BILL ANALYSIS                                                                                                                                                                                                    







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        |Hearing Date:April 27, 2009    |Bill No: SB                            |
        |                               |820                                    |
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                      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).






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        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  





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             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:





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        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).









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        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  





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             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  





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          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  





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          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  





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          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."   





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          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:  






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        None received as of April 22, 2009


        Consultant:G. V. Ayers