BILL ANALYSIS AB 370 Page 1 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 Page 2 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 AB 370 Page 3 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 AB 370 Page 4 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