BILL NUMBER: AB 1855 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 9, 2012
INTRODUCED BY Assembly Member Torres
FEBRUARY 22, 2012
An act to amend Section 6601 of the Welfare and
Institutions Code, relating to mental health. An act
to amend Section 2810 of the Labor Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 1855, as amended, Torres. Sexually violent predators:
evaluations. Employment: contractors: sufficient funds.
Existing law prohibits a person or entity from entering into a
contract or agreement for labor or services with specified types of
contractors if the person or entity knows or should know that the
contract or agreement does not include funds sufficient to allow the
contractor to comply with all applicable local, state, and federal
laws or regulations governing the labor or services to be provided.
This bill, in addition, would make these provisions applicable
with regard to warehouse contractors. The bill also would clarify
that the contracts or agreements of the specified contractors must
include funds sufficient to allow the contractor to comply with all
applicable local, state, and federal laws or regulations governing
the labor or services to be provided, including the payment of the
legally required wage rate by classification, as applicable.
Existing law provides for the civil commitment of criminal
offenders who have been determined to be sexually violent predators
for treatment in a secure state hospital facility, as specified.
Under existing law, persons to be evaluated for civil commitment are
evaluated by 2 practicing psychiatrists or psychologists, or one
practicing psychiatrist and one practicing psychologist, designated
by the Director of Mental Health. If the evaluators agree, then a
petition for civil commitment may be filed. If the evaluators do not
agree, but one evaluator thinks that the person is eligible for
commitment, then 2 new evaluations by independent professionals, as
specified, are arranged and a petition may not be filed unless both
evaluators agree that the person meets the criteria.
This bill would require, when the first 2 evaluators disagree, a
new evaluation by one independent professional to determine if the
person meets the criteria for commitment. If this independent
professional determines that the person meets the criteria, the bill
would require another evaluation by an independent professional, and
would require the second evaluator to concur that the person meets
the criteria before a petition may be filed.
Vote: majority. Appropriation: no. Fiscal committee: yes
no . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2810 of the Labor
Code is amended to read:
2810. (a) A person or entity may shall
not enter into a contract or agreement for labor or services
with a construction, farm labor, garment, janitorial, or
security guard , or warehouse contractor, where
the person or entity knows or should know that the contract or
agreement does not include funds sufficient to allow the contractor
to comply with all applicable local, state, and federal laws or
regulations governing the labor or services to be provided ,
including the payment of the legally required wage rate by
classification, as applicable .
(b) There is a rebuttable presumption affecting the burden of
proof that there has been no violation of subdivision (a) where the
contract or agreement with a construction, farm labor, garment,
janitorial, or security guard , or warehouse
contractor meets all of the requirements in subdivision (d).
(c) Subdivision (a) does not apply to a person or entity who
executes a collective bargaining agreement covering the workers
employed under the contract or agreement, or to a person who enters
into a contract or agreement for labor or services to be performed on
his or her home residences, provided that a family member resides in
the residence or residences for which the labor or services are to
be performed for at least a part of the year.
(d) To meet the requirements of subdivision (b), a contract or
agreement with a construction, farm labor, garment, janitorial,
or security guard , or warehouse
contractor for labor or services must be in writing, in a single
document, available to an employee upon request, and
contain all of the following provisions, in addition to any other
provisions that may be required by regulations adopted by the Labor
Commissioner from time to time:
(1) The name, address, and telephone number of the person or
entity and the construction, farm labor, garment, janitorial,
or security guard , or warehouse
contractor through whom the labor or services are to be provided.
(2) A description of the labor or services to be provided and a
statement of when those services are to be commenced and completed.
(3) The employer identification number for state tax purposes of
the construction, farm labor, garment, janitorial, or
security guard , or warehouse contractor.
(4) The workers' compensation insurance policy number and the
name, address, and telephone number of the insurance carrier of the
construction, farm labor, garment, janitorial, or
security guard , or warehouse contractor.
(5) The vehicle identification number of any vehicle that is owned
by the construction, farm labor, garment, janitorial, or
security guard , or warehouse
contractor and used for transportation in connection with any service
provided pursuant to the contract or agreement, the number of the
vehicle liability insurance policy that covers the vehicle, and the
name, address, and telephone number of the insurance carrier.
(6) The address of any real property to be used to house workers
in connection with the contract or agreement.
(7) The total number of workers to be employed under the contract
or agreement, the total amount of all wages to be paid, and the date
or dates when those wages are to be paid.
(8) The amount of the commission or other payment made to the
construction, farm labor, garment, janitorial, or
security guard , or warehouse contractor for
services under the contract or agreement.
