BILL NUMBER: AB 1546 CHAPTERED
BILL TEXT
CHAPTER 475
FILED WITH SECRETARY OF STATE SEPTEMBER 25, 1997
APPROVED BY GOVERNOR SEPTEMBER 24, 1997
PASSED THE ASSEMBLY AUGUST 28, 1997
PASSED THE SENATE AUGUST 12, 1997
AMENDED IN SENATE JULY 21, 1997
AMENDED IN SENATE JUNE 19, 1997
AMENDED IN ASSEMBLY MAY 20, 1997
AMENDED IN ASSEMBLY APRIL 10, 1997
INTRODUCED BY Committee on Consumer Protection, Governmental
Efficiency and Economic Development (Assembly Members Davis (Chair),
Campbell (Vice Chair), Alquist, Figueroa, Firestone, Machado,
Morrissey, Napolitano, Ortiz, and Strom-Martin)
MARCH 5, 1997
An act to amend Sections 5528, 5600, 5615, 5616, 5626, 5681, 5682,
5683, 7200, 7616, 7635, 8010, 8017, 8018, 8024.5, 8024.6, 8025,
8030.2, 8030.4, 8030.6, and 8030.8 of, to add Sections 102.3 and 5624
to, to add and repeal Section 5620 of, to repeal Sections 5623,
5625, 5627, and 5628 of, and to repeal and add Sections 5621 and 5622
of, the Business and Professions Code, and to amend Section 7100 of,
and to add Section 7100.1 to, the Health and Safety Code, relating
to consumer affairs, and making an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
AB 1546, Committee on Consumer Protection, Governmental Efficiency
and Economic Development. Consumer affairs.
(1) Existing law (Chapter 908 of the Statutes of 1994) transferred
the licensing and regulation of various occupations and professions
administered by various boards in the Department of Consumer Affairs
to the department itself.
This bill would authorize the director of the department to enter
into interagency agreements with appropriate entities within the
department and to delegate to them the duties, powers, purposes,
responsibilities, and jurisdiction that have been succeeded to and
vested with the department, as specified. It would authorize an
entity receiving that delegation to establish technical committees to
regulate the profession subject to the authority that has been
delegated.
(2) The Architects Practice Act (hereafter the act) authorizes the
California Board of Architectural Examiners to contract with
architect consultants.
This bill would specify the types of services that architect
consultants may perform.
(3) Existing law permits a licensee under the act to renew an
unexpired license by applying for renewal on a prescribed form and
paying the renewal fee.
This bill would provide that the renewal form shall contain a
statement by the licensee of whether he or she was convicted of a
crime or disciplined by another public agency during the preceding
renewal period and a statement that the representations in the
application are true, correct, and contain no material omissions of
fact, to the best knowledge of the licensee.
(4) Existing law provides for the existence of a California State
Board of Landscape Architects the duties and powers of which are
vested in the Department of Consumer Affairs as of the date the
provisions establishing the board become inoperative and are
repealed.
This bill would transfer the duties and powers from the department
to the California Board of Architectural Examiners, which would be
authorized to delegate its authority to a Landscape Architect
Technical Committee, as specified. The bill would make related
changes.
(5) The State Board of Guide Dogs, under existing law, is
scheduled to become inoperative on July 1, 1997, and will be repealed
on January 1, 1998, unless extended by future legislation.
This bill would extend the inoperative and repeal dates for the
board for 5 years.
(6) The Funeral Directors and Embalmers Law provides for the
licensure and regulation of funeral directors and embalmers, and
provides for the licensing of funeral establishments.
This bill would provide that every funeral establishment holding a
funeral director's license on December 31, 1996, shall, upon
application and payment of fees, be issued a funeral establishment
license.
(7) Existing law requires any person employed by, or an agent of,
a licensed funeral establishment who consults with a family of a
deceased person or its representatives concerning the arranging of
funeral services to receive documented training and instructions on
laws, rules, and regulations pertaining to specified subjects.
This bill would exclude from that requirement anyone who has
successfully passed the funeral directors examination, as specified.
(8) Under existing law, the Court Reporters Board of California
administers the provisions governing the practice of shorthand
reporting and issues certificates permitting the practice of
shorthand reporting, as defined, to qualified persons. It is
unlawful for a person to engage in shorthand reporting unless that
person is the holder of a valid certificate issued by the board.
This bill would make various revisions to provisions affecting
certified shorthand reporters, including stating the public status of
citations, fines, and orders of abatement issued against licensees.
The bill would also require passing the licensing exam in order to
renew a certificate that is not renewed within 3 years of its
expiration, and would require written notice to the board of all name
changes. The bill would make various changes to provisions
governing reimbursement from the Transcript Reimbursement Fund, which
is a continuously appropriated fund, for transcripts in
non-fee-generating cases involving low-income litigants, including
permitting reimbursement for per diem charges. This authorization
for reimbursement for per diem charges would constitute an
appropriation.
(9) Existing law governs the disposition of the remains of a
deceased person.
This bill would make various revisions to these provisions. The
bill would also make technical, conforming changes.
(10) Since a violation of the provisions governing certified
shorthand reporters is a misdemeanor, this bill would create a
state-mandated local program by expanding the scope of an existing
crime.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Appropriation: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 102.3 is added to the Business and Professions
Code, to read:
102.3. (a) The director may enter into an interagency agreement
with an appropriate entity within the Department of Consumer Affairs
as provided for in Section 101 to delegate the duties, powers,
purposes, responsibilities, and jurisdiction that have been succeeded
and vested with the department, of a board, as defined in Section
477, which became inoperative and was repealed in accordance with
Chapter 908 of the Statutes of 1994.
