BILL ANALYSIS ----------------------------------------------------------------------- |Hearing Date:April 27, 2009 |Bill No: SB | | |820 | ----------------------------------------------------------------------- SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT Senator Gloria Negrete McLeod, Chair Bill No: SB 820Author:Business, Professions and Economic Development As Amended: April 21, 2009 Fiscal: Yes SUBJECT: Consumer Affairs: professions and vocations. SUMMARY: Makes several non-controversial, minor, non-substantive or technical changes to various miscellaneous provisions pertaining to regulatory boards of the Department of Consumer Affairs (DCA) and professions regulated under the Business and Professions Code (BPC). Existing law: 1)Provides for the licensing and regulation of various professions and businesses by some 26 boards, eight bureaus, and one commission within the DCA under various BPC licensing acts. 2)Provides for the Office of Examination Resources (OER) within the DCA. The OER designs licensing examinations and conducts occupational analyses for various regulatory programs within DCA (BPC 139, 1632.5, 1634.2, 2493, 4200.3, 4200.4, 4938, 7303.2). 3)Provides authority to issue an infraction citation for practicing in certain industries regulated by specified DCA programs without the required license, but that authority does not apply to the Professional Fiduciaries Bureau (BPC 146). 4)Requires the California Board of Accountancy (CBA) to hold public meetings and specifies that a seven day notice must be given before a meeting. (BPC 5016) and authorizes the CBA to establish an administrative committee, whose members serve for one year, and describes the committee's duties (BPC 5021, 5022, 5023). SB 820 Page 2 5)Requires landscape architecture candidates to have a combination of six years of education and experience prior to qualifying for the examinations. Requires reciprocity landscape architecture candidates to only have passed the examinations prior to licensure (does not contain the same initial experience requirements of a California candidate). 6)Establishes the Contractors State Licensing Board (CSLB) to license and regulate contractors and makes various provisions and requirements relating to the regulation of contractors, including, provisions relating to unlicensed practice, owner-builders, timely payment of subcontractors, and other requirements and specifications (BPC 7028.7, 7044, 7044.01, 7108.5, 7159, 7159.5, 7159.14). 7)Contains the following provisions pertaining to the Licensed Repossessors: a) Licenses repossession agencies by the Bureau of Security and Investigative Services (BSIS), and defines various terms relating to that practice, including "collateral" as any vehicle, boat, recreational vehicle, motor home, appliance or other property subject to a security agreement (BPC 7500.1). b) Permits a qualified manager to be in charge of one licensed location at a time (BPC 7505.5). c) Establishes procedures for the removal, inventory and storage of personal effects from reposed collateral, and allows a debtor to waive the preparation of an inventory, as specified. Requires special interest license plates in the personal effects of the debtor to be removed from the collateral and destroyed, as specified, if the plates are not claimed by the debtor within 60 days (BPC 7507.9) d) Requires in any written report submitted to the client, that a repossessor shall exercise diligence to make the report true and correct (BPC 7505.11). e) Specifies that a vehicle repossession is complete when the repossessor gains entry to the vehicle, or when the vehicle is connected to the repossessors tow vehicle (BPC 7507.12). f) Requires that when the legal owner takes possession of a vehicle, as specified, the person taking possession of the SB 820 Page 3 vehicle must notified specified law enforcement agencies within g) one hour of taking possession of the vehicle (Vehicle Code 28). h) Permits a tow truck to mount the rear license plate (VC 5201) and stop lamps (VC 24603) in, as specified, in a separate location on the vehicle than is generally allowed for other vehicles. 8)Provides for the regulation of embalmers and apprentice embalmers by the Cemetery and Funeral Bureau (CFB) under DCA, and requires an applicant to complete a course in embalming school and furnish proof of completing a high school course or evidence of licensed practice in another state, as specified (BPC 7606, 7616, 7641, 7643, 7665, 7666, 7671, 7725.5). Also requires an applicant to pass an examination which includes specified subjects, and requires the CFB to examine applicants at least once annually (BPC 7643, 7646, 7647, 7662, 7729). 9)Contains the following provisions pertaining to the Bureau of Automotive Repair (BAR): a) Requires the Director of Consumer Affairs (Director) to validate the registration and to send proof of validation to the automotive repair dealer. The Director may refuse to validate, or may temporarily or permanently invalidate the registration of an automotive repair dealer for specified acts or omissions by the automotive repair dealer or associated person (BPC 9884.2, 9884.7, 9884.12). b) Authorizes the BAR to take disciplinary action for a conviction relating to the "qualifications, functions, and duties" of a licensee (BPC 9889.3, HSC 44072.1, 44072.2). c) Under the vehicle inspection and maintenance (smog check) program, prescribes certain cost limits for repairs under the program, and requires a smog check station to post a sign advising customers of those cost limits (HSC 44017.3). 