(9) The total number of persons who will be utilized under the
contract or agreement as independent contractors, along with a list
of the current local, state, and federal contractor license
identification numbers that the independent contractors are required
to have under local, state, or federal laws or regulations.
(10) The signatures of all parties, and the date the contract or
agreement was signed.
(e) (1) To qualify for the rebuttable presumption set forth in
subdivision (b), a material change to the terms and conditions of a
contract or agreement between a person or entity and a construction,
farm labor, garment, janitorial, or security guard
, or warehouse contractor must be in writing, in a single
document, and contain all of the provisions listed in subdivision
(d) that are affected by the change.
(2) If a provision required to be contained in a contract or
agreement pursuant to paragraph (7) or (9) of subdivision (d) is
unknown at the time the contract or agreement is executed, the best
estimate available at that time is sufficient to satisfy the
requirements of subdivision (d). If an estimate is used in place of
actual figures in accordance with this paragraph, the parties to the
contract or agreement have a continuing duty to ascertain the
information required pursuant to paragraph (7) or (9) of subdivision
(d) and to reduce that information to writing in accordance with the
requirements of paragraph (1) once that information becomes known.
(f) A person or entity who enters into a contract or agreement
referred to in subdivisions (d) or (e) shall keep a copy of the
written contract or agreement for a period of not less than four
years following the termination of the contract or agreement.
(g) (1) An employee aggrieved by a violation of subdivision (a)
may file an action for damages to recover the greater of all of his
or her actual damages or two hundred fifty dollars ($250) per
employee per violation for an initial violation and one thousand
dollars ($1,000) per employee for each subsequent violation, and,
upon prevailing in an action brought pursuant to this section, may
recover costs and reasonable attorney's fees. An action under this
section may shall not be maintained
unless it is pleaded and proved that an employee was injured as a
result of a violation of a labor law or regulation in connection with
the performance of the contract or agreement.
(2) An employee aggrieved by a violation of subdivision (a) may
also bring an action for injunctive relief and, upon prevailing, may
recover costs and reasonable attorney's fees.
(h) The phrase "construction, farm labor, garment, janitorial,
or security guard , or warehouse
contractor" includes any person, as defined in this code, whether or
not licensed, who is acting in the capacity of a construction, farm
labor, garment, janitorial, or security guard
, or warehouse contractor.
(i) (1) The term "knows" includes the knowledge, arising from
familiarity with the normal facts and circumstances of the business
activity engaged in, that the contract or agreement does not include
funds sufficient to allow the contractor to comply with applicable
laws.
(2) The phrase "should know" includes the knowledge of any
additional facts or information that would make a reasonably prudent
person undertake to inquire whether, taken together, the contract or
agreement contains sufficient funds to allow the contractor to comply
with applicable laws.
(3) A failure by a person or entity to request or obtain any
information from the contractor that is required by any applicable
statute or by the contract or agreement between them, constitutes
knowledge of that information for purposes of this section.
SECTION 1. Section 6601 of the Welfare and
Institutions Code, as amended by Section 3 of Chapter 359 of the
Statutes of 2011, is amended to read:
6601. (a) (1) Whenever the Secretary of the Department of
Corrections and Rehabilitation determines that an individual who is
in custody under the jurisdiction of the Department of Corrections
and Rehabilitation, and who is either serving a determinate prison
sentence or whose parole has been revoked, may be a sexually violent
predator, the secretary shall, at least six months prior to that
individual's scheduled date for release from prison, refer the person
for evaluation in accordance with this section. However, if the
inmate was received by the department with less than nine months of
his or her sentence to serve, or if the inmate's release date is
modified by judicial or administrative action, the secretary may
refer the person for evaluation in accordance with this section at a
date that is less than six months prior to the inmate's scheduled
release date.
(2) A petition may be filed under this section if the individual
was in custody pursuant to his or her determinate prison term, parole
revocation term, or a hold placed pursuant to Section 6601.3, at the
time the petition is filed. A petition shall not be dismissed on the
basis of a later judicial or administrative determination that the
individual's custody was unlawful, if the unlawful custody was the
result of a good faith mistake of fact or law. This paragraph shall
apply to any petition filed on or after January 1, 1996.
(b) The person shall be screened by the Department of Corrections
and Rehabilitation and the Board of Parole Hearings based on whether
the person has committed a sexually violent predatory offense and on
a review of the person's social, criminal, and institutional history.
This screening shall be conducted in accordance with a structured
screening instrument developed and updated by the State Department of
Mental Health in consultation with the Department of Corrections and
Rehabilitation. If as a result of this screening it is determined
that the person is likely to be a sexually violent predator, the
Department of Corrections and Rehabilitation shall refer the person
to the State Department of Mental Health for a full evaluation of
whether the person meets the criteria in Section 6600.