(b) (1) Where, pursuant to subdivision (a), an interagency
agreement is entered into between the director and that entity, the
entity receiving the delegation of authority may establish a
technical committee to regulate, as directed by the entity, the
profession subject to the authority that has been delegated. The
entity may delegate to the technical committee only those powers that
it received pursuant to the interagency agreement with the director.
The technical committee shall have only those powers that have been
delegated to it by the entity.
(2) Where the entity delegates its authority to adopt, amend, or
repeal regulations to the technical committee, all regulations
adopted, amended, or repealed by the technical committee shall be
subject to the review and approval of the entity.
(3) The entity shall not delegate to a technical committee its
authority to discipline a licentiate who has violated the provisions
of the applicable chapter of the Business and Professions Code that
is subject to the director's delegation of authority to the entity.
(c) An interagency agreement entered into, pursuant to subdivision
(a), shall continue until such time as the licensing program
administered by the technical committee has undergone a review by the
Joint Legislative Sunset Review Committee to evaluate and determine
whether the licensing program has demonstrated a public need for its
continued existence. Thereafter, at the director's discretion, the
interagency agreement may be renewed.
SEC. 1.2. Section 5528 of the Business and Professions Code is
amended to read:
5528. (a) The board may select and contract with necessary
architect consultants who are licensed architects to assist it in its
enforcement program on an intermittent basis. The architect
consultants shall perform only those services that are necessary to
carry out and enforce this chapter.
(b) For the purposes of Division 3.6 (commencing with Section 810)
of Title 1 of the Government Code, any consultant under contract
with the board shall be considered a public employee.
SEC. 2. Section 5600 of the Business and Professions Code is
amended to read:
5600. (a) All licenses issued or renewed under this chapter shall
expire at 12 midnight on the last day of the birth month of the
licenseholder in each odd-numbered year following the issuance or
renewal of the license.
(b) To renew an unexpired license, the licenseholder shall, before
the time at which the license would otherwise expire, apply for
renewal on a form prescribed by the board and pay the renewal fee
prescribed by this chapter.
(c) The renewal form shall include a statement specifying whether
the licensee was convicted of a crime or disciplined by another
public agency during the preceding renewal period and that the
licensee's representations on the renewal form are true, correct, and
contain no material omissions of fact, to the best knowledge and
belief of the licensee.
SEC. 2.5. Section 5615 of the Business and Professions Code is
amended to read:
5615. As used in this chapter:
"Landscape architect" means a person who holds a certificate to
practice landscape architecture in this state under the authority of
this chapter.
A person who practices landscape architecture within the meaning
and intent of this article is a person who performs professional
services, for the purpose of landscape preservation, development and
enhancement, such as consultation, investigation, reconnaissance,
research, planning, design, preparation of drawings, construction
documents and specifications, and responsible construction
observation. Landscape preservation, development and enhancement is
the dominant purpose of services provided by landscape architects.
Implementation of that purpose includes: (1) the preservation and
aesthetic and functional enhancement of land uses and natural land
features; (2) the location and construction of aesthetically pleasing
and functional approaches and settings for structures and roadways;
and, (3) design for trails and pedestrian walkway systems, plantings,
landscape irrigation, landscape lighting, landscape grading and
landscape drainage.
Landscape architects perform professional work in planning and
design of land for human use and enjoyment. Based on analysis of
environmental physical and social characteristics, and economic
considerations, they produce overall plans and landscape project
designs for integrated land use.
The practice of a landscape architect may, for the purpose of
landscape preservation, development and enhancement, include:
investigation, selection, and allocation of land and water resources
for appropriate uses; feasibility studies; formulation of graphic and
written criteria to govern the planning and design of land
construction programs; preparation review, and analysis of master
plans for land use and development; production of overall site plans,
landscape grading and landscape drainage plans, irrigation plans,
planting plans, and construction details; specifications; cost
estimates and reports for land development; collaboration in the
design of roads, bridges, and structures with respect to the
functional and aesthetic requirements of the areas on which they are
to be placed; negotiation and arrangement for execution of land area
projects; field observation and inspection of land area construction,
restoration, and maintenance.
This practice shall include the location, arrangement, and design
of those tangible objects and features as are incidental and
necessary to the purposes outlined herein. Nothing herein shall
preclude a duly licensed landscape architect from planning the
development of land areas and elements used thereon or from
performing any of the services described in this section in
connection with the settings, approaches, or environment for
buildings, structures, or facilities, in accordance with the accepted
public standards of health, safety, and welfare.
This chapter shall not empower a landscape architect, registered
under this chapter, to practice, or offer to practice, architecture
or engineering in any of its various recognized branches.
SEC. 3. Section 5616 of the Business and Professions Code is
amended to read:
5616. Any certified landscape architect who agrees to provide
professional services pursuant to this chapter shall provide every
customer with a detailed written contract. That written contract
shall include, but not be limited to, all of the following:
(a) A full description of services to be rendered by the landscape
architect.
(b) A list of any consultants who may be utilized under the
contract.
(c) The date of completion of the work to be performed under the
contract.
(d) The total price that is required to complete the contract
which fully discloses one of the following:
(1) The amount of the lump sum of the services.
(2) The hourly fee, not to exceed an expressed amount.
(3) The percentage of the construction costs used in computing the
total price.
(4) Any other method of payment agreed to by both parties.
