BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 370
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          Date of Hearing:   March 31, 2009

                   ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
                                 Mary Hayashi, Chair
                      AB 370 (Eng) - As Amended:  March 23, 2009
           
          SUBJECT  :   Unlicensed contractors. 

           SUMMARY  :  Increases the maximum criminal penalties for  
          unlicensed contractors, imposes a mandatory jail sentence for a  
          third or subsequent conviction for unlicensed contracting, and  
          requires the court to order an unlicensed contractor to pay  
          restitution to its victims.  Specifically,  this bill :  

          1)Makes a first conviction a misdemeanor punishable by a fine  
            not exceeding $5,000 or by imprisonment in a county jail for  
            no more than six months, or both. 

          2)Requires that the fine for a second conviction be the greatest  
            of 20% of the contract price, 20% of the aggregate payments  
            made to, or at the direction of, the unlicensed contractor, or  
            $5,000. 

          3)Requires that a third or subsequent conviction be punishable  
            by both a fine and imprisonment in a county jail for between  
            90 days and one year.  The fine must be no less than $5,000  
            and no more than the greatest of $10,000, 20% of the price of  
            the contract, or 20% of the aggregate payments made to, or at  
            the direction of, the unlicensed contractor. 

          4)Clarifies that an unlicensed person who offers to perform  
            contracting work is subject to the specified penalties. 

          5)Provides that a person who used the services of an unlicensed  
            contractor is a victim of crime, regardless of whether that  
            person had knowledge that the contractor was unlicensed.

          6)Requires a court to order that a convicted unlicensed  
            contractor make restitution to all persons who utilized the  
            services of the unlicensed contractor and that this  
            restitution include all payments made to, or at the direction  
            of, the unlicensed contractor and not be offset or reduced by  
            any act or performance.

           EXISTING LAW  :








                                                                  AB 370
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          1)Creates the Contractors State License Board (CSLB) within the  
            Department of Consumer Affairs for the purposes of licensing  
            and regulating contractors in California.

          2)Allows CSLB to bring disciplinary actions against a contractor  
            who willfully or deliberately violates building laws of the  
            state.

          3)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 six months, or by a fine  
            not exceeding $1,000, or both.

          4)Requires that a second conviction be punishable by both a fine  
            and imprisonment in the county jail for not less than 90 days,  
            except as specified.  The fine must be the greater of 20% of  
            the price of the contract or $4,500.

          5)Requires that a third or subsequent conviction be punishable  
            by a fine or imprisonment in the county jail for between 90  
            days and one year, or both.  The fine must be no less than  
            $4,500 and no more than the greater of $10,000 or 20% of the  
            price of the contract. 

           FISCAL EFFECT  :   Unknown
           
           COMMENTS  :   

           Purpose of this bill  .  According to the author's office,  
          "Contractor fraud, most of which involves unlicensed  
          contractors, consistently ranks in the top ten lists of consumer  
          complaints both nationally and statewide.  According to the U.S.  
          Office of Consumer Affairs, unscrupulous contractors defraud  
          consumers of more than $100 billion annually.  In addition to  
          the financial loss they cause, unlicensed contractors generally  
          do not obtain proper insurance, leaving their workers without  
          any protection and the homeowner potentially liable."

          "Despite this immense harm, violators of this law are only  
          punishable by up to only six months in jail and a maximum fine  
          of $1,000 - regardless of how much money the victim paid that  
          unlicensed contractor.  Although second-time offenders must pay  
          an increased fine, the potential jail time is similarly  








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          restricted to six months.  Only a third-time violator is subject  
          to up to one year jail sentence."

          Current law states that a person who uses an unlicensed  
          contractor may bring a civil action to recover all compensation  
          paid to the unlicensed contractor.  However, no statute  
          specifically addresses the issue of criminal restitution for  
          victims of unlicensed contractors.  Unlicensed contractors are  
          the beneficiaries, retaining the monies paid them by crime  
          victims which the civil statutes require to be disgorged.   
           
          Background  .  According to the CSLB, unlicensed contracting is a  
          considerable part of California's estimated annual $60-$140  
          billion underground economy.  Numerous approaches have been used  
          to address this problem, but it continues to impact legitimate  
          licensees and consumers alike with injurious economic results.   
          The victims of these violations include consumers, often the  
          elderly, who pay thousands of dollars to an unlicensed person  
          who never finishes the job or does incompetent or negligent  
          work.  Research conducted by the Department of Industrial  
          Relations, Economic and Employment Enforcement Coalition shows  
          that unlicensed contractors drive down wages, undercut  
          legitimate businesses, and avoid licensing requirements, and it  
          is often hard to find them and bring them into compliance with  
          state and local laws.
           
          Support  .  The Los Angeles City Attorney Rocky Delgadillo states,  
          "My office is pleased to sponsor your bill, AB 370, which  
          clarifies that existing law requires restitution to victims of  
          unscrupulous unlicensed contractors, including victims affected  
          by natural disasters, and increases the maximum criminal fine  
          for unlicensed contractors. . . . AB 370 is necessary because  
          the current criminal statutes do not clearly require unlicensed  
          contractors to disgorge the amounts paid to them, despite the  
          fact that civil law specifically mandates such disgorgement.  As  
          a result, victims of unscrupulous unlicensed contractors have  
          often been denied restitution.  Since many of these victims do  
          not have the means to pursue their loss through the civil  
          courts, the unlicensed contractors are the beneficiaries of this  
          serious flaw in the current criminal statute."

           Previous Legislation  .  AB 2412 (Eng) of 2008 was a substantially  
          similar bill that the Governor vetoed.  The Governor vetoed a  
          substantial number of bills that year with the same message  
          that, due to the delay in passing the 2008-2009 State Budget, he  








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          would only sign bills that were "the highest priority for  
          California."  AB 2412 was vetoed for this reason. 

          SB 488 (Soto), Chapter 205, Statutes of 2005, enhances penalties  
          for a third and subsequent convictions for contracting without a  
          license and provides that it is a misdemeanor for the qualifying  
          person of a contractor's license to violate workers'  
          compensation insurance requirements.

          SB 443 (Figueroa), Chapter 706, Statutes of 2003, requires a  
          court of law to sentence repeat offenders of unlicensed  
          contracting activity to county jail for not less than 90 days.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Los Angeles City Attorney Rocky Delgadillo (sponsor)
          California Chapter of American Fence Contractors Association
          California District Attorneys Association
          California Fence Contractors Association
          California Landscape Contractors Association
          California Spa and Pool Industry Education Council 
          Contractors State License Board (CSLB)
          Engineering Contractors Association
          Flasher/Barricade Association

           Opposition 
           
          None on file. 
           
          Analysis Prepared by  :    Whitney Clark / B. & P. / (916)  
          319-3301