BILL NUMBER: AB 370 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 29, 2009
AMENDED IN ASSEMBLY MARCH 23, 2009
INTRODUCED BY Assembly Member Eng
( Coauthors: Assembly Members
Blumenfield, Huffman, and Nestande
)
FEBRUARY 23, 2009
An act to amend Sections 7028 and 7028.16 of the Business and
Professions Code, relating to contractors.
LEGISLATIVE COUNSEL'S DIGEST
AB 370, as amended, Eng. Unlicensed contractors.
Existing law, the Contractors' State License Law, provides for the
licensure and regulation of contractors by the Contractors' State
License Board. Existing law makes it a misdemeanor for a person to
engage in the business or act in the capacity of a contractor without
having a license and makes a first offense punishable by
imprisonment in the county jail for no more than 6 months, or by a
fine not exceeding $1,000, or both. Existing law requires a court to
impose upon a person who has been previously convicted of that
offense a fine of 20% of the price of the contract, as specified, or
$4,500, whichever is greater, and imprisonment in the county jail for
at least 90 days, except as specified. Existing law specifies that a
3rd or subsequent conviction is punishable by a fine of not less
than $4,500 nor more than the greater of $10,000 or 20% of the
contract price or by imprisonment in the county jail, as specified,
or both, and applies those penalty provisions to a person who is
named on a revoked license and is held responsible for the act or
omission resulting in the revocation. Existing law requires a court
to order a defendant convicted of a crime under those provisions, or
under provisions related to the offering or performance of repairs
caused by a natural disaster, to pay restitution to the victim, as
specified.
This bill would make a first conviction punishable by a fine not
exceeding $5,000 or by imprisonment in a county jail for no more than
6 months, as specified, or both. The bill would require that the
fine for a 2nd conviction be the greater of 20% of the price
of the contract price , 20% of the aggregate
payments made to, or at the direction of, the unlicensed contractor,
or $5,000. In addition, the bill would require that a 3rd or
subsequent conviction be punishable by both a fine and imprisonment
in a county jail, as specified, and would require that the fine be no
less than $5,000 and no more than the greater of $10,000, 20% of the
price of the contract price , or 20%
of the aggregate payments made to, or at the direction of, the
unlicensed contractor. By requiring 3rd or subsequent convictions to
be punishable by imprisonment in a county jail, the bill would impose
a state-mandated local program. Under the provisions described
above, the bill would also provide that a person who used the
services of an unlicensed contractor is a victim of crime and
eligible for restitution for economic losses , regardless of
whether that person had knowledge that the contractor was unlicensed.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7028 of the Business and Professions Code is
amended to read:
7028. (a) It is a misdemeanor for a person to engage in the
business or act in the capacity of a contractor within this state
without having a license therefor, unless the person is particularly
exempted from the provisions of this chapter.
(b) A first conviction for the offense described in this section
is punishable by a fine not exceeding five thousand dollars ($5,000)
or by imprisonment in a county jail not exceeding six months, or by
both that fine and imprisonment.
(c) If a person has been previously convicted of the offense
described in this section, unless the provisions of subdivision (d)
are applicable, the court shall impose a fine of 20 percent of the
price of the contract under which the unlicensed person
performed or offered to perform contracting work
contract price , or 20 percent of the aggregate payments made
to, or at the direction of, the unlicensed contractor, or five
thousand dollars ($5,000), whichever is greater, and, unless the
sentence prescribed in subdivision (d) is imposed, the person shall
be confined in a county jail for not less than 90 days, except in an
unusual case where the interests of justice would be served by
imposition of a lesser sentence or a fine. If the court imposes only
a fine or a jail sentence of less than 90 days for second or
subsequent convictions under this section, the court shall state the
reasons for its sentencing choice on the record.
(d) A third or subsequent conviction for the offense described in
this section is punishable by a fine of not less than five thousand
dollars ($5,000) nor more than the greater amount of ten thousand
dollars ($10,000) or 20 percent of the contract price under
which the unlicensed person performed or offered to perform
contracting work , or 20 percent of the aggregate payments
made to, or at the direction of, the unlicensed contractor, and by
imprisonment in a county jail for not more than one year or less than
90 days. The penalty provided by this subdivision is cumulative to
the penalties available under all other laws of this state.
(e) A person who violates this section is subject to the penalties
prescribed in subdivision (d) if the person was named on a license
that was previously revoked and, either in fact or under law, was
held responsible for any act or omission resulting in the revocation.
(f) If the person performing or offering to perform the
contracting work engaging in the business of or acting
in the capacity of an unlicensed contractor has agreed to
furnish materials and labor on an hourly basis, "the price
of the contract" contract price" for the
purposes of this section means the aggregate sum of the cost of
materials and labor furnished, or to be furnished,
and the cost of completing the work to be performed.
(g) Notwithstanding any other provision of law, an indictment for
any violation of this section by the unlicensed contractor shall be
found or an information or complaint filed within four years from the
date of the contract proposal, contract, completion, or abandonment
of the work, whichever occurs last.
(h) For any conviction under this section, a person who utilized
the services of the unlicensed contractor is a victim of crime
and is eligible, pursuant to subdivision (f) of Section 1202.4 of the
Penal Code, for restitution for economic losses, regardless of
whether that person had knowledge that the contractor was
unlicensed.
SEC. 2. Section 7028.16 of the Business and Professions Code is
amended to read:
7028.16. A person who engages in the business or acts in the
capacity of a contractor, without having a license therefor, in
connection with the offer or performance of repairs to a residential
or nonresidential structure for damage caused by a natural disaster
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,
shall be punished by a fine up to ten thousand dollars ($10,000), or
by imprisonment in the state prison for 16 months, or for two or
three years, or by both that fine and imprisonment, or by a fine up
to one thousand dollars ($1,000), or by imprisonment in the county
jail not exceeding one year, or by both that fine and imprisonment.
In addition, a person who utilized the services of the unlicensed
contractor is a victim of crime regardless of whether that person had
knowledge that the contractor was unlicensed.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.