(e) A notice in prominent type which reads: "LANDSCAPE ARCHITECTS
ARE REGULATED BY THE STATE OF CALIFORNIA. ANY QUESTIONS CONCERNING A
LANDSCAPE ARCHITECT MAY BE REFERRED TO THE LANDSCAPE ARCHITECT
TECHNICAL COMMITTEE AT:
LANDSCAPE ARCHITECTS TECHNICAL COMMITTEE
(CURRENT ADDRESS)
SACRAMENTO, CA. (CURRENT ZIP CODE)
(CURRENT AREA CODE AND TELEPHONE NUMBER)"
(f) The name, address, and certificate number of the landscape
architect.
(g) A description of the procedure that the landscape architect
and client will use to accommodate additional services.
SEC. 4. Section 5620 is added to the Business and Professions
Code, to read:
5620. The duties, powers, purposes, responsibilities, and
jurisdiction of the California State Board of Landscape Architects
that were succeeded to and vested with the Department of Consumer
Affairs in accordance with Chapter 908 of the Statutes of 1994 are
hereby transferred to the California Board of Architectural
Examiners. The Legislature finds that the purpose for the transfer
of power is to promote and enhance the efficiency of state government
and that assumption of the powers and duties by the California Board
of Architectural Examiners shall not be viewed or construed as a
precedent for the establishment of state regulation over a profession
or vocation that was not previously regulated by a board, as defined
in Section 477.
(a) There is in the Department of Consumer Affairs a California
Board of Architectural Examiners as defined in Article 2 (commencing
with Section 5510) of Chapter 3.
Whenever in this chapter "board" is used it refers to the
California Board of Architectural Examiners.
(b) Except as provided herein, the board may delegate its
authority under this chapter to the Landscape Architect Technical
Committee.
(c) After review of proposed regulations, the board may direct the
examining committee to notice and conduct hearings to adopt, amend,
or repeal regulations pursuant to Section 5630, provided that the
board itself shall take final action to adopt, amend, or repeal those
regulations.
(d) The board shall not delegate its authority to discipline a
landscape architect or to take action against a person who has
violated this chapter.
(e) This section shall become inoperative on July 1, 2004, and as
of January 1, 2005, is repealed, unless a later enacted statute, that
becomes operative on or before January 1, 2005, deletes or extends
the date on which it becomes inoperative and is repealed.
SEC. 5. Section 5621 of the Business and Professions Code is
repealed.
SEC. 6. Section 5621 is added to the Business and Professions
Code, to read:
5621. (a) There is hereby created within the jurisdiction of the
board, a Landscape Architect Technical Committee, hereinafter
referred to in this chapter as the landscape architect committee.
(b) The landscape architect committee shall consist of five
members who shall be licensed to practice landscape architecture in
this state. The Governor shall appoint three of the members. The
Senate Committee on Rules and the Speaker of the Assembly shall
appoint one member each.
(c) The initial members to be appointed by the Governor are as
follows: one member for a term of one year; one member for a term of
two years; one member for a term of three years. The Senate
Committee on Rules and the Speaker of the Assembly shall initially
each appoint one member for a term of four years. Thereafter,
appointments shall be made for four-year terms, expiring on June 1 of
the fourth year and until the appointment and qualification of his
or her successor or until one year shall have elapsed whichever first
occurs. Vacancies shall be filled for the unexpired term.
(d) No person shall serve as a member of the landscape architect
committee for more than two consecutive terms.
(e) This section shall become inoperative on July 1, 2004, and as
of January 1, 2005, is repealed, unless a later enacted statute, that
becomes operative on or before January 1, 2005, deletes or extends
the dates on which it becomes inoperative and is repealed.
SEC. 7. Section 5622 of the Business and Professions Code is
repealed.
SEC. 8. Section 5622 is added to the Business and Professions
Code, to read:
5622. (a) The landscape architect committee may assist the board
in the examination of candidates for a landscape architect's license
and, after investigation, evaluate and make recommendations regarding
potential violations of this chapter.
(b) The landscape architect committee may investigate, assist, and
make recommendations to the board regarding the regulation of
landscape architects in this state.
(c) The landscape architect committee may perform such duties and
functions that have been delegated to it by the board pursuant to
Section 5620.
(d) The landscape architect committee shall send a representative
to all meetings of the full board to report on the committee's
activities.
(e) This section shall become inoperative on July 1, 2004, and, as
of January 1, 2005, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2005, deletes or
extends the date on which it becomes inoperative and is repealed.
SEC. 8.5. Section 5623 of the Business and Professions Code is
repealed.
SEC. 9. Section 5624 is added to the Business and Professions
Code, to read:
5624. Each member of the landscape architect committee shall
receive per diem and expenses, as provided in Section 103.
SEC. 9.2. Section 5625 of the Business and Professions Code is
repealed.
SEC. 9.3. Section 5626 of the Business and Professions Code is
amended to read:
5626. The executive officer shall keep an accurate record of all
proceedings of the landscape architect committee.
SEC. 9.4. Section 5627 of the Business and Professions Code is
repealed.
SEC. 9.5. Section 5628 of the Business and Professions Code is
repealed.
SEC. 9.6. Section 5681 of the Business and Professions Code is
amended to read:
5681. The amount of fees prescribed by this chapter is that fixed
by the following schedule:
(a) The application fee for examination shall be fixed by the
board in an amount not to exceed four hundred twenty-five dollars
($425).
(b) The fee for an original certificate shall be fixed by the
board in an amount not to exceed four hundred dollars ($400), except
that, if the certificate is issued less than one year before the date
on which it will expire, then the fee shall equal 50 percent of the
fee fixed by the board for an original certificate. The board may,
by appropriate regulation, provide for the waiver or refund of the
initial certificate fee where the certificate is issued less than 45
days before the date on which it will expire.
