BILL ANALYSIS                                                                                                                                                                                                    







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        |Hearing Date:April 19, 2010        |Bill No:SB                         |
        |                                   |1491                               |
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                      SENATE COMMITTEE ON BUSINESS, PROFESSIONS 
                               AND ECONOMIC DEVELOPMENT
                         Senator Gloria Negrete McLeod, Chair

                Bill No:        SB 1491Author:Business, Professions and
                                                                      Economic  
                                 Development Committee
                     As Introduced:     March 11, 2010  Fiscal:Yes

        
        SUBJECT:  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 
       23 boards, 4 committees, 7 bureaus, and 1 commission within the DCA  
          under various BPC licensing acts.

       2)Contains the following provisions relating to the California Board of  
          Accountancy (CBA):

           a)   Authorizes CBA to establish an administrative committee to  
             provide advice and assistance relative to investigations of  
             licensee misconduct (BPC  5020, 5021, 5120, 5122; Government  
             Code  11126).

           b)   Authorizes the creation of other advisory committees  
             consisting of public accountants or certified public accountants  
             (CPAs) who need not be members of the CBA (BPC  5024).

           c)   Requires California-licensed accounting firms to undergo a  
             peer review of their accounting and auditing services every 3  
             years, and identifies who must conduct peer reviews and issue  





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             peer review reports (AB 138, Hayashi, Chapter 312, Statutes of  
             2009) (BPC  5076).

           d)   Effective January 1, 2014, deletes the 120-hour education  
             pathway for licensure, and requires, an applicant for a CPA  
             license to meet a 150-hour education requirement (SB 819, Yee,  
             Chapter 308, Statutes of 2009) (BPC  5090).

           e)   Makes various provisions relating to accountancy (BPC  5109,  
             5109.5).

       3)Contains the following provisions relating to the Contractors State  
          License Board (CSLB): 

           a)   Makes reference to an outdated notice about unlicensed  
             contractors which was repealed by  SB 1914  (B&P Committee, Chapter  
             865, Statutes of 2004) (BPC  7028.6).

           b)   Requires a citation to an unlicensed contractor to be issued  
             within four years of the act that is the basis for the citation  
             (BPC  7028.9).

           c)   Establishes civil penalties for unlicensed contracting or  
             aiding and abetting unlicensed activity (BPC  7028.7, 7099.2).

           d)   Makes an outdated reference to the State Department of Health  
             Services, and requires CSLB to administer an asbestos open book  
             examination (BPC  7058.5).

           e)   Under the Subletting and Subcontracting Fair Practices Act in  
             the Public Contract Code (PCC  4111), authorizes the CSLB to  
             discipline contractors for violations of that Act; however, that  
             authority is not reflected in the BPC (BPC  7110).

       4)Authorizes the Board of Guide Dogs for the Blind (BGDB) to approve  
          guide dog schools to provide home guide dog training, if the school  
          applies and submits a written plan for conducting home training (BPC  
           7210.7).

       5)Contains the following provisions relating to the Board of Barbering  
          and Cosmetology (BBC):

           a)   Establishes various specialties within the practice of  
             cosmetology, and specifies that nail care is specified care for  
             the nails of any person (BPC  7316).






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           b)   Provides that unlicensed barbering, cosmetology, or  
             electrolysis is a misdemeanor violation (BPC  7317).

           c)   Prohibits a licensee providing a manicure or pedicure from  
             using metal instruments except those instruments necessary for  
             the cutting, trimming, manicuring, or pedicuring of nails or  
             cuticles (BPC  7320.1).

           d)   Requires a licensed establishment to provide handwashing  
             facilities, including running water, soap, and approved sanitary  
             towels (BPC  7352).

           e)   Provides that BBC licensees issued a notice of violation or a  
             citation may appeal to a disciplinary review committee, and  
             provides that the licensee shall appear in person and may file a  
             written appeal (BPC  7410).

       6)Contains the following provisions relating to human remains:

           a)   Specifies that cremated remains may be removed in a durable  
             container from the place of cremation or interment and kept in  
             the dwelling owned or occupied by the person having the right to  
             control disposition of the remains, or other specified places,  
             under the authority of a disposition permit issued by the local  
             registrar of vital records (Health and Safety Code  7054.6,  
             8344).

           b)   Requires a crematory to have associated with it a cemetery,  
             columbarium, burial park, or mausoleum (Health and Safety Code   
             8340).


        This bill:

       1)Makes the following changes relating to the California Board of  
          Accountancy (CBA):

           a)   Names the CBA's enforcement advisory committee so that its  
             name clearly reflects its function, and makes conforming changes  
             (BPC  5020, 5021, 5120, 5122, Government Code 11126).

           b)   Clarifies that the CBA may appoint public board members to its  
             committees (BPC  5024).

           c)   Recasts the provisions regarding issuing peer review reports  
             for greater clarity (BPC  5076).





