BILL ANALYSIS ----------------------------------------------------------------------- |Hearing Date:April 19, 2010 |Bill No:SB | | |1491 | ----------------------------------------------------------------------- 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 SB 1491 Page 2 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3)Contains the following provisions relating to the Contractors State License Board (CSLB): a) Makes reference to an outdated notice about unlicensed contractors which was repealed by SB 1914 (B&P Committee, Chapter 865, Statutes of 2004) (BPC 7028.6).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). SB 1491 Page 3 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). SB 1491 Page 4 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 SB 1491 Page 5 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. SB 1491 Page 6 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 SB 1491 Page 7 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, SB 1491 Page 8 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 SB 1491 Page 9 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