(c) The fee for a temporary certificate shall be fixed by the
board in an amount not to exceed one hundred dollars ($100).
(d) The fee for a duplicate certificate shall be fixed by the
board in an amount not to exceed fifty dollars ($50).
(e) The renewal fee shall be fixed by the board in an amount as it
determines is reasonably necessary to provide sufficient funds to
carry out the purpose of this chapter, but not to exceed four hundred
dollars ($400).
(f) The penalty for failure to notify the board of a change of
address within 30 days from an actual change in address shall be
fixed by the board in an amount not to exceed fifty dollars ($50).
(g) The delinquency fee shall be 50 percent of the renewal fee for
the certificate in effect on the date of the renewal of the
certificate, but not less than fifty dollars ($50) nor more than two
hundred dollars ($200).
(h) The fee for a branch office shall be fixed by the board in an
amount not to exceed fifty dollars ($50).
(i) The fee for filing an application for approval of a school
pursuant to Section 5650 shall be set by the board at an amount not
to exceed the cost of the approval process, but not to exceed six
hundred dollars ($600) charged and collected on an biennial basis.
SEC. 9.7. Section 5682 of the Business and Professions Code is
amended to read:
5682. Within 10 days after the beginning of every month, all fees
collected by the department for the month preceding, under the
provisions of this chapter, shall be paid into the State Treasury to
the credit of the California Board of Architectural
Examiners-Landscape Architects Fund, which is hereby created.
SEC. 9.8. Section 5683 of the Business and Professions Code is
amended to read:
5683. The money paid into the California Board of Architectural
Examiners-Landscape Architects Fund is continuously appropriated to
the board for expenditure in the manner prescribed by law to defray
the expenses of the board and in carrying out and enforcing the
provisions of this chapter.
SEC. 10. Section 7200 of the Business and Professions Code is
amended to read:
7200. (a) There is in the Department of Consumer Affairs a State
Board of Guide Dogs for the Blind in whom enforcement of this chapter
is vested. The board shall consist of seven members appointed by
the Governor. One member shall be the Director of Rehabilitation or
his or her designated representative. The remaining members shall be
persons who have shown a particular interest in dealing with the
problems of the blind, and at least two of them shall be blind
persons who use guide dogs.
(b) This section shall become inoperative on July 1, 2002, and, as
of January 1, 2003, is repealed, unless a later enacted statute,
which becomes effective on or before January 1, 2003, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 11. Section 7616 of the Business and Professions Code is
amended to read:
7616. (a) A licensed funeral establishment is a place of business
conducted in a building or separate portion of a building having a
specific street address or location and devoted exclusively to those
activities as are incident, convenient, or related to the preparation
and arrangements, financial and otherwise, for the funeral,
transportation, burial or other disposition of human remains and
including, but not limited to, either of the following:
(1) A suitable room for the storage of human remains.
(2) A preparation room equipped with a sanitary flooring and
necessary drainage and ventilation and containing necessary
instruments and supplies for the preparation, sanitation, or
embalming of human remains for burial or transportation.
(b) Licensed funeral establishments under common ownership or by
contractual agreement within close geographical proximity of each
other shall be deemed to be in compliance with the requirements of
paragraph (1) or (2) of subdivision (a) if at least one of the
establishments has a room described in those paragraphs.
(c) Except as provided in Section 7609, and except accredited
embalming schools and colleges engaged in teaching students the art
of embalming, no person shall operate or maintain or hold himself or
herself out as operating or maintaining any of the facilities
specified in paragraph (2) of subdivision (a), unless he or she is
licensed as a funeral director.
(d) Nothing in this section shall be construed to require a
funeral establishment to conduct its business or financial
transactions at the same location as its preparation or storage of
human remains.
(e) Nothing in this chapter shall be deemed to render unlawful the
conduct of any ambulance service from the same premises as those on
which a licensed funeral establishment is conducted, including the
maintenance in connection with the funeral establishment of garages
for the ambulances and living quarters for ambulance drivers.
(f) Every funeral establishment holding a funeral director's
license on December 31, 1996, shall, upon application and payment of
fees for renewal of its funeral director's license, be issued a
funeral establishment license.
SEC. 12. Section 7635 of the Business and Professions Code is
amended to read:
7635. (a) Any person employed by, or an agent of, a licensed
funeral establishment, who consults with the family or
representatives of a family of a deceased person for the purpose of
arranging for services as set forth in subdivision (a) of Section
7615, shall receive documented training and instruction which results
in a demonstrated knowledge of all applicable federal and state
laws, rules, and regulations including those provisions dealing with
vital statistics, the coroner, anatomical gifts, and other laws,
rules, and regulations pertaining to the duties of a funeral
director. A written outline of the training program, including
documented evidence of the training time, place, and participants,
shall be maintained in the funeral establishment and shall be
available for inspection and comment by an inspector of the board.
(b) This section shall not apply to anyone who has successfully
passed the funeral director's examination pursuant to Section 7622.
SEC. 13. Section 8010 of the Business and Professions Code is
amended to read:
8010. Information regarding a complaint against a specific
licensee may not be disclosed to the public until an accusation has
been filed by the board and the licensee has been notified of the
filing of the accusation against his or her license and the
disciplinary proceedings to be conducted in accordance with Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2
of the Government Code. This section does not apply to citations,
fines, or orders of abatement, which shall be disclosed to the public
upon notice to the licensee.
