BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 467


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          Date of Hearing:  July 7, 2015


                   ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS


                                Susan Bonilla, Chair


          SB  
          467 (Hill) - As Amended July 1, 2015


          SENATE VOTE:  40-0


          SUBJECT:  Professions and vocations.


          SUMMARY:  Requires the Department of Consumer Affairs (DCA) to  
          receive approval of the Legislature to levy any pro rata charges  
          against any of the boards, bureaus, or commission for  
          administrative expenses of the DCA; requires the Attorney  
          General (AG) to submit specified reports and information to the  
          Legislature annually; provides that the Director or the DCA,  
          through its Division of Investigation (DOI), must work with the  
          health care boards to implement "Complaint Prioritization  
          Guidelines" as specified; extends until January 1, 2020 the  
          provisions establishing the California Accountancy Board (CBA)   
          and the term of the executive officer; and allows the CBA to  
          provide for certain practice restrictions on the license of an  
          accountant for disciplinary reasons; extends the sunset date for  
          the Contractors State License Board (CSLB) from January 1, 2016  
          until January 1, 2020, and updates and strengthens the financial  
          requirements placed on contractors.  


          EXISTING LAW:









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          1)Specifies that there is in the state government, in the  
            Business, Consumer Services, and Housing Agency, a DC.   
            (Business and Professions Code (BPC) § 100)


          2)Specifies that the entities under DCA are established for the  
            purpose of ensuring that those private businesses and  
            professions deemed to engage in activities which have  
            potential impact upon the public health, safety, and welfare  
            are adequately regulated in order to protect the people of  
            California.  (BPC § 101.6)


          3)Specifies the powers and duties of the Director of the DCA.   
            (BPC § 310)


          4)Provides that a charge for the estimated administrative  
            expenses of the DCA, not to exceed the available balance in  
            any appropriation for any one fiscal year, may be levied in  
            advance on a pro rata share basis against any boards, bureaus,  
            commissions, divisions, and agencies, at the discretion of the  
            Director and with the approval of the Department of Finance.   
            (BPC § 201 (a)(1))


          5)Requires the DCA to submit a report of the accounting of the  
            pro rata calculation of administrative expenses to the  
            appropriate policy committees of the Legislature on or before  
            July 1, 2015, and on or before July 1 of each subsequent year.  
             


          (BPC § 201 (a)(2))
          6)Requires the DCA to conduct a one-time study of its current  
            system for prorating administrative expenses to determine if  
            that system is the most productive, efficient, and  
            cost-effective manner for the DCA and the agencies comprising  








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            the DCA and that the study shall include information as  
            specified.  (BPC § 201 (b))


          7)Requires the Director of the DCA to submit to the Governor and  
            the Legislature on or before January 1, 2003, and annually  
            thereafter, a report of programmatic and statistical  
            information, as specified, regarding the activities of the DCA  
            and its constituent entities for the previous fiscal year.   
            (BPC § 312)


          8)Requires the Office of Administrative Hearings (OAH) to submit  
            a report to the DCA, the Governor, and the Legislature on or  
            before January 1, 2016, and on or before January 1 of each  
            subsequent year that includes specified statistical  
            information regarding cases referred to each office of OAH.   
            (BPC § 312.1)


          9)Specifies that it shall be the duty of the Director to receive  
            complaints from consumers concerning various violations of the  
            Business and Professions Code relating to businesses and  
            licensed professions, unfair or deceptive acts or practices by  
            any person in the conduct of any trade or commerce, and the  
            production, distribution, sale and lease of any goods or  
            services undertaken by any person which may endanger the  
            public health, safety or welfare.  (BPC § 325)


          10)Requires the Director to transmit any valid complaint to the  
            appropriate local, state or federal agency whose authority  
            provides the most effective means to secure the relief and it  
            shall be the continuing duty to the Director to discern  
            patterns of complaints and to ascertain the nature and extend  
            of action taken with respect to the probably violations or  
            pattern of complaints.  (BPC § 326)










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          11)Provides that in order to ensure that its resources are  
            maximized for the protection of the public, the Medical Board  
            of California (MBC) shall prioritize its investigative and  
            prosecutorial resources to ensure that physicians and surgeons  
            representing the greatest threat of harm are identified and  
            disciplined expeditiously and that cases be given the highest  
            priority as specified.  (BPC § 2220.05 (a))


          12)Provides that the MBC may by regulation prioritize other  
            cases that are not designated as high priority cases.  (BPC §  
            2220.05 (b))


          13)Provides that the California Board of Accountancy (CBA)  
            within the DCA is responsible for the licensure and regulation  
            of accountants and is required to designate an executive  
            officer and repeals these provisions on January 1, 2016.