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           d)   Cleans up language relating to alternative licensure pathways  
             which was made obsolete by last year's  SB 819  (Yee, Chapter 308,  
             Statutes of 2009) (BPC  5090).

           e)   Makes technical, correcting and updating changes (BPC  5109,  
             5109.5).

       2)Makes the following changes relating to the Contractors State License  
          Board (CSLB):

           a)   Makes conforming changes by removing a reference to a notice  
             requirement which was repealed by  SB 1914  (B&P Committee, Chapter  
             865, Statutes of 2004) (BPC  7028.6).

           b)   Extends the time for the CSLB to pursue a complaint against an  
             unlicensed contractor to 18 months after the complaint is filed,  
             conforming with the same timeframe for action against a licensee  
             (BPC  7028.9).

           c)   Clarifies that civil penalties assessed by the CSLB for  
             unlicensed contracting or aiding and abetting unlicensed activity  
             are not subject to other provisions of law which restrict fine  
             amounts (BPC  7028.7, 7099.2).

           d)   Corrects a reference to the Department of Public Health and  
             authorizes the CSLB to administer its asbestos open book  
             examination electronically (BPC  7058.5).

           e)   Clarifies that violation of the Subletting and Subcontracting  
             Fair Practices Act in the Public Contract Code is a cause for  
             disciplinary action (BPC  7110).

       3)Clarifies that guide dog schools and guide dog instructors licensed  
          by the Board of Guide Dogs for the Blind may provide in-home  
          training, regardless of the user's experience with a guide dog (BPC  
           7210.7).

       4)Makes the following changes relating to the Board of Barbering and  
          Cosmetology (BBC):

           a)   Clarifies the definition of nail care to refer to massaging,  
             cleansing, or beautifying from the elbow to the finger tips or  
             the knee to the toes (BPC  7316).

           b)   Clarifies that unlicensed activity violations which are  





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             misdemeanors may also be subject to administrative fines (BPC   
             7317).

           c)   Clarifies that metal instruments for the smoothing and  
             massaging of hands and feet may be used when providing a manicure  
             or pedicure (BPC  7320.1).

           d)   Clarifies that a licensed establishment may provide towels or  
             hand air dryers instead of "approved sanitary towels" in the  
             establishment's hand washing facilities (BPC  7352).

           e)   Clarifies that licensees appealing an administrative fine may  
             either appear in person or may file a written appeal (BPC   
             7410).

       5)Makes the following changes relating to human remains:

           a)   Provides that cremated remains may be placed into "keepsake  
             urns" and kept as authorized by those with the right to control  
             disposition; requires a disposition permit to be obtained for  
             each keepsake urn; makes conforming and clarifying changes  
             (Health and Safety Code  7054.6, 8344).

           b)   Repeals an obsolete provision that conflicts with current  
             licensure practices (Health and Safety Code  8340).


        FISCAL EFFECT:  Unknown.  This bill is keyed "fiscal" by Legislative  
        Counsel.

        
        COMMENTS:
        
        1.Purpose.  This bill is one of three "committee bills" 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 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.





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        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:

           a)   California Board of Accountancy (CBA).  According to  CBA  , the  
             term, "administrative committee," does not clearly communicate to  
             licensees or to consumers the actual role that this committee  
             fulfills as an enforcement advisory committee to the CBA;  
             therefore, the CBA has recommended renaming the committee as the  
             enforcement advisory committee.  The CBA states that current  
             practice is to allow public board members to be appointed to the  
             CBA's legislative committee, the committee on professional  
             conduct and other committees of the CBA.  However, it is unclear  
             whether this practice is consistent with BPC 5024 which states  
             that CPAs may be appointed to committees; therefore, this measure  
             would clarify the board's practice of appointing non-CPA board  
             members (i.e. public members) to committees.  The law provides  
             that a licensee must conduct a peer review, however it is not  
             clear that a licensee must issue the actual peer review report;  
             this bill would clarify those provisions.

           b)   Contractors State License Board.  According to the CSLB, the  
             requirement for an unlicensed person to give a notice to  
             consumers was repealed by  SB 1914  (B&P Committee, Chapter 865,  
             Statutes of 2004); the bill makes a conforming change by removing  
             reference to that notice.  Complaints received against unlicensed  
             contractors just prior to the expiration of the statute of  
             limitations (four years from the act or omission) cannot be  
             pursued due to the lack of sufficient time to conduct an  
             investigation, according to CSLB, while the timeframe for action  
             against a licensee is 18 months after the complaint is filed; the  
             bill conforms the timeframe for taking action against an  
             unlicensed contractor to the time for taking action against a  
             licensee.  CSLB further states that BPC  125.9 and  148 places  
             a $5,000 cap for fines assessed by agencies under the DCA, while  
             the contractor's law provides for additional civil penalties  
             assessed by the CSLB for unlicensed contracting or aiding and  
             abetting unlicensed activity.  This bill clarifies that that  
             these civil penalties are not subject to those general provisions  
             of law which restrict fine amounts.  CSLB indicates that  
             currently the asbestos open book examination is administered by  