SEC. 14. Section 8017 of the Business and Professions Code is
amended to read:
8017. The practice of shorthand reporting is defined as the
making, by means of written symbols or abbreviations in shorthand or
machine shorthand writing, of a verbatim record of any oral court
proceeding, deposition, or proceeding before any grand jury, referee,
or court commissioner and the accurate transcription thereof.
SEC. 15. Section 8018 of the Business and Professions Code is
amended to read:
8018. Any natural person holding a valid certificate as a
shorthand reporter, as provided in this chapter, shall be known as a
"certified shorthand reporter." Except as provided in Section 8043,
no other person, firm, or corporation may assume or use the title
"certified shorthand reporter," or the abbreviation "C.S.R.," or use
any words or symbols indicating or tending to indicate that he, she,
or it is certified under this chapter.
SEC. 16. Section 8024.5 of the Business and Professions Code is
amended to read:
8024.5. A certificate that is not renewed within three years
after its expiration may not be renewed, restored, reinstated, or
reissued thereafter. The holder of the certificate shall return the
expired certificate to the board. To obtain a new certificate, the
holder shall pay all of the fees and meet all of the qualifications
and requirements set forth in this chapter for obtaining an original
certificate, including qualifying for, taking, and passing the
licensing examination.
SEC. 17. Section 8024.6 of the Business and Professions Code is
amended to read:
8024.6. (a) A certificate holder shall give written notice to the
board at its office in Sacramento of a name change within 30 days
after each change, giving both the old and the new names. A copy of
the legal document affecting the name change, such as a court order
or marriage certificate, shall be submitted with the notice.
(b) Each certificate holder shall notify the board in writing at
its office in Sacramento of a change of address within 30 days after
each change, giving both the old and the new addresses.
(c) A penalty as provided in this chapter shall be paid by each
certificate holder who fails to notify the board within 30 days as
specified in this section.
SEC. 18. Section 8025 of the Business and Professions Code is
amended to read:
8025. A certificate issued under this chapter may be suspended or
revoked, or certification may be denied, for one or more of the
following causes:
(a) Conviction of a crime substantially related to the
qualifications, functions, and duties of a certified shorthand
reporter. The record of conviction, or a certified copy thereof, is
conclusive evidence of the conviction.
(b) Failure to notify the board of a conviction described in
subdivision (a), in accordance with Section 8024 or 8024.2.
(c) Fraud or misrepresentation resorted to in obtaining a
certificate hereunder.
(d) Fraud, dishonesty, corruption, willful violation of duty,
gross negligence or incompetency in practice, or unprofessional
conduct in the practice of shorthand reporting.
"Unprofessional conduct" includes, but is not limited to, acts
contrary to professional standards concerning confidentiality;
impartiality; filing and retention of notes; notifications,
availability, delivery, execution and certification of transcripts;
and any provision of law substantially related to the duties of a
certified shorthand reporter.
(e) Repeated unexcused failure, whether or not willful, to
transcribe notes of cases pending on appeal and to file the
transcripts of those notes within the time required by law or to
transcribe or file notes of other proceedings within the time
required by law or agreed by contract. Violation of this subdivision
shall also be deemed an act endangering the public health, safety,
or welfare within the meaning of Section 494.
(f) Loss or destruction of stenographic notes, whether on paper or
electronic media, which prevents the production of a transcript due
to negligence of the licensee.
(g) Failure to comply with, or to pay a monetary sanction imposed
by, any court for failure to provide timely transcripts.
(h) Violation of this chapter or the statutes, rules, and
regulations pertaining to certified shorthand reporters.
SEC. 19. Section 8030.2 of the Business and Professions Code is
amended to read:
8030.2. (a) To provide shorthand reporting services to low-income
litigants in civil cases, who are unable to otherwise afford those
services, funds generated by fees received by the board pursuant to
subdivision (c) of Section 8031 in excess of funds needed to support
the board's operating budget for the fiscal year in which a transfer
described below is made shall be used by the board for the purpose of
establishing and maintaining a Transcript Reimbursement Fund. The
Transcript Reimbursement Fund shall be established by a transfer of
funds from the Court Reporters' Fund and shall be maintained in an
amount no less than three hundred thousand dollars ($300,000) for
each fiscal year.
(b) All moneys held in the Court Reporters' Fund on the effective
date of this section in excess of the board's operating budget for
the 1996-97 fiscal year shall be used as provided in subdivision (a).
(c) Refunds and unexpended funds that are anticipated to remain in
the Transcript Reimbursement Fund at the end of the fiscal year
shall be considered by the board in establishing the fee assessment
pursuant to Section 8031 so that the assessment shall maintain the
Transcript Reimbursement Fund at the appropriate level in the
following fiscal year.
(d) The Transcript Reimbursement Fund is hereby created in the
State Treasury. Notwithstanding Section 13340 of the Government
Code, moneys in the Transcript Reimbursement Fund are continuously
appropriated for the purposes of this chapter.
(e) Applicants who have been reimbursed pursuant to this chapter
for services provided to litigants and who are awarded court costs or
attorneys' fees by judgment or by settlement agreement, shall refund
the full amount of that reimbursement to the fund within 90 days of
receipt of the award or settlement.
(f) Subject to the limitations of this chapter, the board shall
maintain the fund at a level that is sufficient to pay all qualified
claims. To accomplish this objective, the board shall utilize all
refunds, unexpended funds, fees, and any other moneys received by the
board.