          (BPC § 5000 et seq.)
          14)Provides that a person shall be deemed to be engaged in the  
            practice of public accountancy if he or she performs certain  
            acts, makes certain representations, and renders accounting  
            services to the public and clients for compensation.  


          (BPC § 5051)
          15)Provides that the CBA, after notice and hearing, may revoke,  
            suspend, or refuse to renew any permit or certificate granted  
            by the CBA, or may censure the holder of that permit or  
            certificate for unprofessional conduct that includes, but is  
            not limited to, one or any combination of criminal acts,  
            specified false statements or omissions, dishonesty, fraud,  
            gross negligence or repeated negligent acts in performance of  
            professional standards, and other acts or violations as  
            specified.  (BPC § 5100)     










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          16)Provides for the licensure and regulation of more than  
            300,000 contractors under the Contractors State License Law  
            (Contractors Law) by the CSLB within the DCA).  The CSLB is  
            under the direction of the registrar of contractors  
            (Registrar).  (Business and Professions Code (BPC) § 7000 et  
            seq.)


          17)Establishes the CSLB until January 1, 2016 to license and  
            regulate the practice of contracting.  (BPC § 7000.5)


          18)Authorizes CSLB to appoint, with DCA director approval, a  
            registrar of contractors as executive officer and secretary of  
            the Board until January 1, 2016.  (BPC § 7011)


          19)Requires that all applicants, and all licensees at renewal,  
            demonstrate, as evidence of financial solvency, that his or  
            her operating capital exceeds $2,500.  


          (BPC § 7067.5)
          20)Requires a licensed contractor to file or have on file a  
            contractor's bond in the sum of $12,500.  (BPC § 7071.6(a))


          THIS BILL:


          1) Requires the DCA to receive approval of the Legislature to  
             levy in advance a charge for the estimated administrative  
             expenses of the DCA on a pro rata share basis against any of  
             the boards, bureaus, commissions, divisions, and agencies for  
             the estimated administrative expenses of the DCA.

          2) Requires the AG to submit a report to the DCA, the Governor,  
             and the appropriate policy committees of the Legislature on  
             or before January 1, 2018 and on or before January 1 of each  








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             subsequent year, that includes, at a minimum, specific  
             statistical information regarding accusation matters referred  
             to the AG for each constituent entity within the DCA  
             represented by the Licensing Section and Health Quality  
             Enforcement Section of the Office of the AG.

          3) Extends until January 1, 2020 the provisions establishing the  
             CBA and the term of the Executive Officer. Provides that the  
             CBA, after notice and hearing may, for unprofessional  
             conduct, permanently restrict or limit the practice of a  
             licensee or impose a probationary term or condition on a  
             license, which prohibits the licensee from performing or  
             engaging in any of the acts or services as provided for in  
             the practice of accountancy, and that unprofessional conduct  
             shall include, but not be limited to, those grounds for  
             discipline or denial as specified. 

          4) Allows a licensee to petition the CBA as provided for  
             reduction of penalty or reinstatement of the privilege to  
             engage in the service or act restricted or limited by the  
             CBA.

          5) Provides that the authority of sanctions provided are in  
             addition to any other civil, criminal, and administrative  
             penalties or sanctions provided by law, and do not supplant,  
             but are cumulative to, other disciplinary authority,  
             penalties or sanctions.

          6) Specifies that failure to comply with any restrictions or  
             limitation imposed by the CBA is grounds for revocation of  
             the license.

          7) Extends CSLB and the authorization to appoint a Registrar  
             until January 1, 2020.

          8) Deletes the existing requirement that contractors maintain  
             $2,500 in capital.

          9) Increases the existing surety bond requirement from $12,500  








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             to $15,000.