10) Establishes the Department of Real Estate (DRE) within the DCA to license and regulate real estate brokers and real estate sales persons. This bill: SB 820 Page 4 1)Makes changes to the following general provisions in the BPC pertaining to the Office of Examination Resources (OER): a) Changes the name of the Office of Examination Resources (OER) to the Office of Professional Examination Resources (OPER) (BPC 139, 1632.5, 1634.2, 2493, 4200.3, 4200.4, 4938, 7303.2). 2)Makes the following changes pertaining to the Professional Fiduciaries Bureau (PFB): a) Includes professional fiduciary as a profession for which an infraction may be issued for practicing without a license. (BPC 146). 3)Makes the following changes pertaining to the California Board of Accountancy (CBA): a) Deletes references to notices regarding Board of Accountancy (CBA) meetings and instead refers to the Bagley-Keene Open Meeting Act (BPC 5016). b) In addition to the CBA's administrative committee, also refers to a qualifications committee and changes committee terms from one to two years (BPC 5021). c) Clarifies that the provisions apply to the qualifications committee and clarifies its duties (BPC 5022, 5023). 4)Makes the following changes pertaining to Landscape Architects: a) Corrects a drafting error in prior legislation to clarify that a reciprocity candidate seeking licensure in California must meet the same experience requirements as any other candidate for licensure. (BPC 5651). 5)Makes the following changes pertaining to the Contractors State Licensing Board (CSLB): a) Recasts provisions of existing law for clarity and readability (BPC 7028.7, 7044, 7044.01, 7108.5). b) Corrects a reference to another section of law and makes technical corrections and clarifications (BPC 7159, 7159.5, 7159.14). SB 820 Page 5 6)Makes the following changes pertaining to Licensed Repossessors: a) Makes technical clarification; includes "trailer" in the definition of "collateral;" clarifies by adding "specific" the definition that each item of collateral is to be considered separately (BPC 7500.1) b) Permits a qualified manager to be in charge of two, rather than one license location (BPC 7505.5). c) Authorizes reposessors to retain a license plate to be returned to the debtor upon request, rather than destroy the license plate; clarifies that the repossessor must consent to the release of personal effects without an inventory; makes technical changes (BPC 7507.9) d) Clarifies that a repossessor shall not appraise the value of any collateral (BPC 7505.11). e) Provides that once the repossession is complete, a only the legal owner or other person with legal authority may direct the repossessor to release a vehicle (BPC 7507.12) f) Requires that if more than one vehicle is repossessed, each vehicle shall be considered and reported separately (Vehicle Code 28). g) Permits a repossessor's tow vehicle to mount the license plate (VC 5201) and stop lamps (VC 24603) in the same manner as other tow vehicles. 7)Makes the following changes pertaining to the Cemetery and Funeral Bureau (CFB): a) Updates terminology to refer to "mortuary science programs" instead of "embalming schools or colleges" and makes clarifying and conforming changes (BPC 7606, 7616, 7641, 7643, 7665, 7666, 7671, 7725.5). b) Requires the CFB to accept a national examination for embalmer licensing and to administer an examination only on California law applicable to the practice of embalming and makes clarifying and conforming changes (BPC 7643, 7646, 7647, 7662, 7729). c) Provides that an embalmer or apprentice embalmer applicant must furnish official transcripts to the CFB and deletes the SB 820 Page 6 requirement to have completed high school for applicants who have graduated from a mortuary science program (BPC 7643, 7662). 8)Makes the following changes pertaining to the Bureau of Automotive Repair (BAR): a) Updates terminology relating to BAR applicants and registrants to refer to "issue," "deny," "suspend," or "revoke" registrations rather than "validate," "refuse to validate," invalidate temporarily," or "invalidate permanently" (BPC 9884.2, 9884.7, 9884.12). b) Adds specific authority for BAR to suspend, revoke or otherwise discipline an automotive repair dealer (ARD) registration based on a criminal conviction (BPC 9884.7). c) Clarifies that BAR may take disciplinary action for a conviction relating to the "qualifications, functions, or duties" rather than to "qualifications, functions and duties." Thus requiring the conviction to relate to one characteristic (qualifications, functions, or duties) instead of all three (BPC 9889.3, HSC 44072.1, 44072.2). d) Revises the requirement for a smog check station to post a sign advising customers of cost limits for repairs under the smog check program to instead require the sign to inform customers about their options when a vehicle fails a smog check inspection and makes technical and clarifying changes (HSC 44017.3). 