(g) Notwithstanding Section 16346 of the Government Code, all
unencumbered funds remaining in the Transcript Reimbursement Fund as
of June 29, 1999, shall be transferred to the Court Reporters' Fund.
This section shall become inoperative on July 1, 1999, and, as of
January 1, 2000, is repealed, unless a later enacted statute, that
becomes operative on or before January 1, 2000, deletes or extends
the dates on which it becomes inoperative and is repealed.
SEC. 20. Section 8030.4 of the Business and Professions Code is
amended to read:
8030.4. As used in this chapter:
(a) "Qualified legal services project" means a nonprofit project
incorporated and operated exclusively in California that provides as
its primary purpose and function legal services without charge to
indigent persons, has a board of directors or advisory board composed
of both attorneys and consumers of legal services, and provides for
community participation in legal services programming. Legal
services projects funded either in whole or in part by the Legal
Services Corporation or with Older Americans Act funds are presumed
to be qualified legal services projects for the purposes of this
chapter.
(b) "Qualified support center" means an incorporated nonprofit
legal services center, having an office or offices in California,
which office or offices provide legal services or technical
assistance without charge to qualified legal services projects and
their clients on a multicounty basis in California. Support centers
funded either in whole or in part by the Legal Services Corporation
or with Older Americans Act funds are presumed to be qualified legal
services projects for the purposes of this chapter.
(c) "Other qualified project" means a nonprofit organization
formed for charitable or other public purposes, not receiving funds
from the Legal Services Corporation or pursuant to the Older
Americans Act, which organization or association provides free legal
services to indigent persons.
(d) "Pro bono attorney" means any attorney, law firm, or legal
corporation, licensed to practice law in this state, which undertakes
without charge to the party the representation of an indigent
person, referred by a qualified legal services project, qualified
support center, or other qualified project, in a case not considered
to be fee generating as defined in this chapter.
(e) "Applicant" means a qualified legal services project,
qualified support center, other qualified project, or pro bono
attorney applying to receive funds from the Transcript Reimbursement
Fund established by this chapter. The term "applicant" shall not
include persons appearing pro se to represent themselves at any stage
of the case.
(f) "Indigent person" means either a person whose income is 125
percent or less of the current poverty threshold established by the
Office of Management and Budget of the United States, a disabled
person whose income after meeting medical and other
disability-related special expenses is 125 percent or less of that
current poverty threshold, or a person who receives or is eligible to
receive supplemental security income.
(g) "Fee-generating case" means any case or matter which, if
undertaken on behalf of an eligible client by an attorney in private
practice, reasonably may be expected to result in payment of a fee
for legal services from an award to a client, from public funds, or
from an opposing party. A reasonable expectation as to payment of a
legal fee exists wherever a client enters into a contingent fee
agreement with his or her lawyer. If there is no contingent fee
agreement, a case is not considered fee generating if adequate
representation is deemed to be unavailable because of the occurrence
of any of the following circumstances:
(1) Where the applicant has determined that referral is not
possible because of any of the following:
(A) The case has been rejected by the local lawyer referral
service, or if there is no such service, by two private attorneys who
have experience in the subject matter of the case.
(B) Neither the referral service nor any lawyer will consider the
case without payment of a consultation fee.
(C) The case is of the type that private attorneys in the area
ordinarily do not accept, or do not accept without prepayment of a
fee.
(D) Emergency circumstances compel immediate action before
referral can be made, but the client is advised that, if appropriate
and consistent with professional responsibility, referral will be
attempted at a later time.
(2) Where recovery of damages is not the principal object of the
case and a request for damages is merely ancillary to an action for
equitable or other nonpecuniary relief; or inclusion of a
counterclaim requesting damages is necessary for effective defense or
because of applicable rules governing joinder of counterclaims.
(3) Where a court appoints an applicant or an employee of an
applicant pursuant to a statute or a court rule or practice of equal
applicability to all attorneys in the jurisdiction.
(4) In any case involving the rights of a claimant under a public
supported benefit program for which entitlement to benefit is based
on need.
(h) "Legal Services Corporation" means the Legal Services
Corporation established under the Legal Services Corporation Act of
1974, Public Law 93-355, as amended.
(i) "Supplemental security income recipient" means an individual
receiving or eligible to receive payments under Title XVI of the
Social Security Act, Public Law 92-603, as amended, or payment under
Chapter 3 (commencing with Section 12000) of Part 3 of Division 9 of
the Welfare and Institutions Code.
(j) "Lawyer referral service" means a lawyer referral program
authorized by the State Bar of California pursuant to the rules of
professional conduct.
(k) "Older Americans Act" means the Older Americans Act of 1965,
Public Law 89-73, as amended.
(l) "Rules of professional conduct" means those rules adopted by
the State Bar pursuant to Sections 6076 and 6077.
(m) "Certified shorthand reporter" means a shorthand reporter
certified pursuant to Article 3 (commencing with Section 8020)
performing shorthand reporting services pursuant to Section 8017.
(n) "Case" means a single legal proceeding from its inception,
through all levels of hearing, trial, and appeal, until its ultimate
conclusion and disposition.
This section shall become inoperative on July 1, 1999, and, as of
January 1, 2000, is repealed, unless a later enacted statute, that
becomes operative on or before January 1, 2000, deletes or extends
the dates on which it becomes inoperative and is repealed.