(c) The State Department of Mental Health shall evaluate the
person in accordance with a standardized assessment protocol,
developed and updated by the State Department of Mental Health, to
determine whether the person is a sexually violent predator as
defined in this article. The standardized assessment protocol shall
require assessment of diagnosable mental disorders, as well as
various factors known to be associated with the risk of reoffense
among sex offenders. Risk factors to be considered shall include
criminal and psychosexual history, type, degree, and duration of
sexual deviance, and severity of mental disorder.
(d) Pursuant to subdivision (c), the person shall be evaluated by
two practicing psychiatrists or psychologists, or one practicing
psychiatrist and one practicing psychologist, designated by the
Director of Mental Health. If both evaluators concur that the person
has a diagnosed mental disorder so that he or she is likely to engage
in acts of sexual violence without appropriate treatment and
custody, the Director of Mental Health shall forward a request for a
petition for commitment under Section 6602 to the county designated
in subdivision (i). Copies of the evaluation reports and any other
supporting documents shall be made available to the attorney
designated by the county pursuant to subdivision (i) who may file a
petition for commitment.
(e) If one of the professionals performing the evaluation pursuant
to subdivision (d) does not concur that the person meets the
criteria specified in subdivision (d), but the other professional
concludes that the person meets those criteria, the Director of
Mental Health shall arrange for further examination of the person by
one or two independent professionals selected in accordance with
subdivisions (f) and (g).
(f) If an examination by independent professionals pursuant to
subdivision (e) is conducted, one independent professional shall
evaluate the person to determine if the person meets the criteria for
commitment specified in subdivision (d). The Director of Mental
Health shall arrange for an evaluation by another independent
professional only if the first independent professional determines
that the person meets the criteria. A petition to request commitment
under this article shall only be filed if both independent
professionals who evaluate the person pursuant to subdivision (e)
concur that the person meets the criteria for commitment specified in
subdivision (d). The professionals selected to evaluate the person
pursuant to subdivision (g) shall inform the person that the purpose
of their examination is not treatment but to determine if the person
meets certain criteria to be involuntarily committed pursuant to this
article. It is not required that the person appreciate or understand
that information.
(g) Any independent professional who is designated by the
Secretary of the Department of Corrections and Rehabilitation or the
Director of Mental Health for purposes of this section shall not be a
state government employee, shall have at least five years of
experience in the diagnosis and treatment of mental disorders, and
shall include psychiatrists and licensed psychologists who have a
doctoral degree in psychology. The requirements of this section also
shall apply to any professionals appointed by the court to evaluate
the person for purposes of any other proceedings under this article.
(h) If the State Department of Mental Health determines that the
person is a sexually violent predator as defined in this article, the
Director of Mental Health shall forward a request for a petition to
be filed for commitment under this article to the county designated
in subdivision (i). Copies of the evaluation reports and any other
supporting documents shall be made available to the attorney
designated by the county pursuant to subdivision (i) who may file a
petition for commitment in the superior court.
(i) If the county's designated counsel concurs with the
recommendation, a petition for commitment shall be filed in the
superior court of the county in which the person was convicted of the
offense for which he or she was committed to the jurisdiction of the
Department of Corrections and Rehabilitation. The petition shall be
filed, and the proceedings shall be handled, by either the district
attorney or the county counsel of that county. The county board of
supervisors shall designate either the district attorney or the
county counsel to assume responsibility for proceedings under this
article.
(j) The time limits set forth in this section shall not apply
during the first year that this article is operative.
(k) An order issued by a judge pursuant to Section 6601.5, finding
that the petition, on its face, supports a finding of probable cause
to believe that the individual named in the petition is likely to
engage in sexually violent predatory criminal behavior upon his or
her release, shall toll that person's parole pursuant to paragraph
(4) of subdivision (a) of Section 3000 of the Penal Code, if that
individual is determined to be a sexually violent predator.
(l) Pursuant to subdivision (d), the attorney designated by the
county pursuant to subdivision (i) shall notify the State Department
of Mental Health of its decision regarding the filing of a petition
for commitment within 15 days of making that decision.
(m) This section shall become operative on the date that the
director executes a declaration, which shall be provided to the
fiscal and policy committees of the Legislature, including the
Chairperson of the Joint Legislative Budget Committee, and the
Department of Finance, specifying that sufficient qualified state
employees have been hired to conduct the evaluations required
pursuant to subdivision (d), or January 1, 2013, whichever occurs
first.