          FISCAL EFFECT:   According to the Senate Appropriations  
          Committee Analysis dated May 11, 2015, this bill will result in  
          the following: 


                 Board of Accountancy: projected expenditures of  
               approximately $14.1 million annually, supporting 98.8 PY,  
               until January 1, 2020, partially offset by annual fee  
               revenues of approximately $5.4 million in 2015-16, based on  
               the proposed 2015-16 budget.  Annual fee revenues will  
               increase to approximately $11 million annually beginning  
               July 1, 2016.

                 The AG's Office indicates that it would incur  
               significant increased workload and costs of approximately  
               $1.45 million in 2015-16 ($537,000 General Fund and  
               $911,000 Legal Services Revolving Fund - LSRF), $1.8  
               million in 2016-17 ($268,000 General Fund and $1.534  
               million LSRF), and $1.534 million ongoing (LSRF).  AG costs  
               from the LSRF would be reimbursed from the funds of the  
               boards and bureaus that refer cases to the AG.



                 Unknown impact on the funds and accounts of individual  
               boards and bureaus as a result of transferring the  
               authority to the Legislature for setting pro-rata charges  
               on boards and bureaus to cover DCA's administrative  
               expenses.  There should not be a net overall impact to the  
               charges, but the change will likely result in losses to  
               some funds and gains to others. 





                 Board of Contractors: projected expenditures of  








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               approximately $63 million annually, until January 1, 2020,  
               partially offset by annual fee revenues of approximately  
               $55-56 million, based on the proposed 2015-16 budget.
          


          COMMENTS:


          


          Purpose. This bill is sponsored by the author.  According to the  
          author, this bill is "?necessary to extend the sunset date of  
          the (CBA) in order to ensure continued oversight of accountancy  
          profession. This measure would require approval of the  
          Legislature for the administrative pro rata charges of the DCA  
          against any of its boards, bureaus, commissions, divisions, and  
          agencies (boards) for the estimated administrative expenses of  
          the DCA.  With current pro rata costs incurred by most boards,  
          and the potential for additional costs because of the BreEZe  
          project and the potential for fee increases for many of these  
          boards, the Legislature needs to give careful consideration to  
          pro rata costs charged to the boards, rather than just the  
          Department of Finance.  This bill will also establish and  
          enhance mandatory reporting requirements for the AG's office and  
          require health care boards to prioritize complaints to assist  
          policy makers in determining how best to solve the long standing  
          problem of delayed disciplinary action. Also, this bill is  
          necessary to extend the sunset date of CSLB in order to ensure  
          continued oversight of the contractors industry."


          The Department of Consumer Affairs (DCA).  The mission of DCA is  
          to "protect and serve the interests of California consumers." By  
          statute, consumer protection is the primary purpose for all of  
          the regulatory programs located within DCA, which includes 26  
          boards, nine bureaus, two committees, one program, and one  
          commission. Collectively, these entities regulate more than 100  








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          types of businesses and 200 different industries and  
          professions.  For example, doctors, auto mechanics, private  
          security companies, and beauty salons are all regulated by the  
          DCA.  



          As regulators, these entities perform two basic program  
          functions: licensing and enforcement.  Licensing entails  
          ensuring only those who meet minimum standards are issued a  
          license to practice, and enforcement entails investigation of  
          alleged violations.  During the March 2015, Sunset Review  
          Hearing, and in the Senate Committee's Background Paper on the  
          DCA, several issues were raised relating to the administration  
          and operations of the DCA.  

          This bill addresses some of those issues raised during the  
          Sunset Review process regarding the DCA, including 1)  
          Legislative oversight of pro rata charges which are charged to  
          the boards, 2) prioritization of disciplinary cases, and 3)  
          specific enforcement reporting requirements for the AG's Office.  
           
          Pro Rata.  According to the DCA's "Response to Sunset Review  
          Issues" report dated April 23, 2015 "While the BreEZe project  
          represents a significant cost to the DCA, the cost is a  
          relatively small portion of each board and bureau's special fund  
          expenditures, and thus is not the sole reason for any specific  
          fee increase by any program within the DCA.  According to the  
          Senate Business, Professions & Economic Development analysis  
          dated April 27th 2015, 18 of the 39 boards and bureaus are  
          projected to have less than 3 months in reserve. And if these  
          projections are accurate then these 18 programs could be seeking  
          fee increases next fiscal year. However, according to the DCAs  
          response, they believe 17 are being closely monitored as being  
          projected to drop under the three month reserve. And of the 17,  
          five are planning to raise fees to address their projected  
          insolvency. 