SEC. 21. Section 8030.6 of the Business and Professions Code is
amended to read:
8030.6. The board shall disburse funds from the Transcript
Reimbursement Fund for the costs, exclusive of per diem charges, of
preparing either an original transcript and one copy thereof, or
where appropriate, a copy of the transcript, of court or deposition
proceedings, or both, incurred as a contractual obligation between
the shorthand reporter and the applicant, for litigation conducted in
California. If no deposition transcript is ordered, the board may
reimburse the applicant or the certified shorthand reporter
designated in the application for per diem costs. The rate of per
diem for depositions shall not exceed seventy-five dollars ($75) for
a half day, or one hundred twenty-five dollars ($125) for a full day.
In the event that a transcript is ordered within one year of the
date of the deposition, but subsequent to the per diem having been
reimbursed by the Transcript Reimbursement Fund, the amount of the
per diem shall be deducted from the amount of transcript.
Reimbursement may be obtained through the following procedures:
(a) The applicant or certified shorthand reporter shall promptly
submit to the board the certified shorthand reporter's invoice for
transcripts together with the appropriate documentation as is
required by this chapter.
(b) Except as provided in subdivision (c), the board shall
promptly determine if the applicant or the certified shorthand
reporter is entitled to reimbursement under this chapter and shall
make payment as follows:
(1) Regular customary charges for preparation of original
deposition transcripts and one copy thereof, or a copy of the
transcripts.
(2) Regular customary charges for expedited deposition transcripts
up to a maximum of two thousand five hundred dollars ($2,500) per
case.
(3) Regular customary charges for the preparation of original
transcripts and one copy thereof, or a copy of transcripts of court
proceedings.
(4) Regular customary charges for expedited or daily charges for
preparation of original transcripts and one copy thereof or a copy of
transcripts of court proceedings.
(5) The charges may not include notary or handling fees. The
charges may include actual shipping costs and exhibits, except that
the cost of exhibits may not exceed thirty-five cents ($0.35) each or
a total of thirty-five dollars ($35) per transcript.
(c) The maximum amount reimbursable by the fund under subdivision
(b) may not exceed twenty thousand dollars ($20,000) per case per
year.
(d) If entitled, and funds are available, the board shall
forthwith disburse the appropriate sum to the applicant or the
certified shorthand reporter when documentation as provided in
subdivision (d) of Section 8030.8 accompanies the application. A
notice shall be sent to the recipient requiring the recipient to file
a notice with the court in which the action is pending stating the
sum of reimbursement paid pursuant to this section. The notice filed
with the court shall also state that if the sum is subsequently
included in any award of costs made in the action, that the sum is to
be ordered refunded by the applicant to the Transcript Reimbursement
Fund whenever the sum is actually recovered as costs. The court may
not consider whether payment has been made from the Transcript
Reimbursement Fund in determining the appropriateness of any award of
costs to the parties. The board shall also forthwith notify the
applicant that the reimbursed sum has been paid to the certified
shorthand reporter and shall likewise notify the applicant of the
duty to refund any of the sum actually recovered as costs in the
action.
(e) If not entitled, the board shall forthwith return a copy of
the invoice to the applicant and the designated certified shorthand
reporter together with a notice stating the grounds for denial.
(f) The board shall complete its actions under this subdivision
within 30 days of receipt of the invoice and all required
documentation, including a completed application.
(g) Applications for reimbursements from the fund shall be filled
on a first-come basis.
(h) Applications for reimbursement that cannot be paid from the
fund due to insufficiency of the fund for that fiscal year shall be
held over until the next fiscal year to be paid out of the renewed
fund.
This section shall become inoperative on July 1, 1999, and, as of
January 1, 2000, is repealed, unless a later enacted statute, that
becomes operative on or before January 1, 2000, deletes or extends
the dates on which it becomes inoperative and is repealed.
SEC. 22. Section 8030.8 of the Business and Professions Code is
amended to read:
8030.8. (a) For purposes of this chapter, documentation
accompanying an invoice is sufficient to establish entitlement for
reimbursement from the Transcript Reimbursement Fund if it is filed
with the executive officer on an application form prescribed by the
board that is complete in all respects, and that establishes all of
the following:
(1) The case name and number and that the litigant or litigants
requesting the reimbursement are indigent persons.
(2) The applicant is qualified under the provisions of this
chapter.
(3) The case is not a fee-generating case, as defined in Section
8030.4.
(4) The invoice or other documentation shall evidence that the
certified shorthand reporter to be reimbursed was, at the time the
services were rendered, a duly licensed certified shorthand reporter.
(5) The invoice shall be accompanied by a statement, signed by the
applicant, stating that the charges are for transcripts actually
provided as indicated on the invoice.
(6) The applicant has acknowledged, in writing, that as a
condition of entitlement for reimbursement that the applicant agrees
to refund the entire amount disbursed from the Transcript
Reimbursement Fund from any costs or attorneys' fees awarded to the
applicant by the court or provided for in any settlement agreement in
the case.
(7) The certified shorthand reporter's invoice for transcripts
shall include separate itemizations of charges claimed, as follows:
(A) Total charges and rates for customary services in preparation
of an original transcript and one copy or a copy of the transcript of
depositions.
(B) Total charges and rates for expedited deposition transcripts.
(C) Total charges and rates in connection with transcription of
court proceedings.
(b) For an applicant claiming to be eligible pursuant to
subdivision (a), (b), or (c) of Section 8030.4, a letter from the
director of the project or center, certifying that the project or
center meets the standards set forth in one of those subdivisions and
that the litigant or litigants are indigent persons, is sufficient
documentation to establish eligibility.