9)Makes the following changes pertaining to the Department of Real Estate (DRE): a) Makes technical and clarifying changes to the real estate law (BPC 10146). FISCAL EFFECT: Unknown. This bill is keyed "fiscal" by Legislative Counsel. COMMENTS: 1.Purpose. This bill is a Committee bill authored by the Business, Professions and Economic Development Committee and is intended to consolidate a number of non-controversial provisions related to various regulatory programs and professions governed by the Business and Professions Code. Consolidating the provisions in one bill is SB 820 Page 7 designed to relieve the various licensing boards, bureaus and professions from the necessity and burden of having separate measures for a number of non-controversial revisions. Many of the provisions of this bill are minor, technical and updating changes, while other provisions are substantive changes intended to improve the ability of various licensing programs and other entities to efficiently and effectively administer their respective laws. However, as a Committee bill, if controversy or opposition should arise regarding any provision that cannot be resolved, then that provision will be removed from the bill. This will eliminate the chance of placing any of the other provisions in jeopardy. 2.Background. The following is background and reasons for the more significant and substantive provisions in this measure: General Provisions - Office of Examination Resources (OER). According to the DCA, OER receives numerous calls that need to be redirected because OER is often mistaken for DCA's Office of Human Resource's Selection Services unit. This proposal would change the name of the Office of Examination Resources (OER) to the Office of Professional Examination Resources (OPER). According to the OER they receive numerous calls that need to be redirected because their office is often mistaken for the Office of Human Resource's Selection Services unit. This confusion usually leads to the frustration of the caller. The OER believes this name change would help alleviate this confusion and help the OER deliver better customer service. Professional Fiduciaries Bureau (PFB). According to DCA, every other regulatory program within DCA is either included in the infraction authority under Section 146, or has statute specific to that program making it a misdemeanor to practice without a license. However, the PFB, created by SB 1550 (Figueroa, Chapter 491, Statutes of 2006), does not have a specific statute making it a misdemeanor, nor is it included under Section 146 listing it as an infraction. This bill would > California Board of Accountancy (CBA). According to the CBA the Bagley-Keene Act (created in 1967) supersedes the outdated meeting notice information in the Accountancy Act (specifically 5016, which was added in 1945). CBA states that various provisions only referring to the board's committees need to be clarified and updated, establishing two-year terms instead of just one for SB 820 Page 8 committee members, and naming the board's qualifying committee and clarifying its duties. Landscape Architects. According to the Architect's Board, prior to January 2005, reciprocity candidates for landscape architect licensure were mandated to meet California's experience requirement. In 2004, various references relating to landscape architects were updated by SB 1914 (B& P Committee, Chapter 865, Statutes of 2004), and as an oversight, also deleted the reference of reciprocity candidates meeting California's experience requirement. The drafting error in the prior legislation should be corrected to clarify that a reciprocity candidate seeking licensure in California must meet the same experience requirements as any other candidate for licensure. Contractors State Licensing Board (CSLB). According to the CSLB, several provisions of law are unclear and difficult to read and should be reorganized for readability and clarity. The CSLB also has identified several incorrect references in law. Licensed Repossessors. According to the California Association of Licensed Repossessors (CALR), trailers should be considered as collateral, and that each item of collateral should be considered separately. CALR believes that the requirements should be updated to allow a qualified manager to be in charge of two, rather than one licensed location. Personalized license plates are the property of the debtor and do not belong on the repossessed vehicle, and once destroyed, as required by current law, the debtor would have to apply to the Department of Motor Vehicles (DMV) and pay to have the plates remanufactured. Allowing the reposessor to retain a license plate, rather than destroy it should save money for both the debtor and DMV. Current law allows a debtor to waive the preparation of an inventory of personal effects, and release them directly to the debtor. CALR states that at times in the field it is unwise or dangerous for the repossessor to interrupt the repossession process to turn over the personal effects