounds, and similar recreational
facilities, and for the construction, reconstruction, repair,
maintenance, and operation of all works, buildings, facilities,
utilities, structures, and appliances incidental, necessary, or
convenient for the promotion and accommodation of any of those uses,
including, but not limited to, snack bars, cafes, restaurants,
motels, launching ramps, and hoists, storage sheds, boat repair
facilities with cranes and marine ways, administration buildings,
public restrooms, bait and tackle shops, chandleries, boat sales
establishments, service stations and fuel docks, yacht club
buildings, parking areas, roadways, pedestrian ways, and landscaped
areas.
(7) For the establishment and maintenance of those lands for open
space, ecological preservation, and habitat restoration.
(b) The district or its successors shall not, at any time, grant,
convey, give, or alienate those lands, or any part thereof, to any
individual, firm, or corporation for any purposes whatever. However,
the district, or its successors, may grant franchises thereon for
limited periods, not exceeding 66 years, for wharves and other public
uses and purposes, and may lease those lands, or any part thereof,
for limited periods, not exceeding 66 years, for purposes consistent
with the trusts upon which those lands are held by the State of
California, and with the requirements of commerce and navigation, and
collect and retain rents and other revenues from those leases,
franchises, and privileges. Those lease or leases, franchises, and
privileges may be for any and all purposes which shall
that do not interfere with commerce and
navigation.
(c) Those lands shall be improved without expense to the state.
However, nothing in this section shall preclude expenditures for the
development of those lands for any public purpose not inconsistent
with commerce, navigation, and fishery, by the state, or any board,
agency, or commission thereof, when authorized or approved by the
district, or preclude expenditures by the district of any funds
received for that purpose from the state or any board, agency, or
commission thereof.
(d) In the management, conduct, operation, and control of those
lands or any improvements, betterments, or structures thereon, the
district or its successors shall make no discrimination in rates,
tolls, or charges for any use or service in connection therewith.
(e) The State of California shall have the right to use without
charge any transportation, landing or storage improvements,
betterments, or structures constructed upon those lands for any
vessel or other watercraft, aircraft, or railroad owned or operated
by the State of California.
(f) There is hereby reserved to the people of the State of
California the right to fish in the waters on those lands with the
right of convenient access to that water over those lands for that
purpose.
(g) There is hereby excepted and reserved in the State of
California all deposits of minerals, including oil and gas, in those
lands, and to the State of California, or persons authorized by the
State of California, the right to prospect for, mine, and remove
deposits from said those lands.
(h) Those lands shall be held subject to the express reservation
and condition that the state may at any time in the future use those
lands or any portion for highway purposes without compensation to the
district, its successors or assigns, or any person, firm, or public
or private corporation claiming under it, except that in the event
improvements, betterments, or structures have been placed upon the
property taken by the state for those purposes, compensation shall be
made to the district, its successors, or assigns, or any person,
firm, or public or private corporation entitled thereto for the value
of his or her or its interest in the improvements, betterments, or
structures taken or the damages to that interest.
(i) The State lands Lands
Commission, at the cost of the district, shall survey and monument
those lands and record a description and plat thereof in the office
of the County Recorder of San Diego County.
(j) (1) As to any tide and submerged lands
conveyed to the district by a city that are subject to a condition
contained in a grant of those lands to the city by the state that
those lands shall be substantially improved within a designated
period or else they shall revert to the state, that condition shall
remain in effect as to those lands and shall be applicable to the
district.
(2) As to any tide and submerged lands
conveyed to the district by a city that are not subject to such a
condition contained in a grant by the state and that have not
heretofore been substantially improved, those lands, within 10 years
from July 12, 1962, shall be substantially improved by the district
without expense to the state. If the State Lands Commission
determines that the district has failed to improve the lands as
herein required, all right, title, and interest of the district in
and to those lands shall cease and the lands shall revert and rest in
the state.