(c) For an applicant claiming to be eligible pursuant to
subdivision (d) of Section 8030.4, a letter certifying that the
applicant meets the requirements of that subdivision, that the case
is not a fee-generating case, as defined in subdivision (g) of
Section 8030.4, and that the litigant or litigants are indigent
persons, together with a letter from the director of a project or
center defined in subdivision (a), (b), or (c) of Section 8030.4
certifying that the litigant or litigants had been referred by that
project or center to the applicant, is sufficient documentation to
establish eligibility.
(d) The applicant may receive reimbursement directly from the
board when the applicant has previously paid the certified shorthand
reporter for transcripts as provided in Section 8030.6. To receive
payment directly, the applicant shall submit, in addition to all
other required documentation, an itemized statement signed by the
certified shorthand reporter performing the services that describes
payment for transcripts in accordance with the requirements of
Section 8030.6.
(e) The board may prescribe appropriate forms to be used by
applicants and certified reporters to facilitate these requirements.
(f) This chapter does not restrict the contractual obligation or
payment for services, including, but not limited to, billing the
applicant directly, during the pendency of the claim.
This section shall become inoperative on July 1, 1999, and, as of
January 1, 2000, is repealed, unless a later enacted statute, that
becomes operative on or before January 1, 2000, deletes or extends
the dates on which it becomes inoperative and is repealed.
SEC. 23. Section 7100 of the Health and Safety Code is amended to
read:
7100. (a) The right to control the disposition of the remains of
a deceased person, and to arrange for funeral goods and services to
be provided, unless other directions have been given by the decedent
pursuant to Section 7100.1, vests in, and the duty of interment and
the liability for the reasonable cost of interment of the remains
devolves upon the following in the order named:
(1) The surviving spouse.
(2) The sole surviving adult child of the decedent, or if there is
more than one adult child of the decedent, the majority of the
surviving adult children. However, less than the majority shall be
vested with the rights and duties of this section if they have used
reasonable efforts to notify all other surviving adult children of
their instructions and are not aware of any opposition to those
instructions on the part of one-half or more of all surviving adult
children. For purposes of this section, "adult child" means a
competent natural or adopted child of the decedent who has attained
18 years of age.
(3) The surviving parent or parents of the decedent. If one of
the surviving parents is absent, the remaining parent shall be vested
with the rights and duties of this section after reasonable efforts
have been unsuccessful in locating the absent surviving parent.
(4) The surviving person or persons respectively in the next
degrees of kindred. If there is more than one surviving person of
the same degree of kindred, the majority of those persons. Less than
the majority of surviving persons of the same degree of kindred
shall be vested with the rights and duties of this section if those
persons have used reasonable efforts to notify all other surviving
persons of the same degree of kindred of their instructions and are
not aware of any opposition to those instructions on the part of
one-half or more of all surviving persons of the same degree of
kindred.
(5) The public administrator when the deceased has sufficient
assets.
(b) A funeral director or cemetery authority shall have complete
authority to control the disposition of the remains, and to proceed
under this chapter to recover usual and customary charges for the
disposition, when both of the following apply:
(1) Either of the following applies:
(A) The funeral director or cemetery authority has knowledge that
none of the persons described in paragraphs (1) to (4) of subdivision
(a) exists.
(B) None of the persons described in paragraphs (1) to (4) of
subdivision (a) can be found after reasonable inquiry, or contacted
by reasonable means.
(2) The public administrator fails to assume responsibility for
disposition of the remains within seven days after having been given
written notice of the facts. Written notice may be delivered by
hand, U.S. mail, facsimile transmission, or telegraph.
(c) The liability for the reasonable cost of final disposition
devolves jointly and severally upon all kin of the decedent in the
same degree of kindred and upon the estate of the decedent; provided,
that should a person accept the gift of an entire body under
subdivision (a) of Section 7155.5, that person, subject to the terms
of the gift, shall be liable for the reasonable cost of final
disposition of the decedent.
(d) This section shall be administered and construed to the end
that the expressed instructions of the decedent or the person
entitled to control the disposition shall be faithfully and promptly
performed.
(e) A funeral director or cemetery authority shall not be liable
to any person or persons for carrying out the instructions of the
decedent or the person entitled to control the disposition.
SEC. 24. Section 7100.1 is added to the Health and Safety Code, to
read:
7100.1. (a) A decedent, prior to death, may direct, in writing,
the disposition of his or her remains and specify funeral goods and
services to be provided. Unless there is a statement to the contrary
that is signed and dated by the decedent, the directions may not be
altered, changed, or otherwise amended in any material way, except as
may be required by law, and shall be faithfully carried out upon his
or her death, provided both of the following requirements are met:
(1) the directions set forth clearly and completely the final wishes
of the decedent in sufficient detail so as to preclude any material
ambiguity with regard to the instructions; and, (2) the cost of the
disposition and the funeral goods and services to be provided are
held in trust pursuant to Section 7735 of the Business and
Professions Code, funded through insurance, or otherwise set aside in
a fund or funds designated for that purpose, so as to preclude the
payment of any funds by the survivor or survivors of the deceased
that might otherwise retain the right to control the disposition and
arrange for funeral goods and services to be provided.
(b) In the event only one of either the cost of disposition or the
cost of the funeral goods and services are set aside pursuant to
this section, the remaining wishes of the decedent shall be carried
out only to the extent that the decedent has sufficient assets to do
so, unless the person or persons that otherwise have the right to
control the disposition and arrange for funeral goods and services
agree to assume the cost. All other provisions of the directions
shall be carried out.
(c) If the directions are contained in a will, they shall be
immediately carried out, regardless of the validity of the will in
other respects or of the fact that the will may not be offered for or
admitted to probate until a later date.
SEC. 25. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.