BILL ANALYSIS
SB 820
Page 1
Date of Hearing: June 30, 2009
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Mary Hayashi, Chair
SB 820 (Business, Professions and Economic Development) - As
Amended: June 22, 2009
SENATE VOTE : 36-0
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). Specifically, this bill :
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 Services
(OPES) (BPC 139, 1632.5, 1634.2, 2493, 4200.3, 4200.4,
4938, and 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 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); and,
c) Clarifies that the provisions apply to the
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qualifications committee and clarifies its duties (BPC
5022 and 5023).
4)Makes the following changes pertaining to the California
Architects Board (CAB):
a) Establishes commencement and expiration dates for the
terms of architect and public members appointed by the
Governor (BPC 5515.5).
5)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).
6)Makes the following changes pertaining to the Board of
Professional Engineers and Land Surveyors (BPELS):
a) Repeals the qualifications to use the title of
"structural engineer" (BPC 6763.1)
7)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 and 7108.5); and,
b) Corrects a reference to another section of law and makes
technical corrections and clarifications (BPC 7159,
7159.5 and 7159.14).
8)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
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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 (VC) 28); and,
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.
9)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 and 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 and 7729); and,
c) Provides that an embalmer or apprentice embalmer
applicant must furnish official transcripts to the CFB and
deletes the requirement to have completed high school for
applicants who have graduated from a mortuary science
program (BPC 7643 and 7662).
10)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
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validate," invalidate temporarily," or "invalidate
permanently" (BPC 9884.2, 9884.7 and 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; Health and Safety Code
(HSC) 44072.1 and 44072.2);
d) Requires smog check stations seeking certification under
the "gold shield" program to offer consumers a smog test
and repair services at a singular location to enter into an
agreement with BAR (HSC 44014.2);
e) 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); and,
f) Makes technical changes to the high polluter repair or
removal program, and authorizes the air quality management
districts to enter into an agreement with DCA to perform
the program (HSC 44095).
11)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).
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.
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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
and 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 and5023).
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 and 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
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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
vehicle must notified specified law enforcement agencies
within one hour of taking possession of the vehicle (VC
28); and,
g) 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 and 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 and 7729).
9)Contains the following provisions pertaining to the Bureau of
Automotive Repair (BAR):
a) Requires DCA to validate the registration and to send
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proof of validation to the automotive repair dealer. DCA
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 and
9884.12);
b) Authorizes BAR to take disciplinary action for a
conviction relating to the "qualifications, functions, and
duties" of a licensee (BPC 9889.3, HSC 44072.1 and
44072.2); and,
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 DCA
to license and regulate real estate brokers and real estate
sales persons.
FISCAL EFFECT : Unknown
COMMENTS :
Purpose of the bill . This bill is a Committee bill authored by
the Senate 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
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
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eliminate the chance of placing any of the other provisions in
jeopardy.
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 Services (OPES).
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.
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 committee members, and naming the board's
qualifying committee and clarifying its duties.
California Architects Board (CAB). This bill makes a one-time
modification to the terms of board members to achieve a more
even and consistent sequence of terms and avoid quorum issues
that prevent CAB from taking action on important issues (BPC
5515.5). These provisions were in last year's SB 1779 (BP&ED)
that was vetoed by the Governor and reintroduced in SB 819
(Business, Professions and Economic Development) this year.
However, since SB 819 has an urgency clause, and there is a
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constitutional prohibition against creating or modifying the
term of an office through urgency legislation, it was necessary
to move these amendments into this bill.
Landscape Architects. According to CAB, 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 (Business, Professions and Economic Development),
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.
Board of Professional Engineers and Land Surveyors (BPELS).
According to BPELS, Currently, in order to obtain the licensure
as a structural engineer, applicants must pass both an 8-hour
national examination (the Structural II examination developed by
National Council of Examiners for Engineering and Surveying
[NCEES]) and an 8-hour California-specific examination. In
2010, NCEES will cease development of the Structural II
examination; therefore, that examination will no longer be
available for California to use. However, beginning with the
April 2011 examination administration, NCEES will offer a
16-hour national structural engineer examination. The Board has
voted to begin using the 16-hour national examination beginning
in 2011, rather than using an 8-hour national and an 8-hour
state examination. The way the law currently reads, the Board
would have to continue to develop and administer a state
examination. Repealing Section 6763.1 will remove the
requirement that the Board develop and administer both a
national and a state examination as "the examination prescribed
by the board" and will allow the Board to use the new national
16-hour structural engineer examination beginning in 2011 (BPC
6763.1).
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
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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 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.
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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." 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
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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).
This bill amends HSC, sections 44014.2 and 44095, to allow BAR
to enter into agreements with Gold Shield stations. This will
eliminate the need to amend individual contracts throughout the
fiscal year to reflect individual stations' CAP vehicle repair
volumes. According to the Department's Legal Affairs Office,
agreements do not require BAR to assign individual budgets to
each contract. Instead, BAR would estimate volumes for each
station and monitor expenditures to ensure expenditures remain
within the RA appropriation.
Department of Real Estate (DRE). Makes technical and clarifying
changes to the real estate law (BPC 10146).
REGISTERED SUPPORT / OPPOSITION :
Support
California Architects Board (CAB)
California Board of Accountancy (CBA)
California Funeral Directors Association (CFDA)
Contractors State License Board (CSLB)
Opposition
None on file.
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Analysis Prepared by : Joanna Gin / B. & P. / (916) 319-3301