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             paper and pencil, a more expensive and slow examination method.   
             The bill would require the CSLB to offer the exam and study  
             booklet online on its Internet website.  The CSLB also indicates  
             that the Subletting and Subcontracting Fair Practices Act in the  
             Public Contract Code ( 4111), authorizes the CSLB to discipline  
             contractors for violations of the Act; however BPC  7110 does  
             not include a specific reference to violations of the PCC.  This  
             bill would make reference to that Act.

           c)   Board of Guide Dogs for the Blind.  According to the BGDB,  
             current law is unclear, restrictive and problematic on the  
             provision of in-home training to potential guide dog users; this  
             bill clarifies these provisions and provides that guide dog  
             schools and guide dog instructors licensed by the board may  
             provide in-home training, regardless of the user's experience  
             with a guide dog.

           d)   Board of Barbering and Cosmetology.  According to the BBC, the  
             law is unclear whether the practice of nail care includes  
             massaging, cleansing, or beautifying from the elbow to the finger  
             tips or the knee to the toes.  The amendments clarify these  
             provisions.  BBC states, that although the law provides that  
             unlicensed barbering, cosmetology, or electrolysis is a  
             misdemeanor violation, it is unclear whether it may be subject to  
             an administrative citation and fine.  This bill would clarifiy  
             that unlicensed practice may also be subject to an administrative  
             fine.  BBC also indicates that the law prohibits a licensee  
             providing a manicure or pedicure from using metal instruments,  
             except those instruments necessary for the cutting, trimming,  
             manicuring or pedicuring of nails or cuticles.  However it does  
             not include the use of metal instruments to smooth or massage the  
             hands or feet.  The amendments would clarify that mental  
             instruments may be used for the smoothing and massaging the hands  
             or feet.  

           BBC further indicates that provisions requiring an establishment to  
             have "approved sanitary towels" has been a source of confusion  
             for licensees and board staff alike.  While the statute attempts  
             to be specific, it only serves to make the towel requirements  
             more vague, according to BBC, and this bill clarifies those  
             provisions.  BBC states that in order to process appeals as  
             expeditiously and conveniently as possible for licensees, the  
             BBC's disciplinary review committee has recently allowed  
             citations to be appealed in writing without the licensee  
             physically appearing.  However, the statutory language could be  
             interpreted to require the physical appearance of the appellant,  





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             which is expensive for the licensee, and time consuming for the  
             disciplinary review committee.  Giving individuals the option to  
             submit a written appeal would mitigate these issues, according to  
             BBC.

           Human Remains.  According to DCA, current law requires a crematory  
             to be associated with a cemetery, columbarium, burial park, or  
             mausoleum.  However, this provision is confusing because it seems  
             to suggest that a crematory must be located within a cemetery.   
             Many licensed crematories do not operate within a cemetery and  
             the provision is outdated.  The amendment will repeal this  
             provision.

           According to the  California Funeral Directors Association  (CFDA),  
             the Health and Safety Code makes specified provisions regarding  
             cremated remains including providing that cremated remains may be  
             removed in a durable container from the place of cremation or  
             interment and kept in the dwelling owned or occupied by the  
             person having the right to control disposition of the remains, or  
             other specified places, under the authority of a disposition  
             permit issued by the local registrar of vital records.  These  
             provisions do not allow for family members or other loved ones to  
             use keepsake urns to hold small portions of the cremated remains.  
              This bill would permit the use of keepsake urns, as specified  
             (Health and Safety Code  7054.6, 8344).

        3.Arguments in Support.  The  Contractors State License Board  (CSLB)  
          writes in support that existing law authorizes the Registrar of  
          Contractors to discipline a licensee for violations of the licensing  
          law within 4 years after the act or omission that is the basis for  
          the discipline, or within 18 months after the complaint is made,  
          whichever is later.  This bill would provide the same statute of  
          limitations period for issuing a citation to a non-licensee for  
          contracting without a license.  Currently any action must be taken  
          within 4 years of the act.  The additional 
        18 months is needed to ensure there is adequate time to investigate  
          complaints that are received too close to the filing deadline.  

        CSLB further indicates that revising the open-book asbestos  
          examination to require the CSLB to make the asbestos examination  
          booklet available online would provide efficiencies and cost savings  
          to the board.

        CSLB additionally states that the bill harmonizes the Business and  
          Professions Code with the Public Contract Code by adding the  
          specific disciplinary provisions for willful or deliberate disregard  





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          of the state building labor and safety laws to the contractor  
          licensing laws.


        SUPPORT AND OPPOSITION:
        
         Support:   

        California Board of Accountancy
        Contractors State License Board
        State Board of Guide Dogs for the Blind

         Opposition:  

        None received as of April 12, 2010.



        Consultant:G. V. Ayers