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          SB 1243 (Lieu), chapter 395, statutes of 2014, required the DCA  
          to conduct a onetime study of the pro rata charges.  SB 1243  
          required the study to consider whether some of the services  
          should be outsourced or if the DCA boards could elect to opt-out  
          of some of the administrative services.  


          DCA was asked to explain the board and bureau's involvement with  
          the calculation and payment of pro rata and what happens when a  
          board does not agree with DCA pro rata assessment.  The DCA  
          responded that "every January, the DCA's budget office meets  
          with each board and bureau to present the proposed  budget for  
          the next fiscal year and to address the various budget  
          adjustments made to their individual budgets.  The DCA outlines  
          the services provided as well as the methodology for  
          distributing costa (i.e. by position count, usage or combination  
          of the two to the boards and bureaus). At this meeting, and at  
          any time throughout the year, questions and concerns related to  
          the allocation of pro rata are discussed and concerns are  
          addressed as needed. The DCA has not had instances where a board  
          or bureau did not concur with the DCA pro rata methodology." 


          Since this information is known directly to the boards then the  
          same information should be available to the legislature as to  
          provide more transparency of the pro rata.  This bill will  
          require pro rata charges for the boards, bureaus, and  
          commissions are approved by the Legislature. 


          DCA contends that "additional legislative approval of the DCA's  
          pro rata assessment is not necessary as that authority already  
          exists through the current budget process" while that is true  
          the budget process only looks at their current numbers and  
          overall budget, they do not have full authority or knowledge of  
          the pro rata charges to change or make recommendations. 


          Consumer Protection Enforcement Initiative (CPEI).  During the  








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          sunset review hearing, an issue was raised about the length of  
          time the DCA's investigations process took to complete.  Raised  
          from those discussions were the relationship between the AG's  
          office and the Office of Administrative Hearings (OAH).  The  
          AG's office must use the OAH to schedule and conduct the  
          disciplinary hearings.  The OAH is required to provide data for  
          performance measures to review the length of time it takes to  
          complete the complaint process. When completed, these  
          performance measures provide an overview of the investigation  
          process and allow the DCA and the Legislature to gauge the  
          effectiveness of the Consumer Protection Enforcement Initiative  
          (CPEI).  Missing from the performance measures is the  
          information about the prosecution process once it arrives in the  
          AG's office.


          Another essential part of the CPEI was enhancing the use of  
          non-sworn investigative staff to conduct less complex  
          investigations for the health care boards. The DCA issues  
          "Complaint Prioritization Guidelines" for boards to utilize in  
          prioritizing their respective complaint and investigative  
          workloads.  These guidelines established three categories of  
          complaint identification: Urgent, High and Routine.  Cases  
          categorized as urgent or high would be investigated by sworn  
          staff at the DCA's Department of Investigation (DOI).  These  
          guidelines coupled with training were designed to free up sown  
          staff so that they could work on complex investigations.


          CPEI staffing enhancements were approved by the Legislature with  
          this model in mind. It does not appear these guidelines are  
          being followed by the boards under the DCA. However, at least  
          two of the boards have set their own prioritization requirements  
          for complaints, one of them being the Medical Board.  The DCA  
          should work more closely with the boards to make sure these  
          guidelines are being implemented.  To address this issue, this  
          bill will require that the DCA, through the DOI, implement  
          "Complaint Prioritization Guidelines" for boards to utilize in  
          prioritizing their complaint and investigative workloads and to  








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          determine the referral of complaints to the division and those  
          that are retained by the health care boards for investigation.


          Accountancy Board (CBA). The CBA is a public majority board and  
          is composed of 15 members: seven Certified Public Accountants  
          (CPAs) and eight public members who cannot be licensees of the  
          CBA, or registered by the CBA.  The CBA enforces the Accountancy  
          Act which defines the practice of public accountancy as the  
          process of recording classifying, reporting and interpreting the  
          financial data of an individual or an organization.  In  
          California, the accounting profession's licensed practitioners  
          are CPAs and Public Accountants (PA).