SEC. 732. Section 5.5 of the Santa Barbara County Flood Control
and Water Conservation District Act (Chapter 1057 of the Statutes of
1955), as added by Chapter 234 of the Statutes of 1978, is amended to
read:
Sec. 5.5. (a) In addition to the powers described elsewhere in
this act, the district shall have the power by ordinance or
resolution, subject to referendum pursuant to Article 2 (commencing
with Section 5200) 9340) of Chapter 4
of Division 4 9 of the Elections Code,
to prescribe, revise, and collect fees and charges in any zone,
established pursuant to Section 3 or Section 11, as a condition of
development of land. Land to be developed within a zone shall be
subject to the fees and charges of the zone in which it is located.
Development of land for the purposes of this section shall include,
but not be limited to, subdivision development as governed by the
Subdivision Map Act (Division 2 (commencing with Section 66410) of
Title 7 of the Government Code); construction of new buildings,
structures, and improvements for residential, commercial, or
industrial purposes; and any development of land requiring either
zone variance or special use permit. The amount of fees and charges
levied for each zone shall be determined separately and shall be
based upon the need created by development of land for flood control
facilities within the zone. The amount of fees and charges levied for
any zone shall not exceed five hundred dollars ($500) for each acre
or portion thereof of an area of land
to be developed. Fees and charges prescribed as a condition of
development of land pursuant to this section shall be in addition to
any other conditions imposed on such that
development by any other agency having power to prescribe
such other conditions.
(b) Except as hereinafter otherwise
provided in this act , revenues derived from fees and
charges prescribed for any zone may be used only for the acquisition,
engineering, design, construction, reconstruction, maintenance, or
operation of flood control or storm drainage facilities, or the
installation or maintenance of landscaping as authorized by Section
5.4, within such that zone, or used to
pay the interest on or reduce the principal of any bonded
indebtedness of such that zone.
(c) Whenever the development of land within any zone is made
subject to fees and charges by the board of directors pursuant to
this section, said the board of
directors may allow a credit against such
those fees for the acquisition, engineering, design,
construction, reconstruction, maintenance, or operation costs of any
flood control or storm drain facility within such
that zone which that has
been constructed or paid for in connection with the development of
land within such that zone. The board
of directors may also reduce fees or charges prescribed for any part
of the land to be developed within such that
zone if they find it finds that
because of special circumstances the payment thereof
would be inequitable or would cause undue hardship and the
reduction of such the fees would be in
the public interest.
(d) The consent and approval of the legislative body of a city
shall be necessary before any fees or charges may be levied on the
development of land located within the corporate boundaries of a city
which that are higher than any fees or
charges levied on the development of land outside and contiguous to
the corporate boundaries of such that
city.
SEC. 733. Section 13 of the Humboldt Bay Harbor, Recreation, and
Conservation District Act (Chapter 1283 of the Statutes of 1970) is
amended to read:
Sec. 13. Except as otherwise provided in this act, the formation
election shall be conducted in accordance with the general election
laws of this state so far as applicable. An election called pursuant
to the provisions of this act may be consolidated
with any other election pursuant to the provisions of
Chapter 4 (commencing with Section 23300) of Part
2 3 (commencing with Section 10400) of Division
12 10 of the Elections Code.
SEC. 734. Section 16 of the Humboldt Bay Harbor, Recreation, and
Conservation District Act (Chapter 1283 of the Statutes of 1970) is
amended to read:
Sec. 16. Except as otherwise provided in this act, the
provisions of the Uniform District Election Law (Part
3 4 (commencing with Section
23500) 10500) of Division 12
10 of the Elections Code), shall be applicable to general
district elections of elected members of the board.
SEC. 735. Any section of any act enacted by the Legislature during
the 2006 calendar year that takes effect on or before January 1,
2007, 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 2006 calendar year and takes
effect on or before January 1, 2007, amends, amends and renumbers,
adds, repeals and adds, or repeals any section contained in that
article, chapter, part, title, or division.