to the debtor, and at times it may not be clear that the person requesting the article is indeed the debtor. In order to operate safely and to be sure that personal effects are released to the proper party, it is important to give the repossessor some discretion whether the situation warrants the release of personal effects without an inventory. Repossessors are not trained or qualified to express an opinion on the value of a vehicle. On occasion, according to CALR, a legal SB 820 Page 9 owner may ask the repossessor to give an estimate of the value of a vehicle and if the estimate is inaccurate, it may lead to a dispute or even litigation. To avoid those situations, it is appropriate to clarify that a repossessor shall not appraise the value of any collateral. Once a repossession is complete, only the legal owner may direct the release of the vehicle, this clarifies that a person demanding a vehicle's release must have legal authority to do so. Under current law, when a vehicle is repossessed, the repossessor must notify law enforcement within one hour, thus allowing the fact of the repossession to be entered into the statewide CLETS (California Law Enforcement Telecommunications System) network. On occasion, when more than one vehicle is repossessed at the same time, the repossessor will only give notice of one vehicle. This bill clarifies that each repossessed vehicle must be considered and reported separately. This bill conforms the provisions relating to license plate and stop lamp mounting to those for other tow vehicles. Cemetery and Funeral Bureau (CFB). According to the DCA, there are two community colleges in California that offer a two-year mortuary science program where upon completion and graduation, students receive an associates degree. In order to graduate, students must take a national examination, which consists of a written examination on the "sciences" section (embalming) and the "arts" section (funeral director). In addition, students must then take and pass California's embalming examination in order to become a licensed embalmer. Because students are already taking the national examination, it is duplicative for them to have to test again (on the actual practice of embalming) in order to obtain a license. An examination on only the laws and regulations pertaining to embalming in California would ensure entry level competencies, meet the health and safety concerns of consumers and alleviate a barrier to licensure. This bill updates the laws relating to embalmers to require applicants to successfully pass the sciences portion of the national examination and updates terminology to refer to "mortuary science programs instead of "embalming schools or colleges." The bill makes updating, clarifying and conforming changes. Bureau of Automotive Repair (BAR). The law requires the Director to validate, refuse to validate, or may temporarily or permanently invalidate the registration of an automotive repair dealer, however these are outdated terms, and regulations identify these actions as denials, suspensions, and revocations. For purposes of clarification only, changes "and" to "or" "functions" and "duties." SB 820 Page 10 This would only require the conviction relate to one characteristic (qualifications, functions, or duties) instead of all three as existing law now technically reads (qualifications, functions, and duties). According to DCA, BAR is one of several programs that do not have specific statutory authority to discipline a licensee due to the conviction of a substantially related crime. Instead, BAR relies on BPC Section 490 which provides general authority for such discipline. Recently, an appellate case has cast doubt on the applicability of Section 490 in cases where the licensing agency has no similar specific statute in its disciplinary provisions (Petropoulos v. Dept. of Real Estate, August 30, 2006, DJDAR 11720). Last year SB 797 (Ridley-Thomas, Chapter 33, Statutes of 2008) clarified the intent of the Legislature in enacting Section 490. However, despite the amendment prosecuting ARDs is still difficult because some Administrative Law Judges (ALJs) do not acknowledge the legislative intent regarding Section 490 and BAR's authority. Therefore, it is necessary for BAR to have specific authority to take disciplinary action. This bill clarifies that BAR may take disciplinary action for a conviction relating to the "qualifications, functions, or duties" rather than to "qualifications, functions, and duties." Thus requiring the conviction to relate to any one characteristic (qualifications, functions, or duties) instead of all three. While the smog check program requires a smog check station to post a sign advising customers of the prescribed cost limits, it does not provide adequate information to consumers about the smog check program and more specifically, about the Consumer Assistance Program (CAP). Department of Real Estate (DRE). Makes technical and clarifying changes to the real estate law (BPC 10146). SUPPORT AND OPPOSITION: Support: California Board of Accountancy Contractors State License Board Opposition: SB 820 Page 11 None received as of April 22, 2009 Consultant:G. V. Ayers