          As accounting practitioners, CPAs and PAs are proprietors,  
          partners, shareholders and staff employees of public accounting  
          firms.  They provide professional services to individuals,  
          private and public companies, financial institutions, nonprofit  
          organizations, and local, state and federal government entities.  
           CBA's regulatory authority over CPAs, PAs, and accounting firms  
          is guided by CBA's statutory mandate to protect the public.


          The CBA was last reviewed by the Senate Business, Professions  
          and Economic Development Committee in 2011.  At that time, the  
          Committee raised nine issues with several recommendations.  On  
          November 1, 2014, the CBA submitted its required sunset report  
          to the Committees.  In this report, the CBA described actions it  
          has taken since its prior sunset review to address the issues  
          and recommendations raised by the Senate Business, Professions  
          and Economic Development Committee.  The CBA addressed all of  
          the nine issues raised by the Committee and attempted to comply  
          with the recommendations of the Committee.


          As a result of the CBA's recent sunset review, the Senate  
          committee raised an issue pertaining to the CBA's inability to  
          restrict, limit or place on probation a license rather than  








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          revoke.


          The CBA has the authority to revoke, suspend, or refuse to renew  
          any permit or certificate, or censure the holder of that permit  
          or certificate due to unprofessional conduct.  In 2005 the  
          legislature took steps to clarify the meaning of dishonesty,  
          fraud and gross negligence contained in the provision (BPC §  
          5100).  They also added the following to professional conduct:  
          unlawful practice of public accountancy in another state and the  
                                                  imposition of any discipline, penalty, or sanction on a license  
          by the Public Company Accounting Oversight Board or the United  
          States Securities and Exchange Commission. 


          This provision, however, does not provide the CBA or an  
          Administrative Law Judge (ALJ), the authority to consider  
          including permanent practice restrictions. Currently, practice  
          restrictions may only be imposed beyond the probationary term  
          when specifically agreed to by the licensee via a stipulated  
          settlement.  In some instances, to protect the public, permanent  
          practice restrictions may be warranted.  However, if the  
          licensee is unwilling to agree to such terms via a stipulated  
          settlement, the only recourse for the CBA is to seek revocation  
          of the license. This bill would allow the CBA, and the ALJ, to  
          include permanent practice restrictions as part of a  
          disciplinary order, as opposed to seeking a complete license  
          revocation.  Allowing the licensee to retain a license and be  
          able to practice and earn income in such areas where competency  
          is not compromised.  


          Contractors State Licensing Board (CSLB). Under current law BPC  
          § 7067.5 requires that all applicants and all licensees at  
          renewal, demonstrate, as evidence of financial solvency, that  
          his or her operating capital exceeds $2500.  The applicant shall  
          provide answers to questions contained in a standard form  
          questionnaire as required by the Registrar relative to financial  
          ability and signed under the penalty of perjury.  The financial  








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          information required by the Registrar shall be confidential and  
          not a public record, but where relevant, shall be admissible as  
          evidence in any administrative hearing or judicial action or  
          proceeding.  The Registrar may destroy any financial information  
          which has been on file for a period of at least three years. The  
          financial information obtained by the Registrar is unverifiable  
          by the CSLB.  If needed, this bill will delete this code section  
          and increase the surety bond by $2,500, thereby, increasing the  
          bond from $12,500 to $15,000.

          Surety bonds. BPC § 7071.6 requires that applicants or licensees  
          have on file, at all times, proof of a $12,500 surety contractor  
          bond.  This requirement is precedent to the issuance,  
          reinstatement, reaction, renewal, or continued maintenance of a  
          license. Surety bonds are a pledge made by an individual or  
          company that guarantees another individuals' or company's  
          performance according to a contract's terms. With the deletion  
          of BPC § 7067.5 the surety bond will be increased from $12,000  
          to $15,000 to provide greater consumer protection.

          ARGUMENTS IN SUPPORT: 

           California Society of Certified Public Accountants  writes in  
          support, they "support the CBA as the regulator of the CPA  
          profession in California and its efforts to ensure consumers  
          receive quality accounting services from licensees they can  
          trust."


          ARGUMENTS IN OPPOSITION:


          None on file.


          REGISTERED SUPPORT:  


          California Society of Certified Public Accountants








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          REGISTERED OPPOSITION:  
          None on file.




          Analysis Prepared by:Robert Boykin / B. & P. / (916)  
          319-3301