BILL NUMBER: AB 2803 CHAPTERED
BILL TEXT
CHAPTER 485
FILED WITH SECRETARY OF STATE SEPTEMBER 14, 1998
APPROVED BY GOVERNOR SEPTEMBER 13, 1998
PASSED THE ASSEMBLY AUGUST 18, 1998
PASSED THE SENATE AUGUST 13, 1998
AMENDED IN SENATE AUGUST 6, 1998
AMENDED IN SENATE JULY 8, 1998
AMENDED IN SENATE JUNE 11, 1998
INTRODUCED BY Committee on Judiciary (Escutia (Chair), Alby,
Aroner, Baugh, Figueroa, Hertzberg, Keeley, Kuehl, Morrow, Ortiz, and
Pacheco)
MARCH 12, 1998
An act to amend Sections 4840, 5040, 5051, 5681, 6009.3, 7507.10,
10085.5, 10133.1, 10133.15, 10133.5, 10145, 10165, 10231, 10231.2,
10232, 10232.1, 10232.4, 10236, 10236.2, 11000.1, 11010.2, 11010.4,
11018.3, 11018.12, 17505.2, 17538, 17762, 19556, 19846A, 19847A,
19942, 22252.5, 23817.5, 24045.14, 24045.15, and 25503.30 of, and to
repeal Section 10223 of, the Business and Professions Code, to amend
Sections 1714.45 and 2924c of, and to amend and renumber Section
3333.4 of, the Civil Code, to amend Sections 14312, 15052, and 16956
of the Corporations Code, to amend Sections 11301, 17016, 17203.5,
17591, 19116, 27405, 44279.7, 44306, 44308, 44759.4, 52122, 52122.1,
52124, 52181, 52183, 60640, 69621, 69629, and 89010 of, and to amend
and renumber Section 17883 of, the Education Code, to amend Sections
3030, 4901, 7552, 7571, 7572, and 7575 of the Family Code, to amend
Sections 1505, 13081, and 22050 of the Financial Code, to amend
Sections 1348.2, 2052.1, 4600, and 7151 of, and to repeal Section
4606 of, the Fish and Game Code, to amend Section 12803 of, to repeal
the heading of Article 2 (commencing with Section 11241) of Chapter
2 of Part 4 of Division 5 of, to repeal the headings of Chapter 4
(commencing with Section 16701) and Chapter 5 (commencing with
Section 16801) of Part 1 of Division 9 of, and to repeal the heading
of Article 5 (commencing with Section 39461) of Chapter 8 of Part 3
of Division 15 of, the Food and Agricultural Code, to amend Sections
6254, 12940, 15814.26, 15814.27, 21290, 22825.5, 51017.1, 53125,
54902.5, 73759, 75050, and 95022 of, to amend and renumber the
heading of Chapter 2.1 (commencing with Section 68650) of Title 8 of,
to amend and renumber Sections 68650, 68651, 68652, 68653, 68654,
68655, and 68656 of, to repeal Section 29550.2 of, and to repeal
Chapter 12.8 (commencing with Section 7070) of Division 7 of Title 1
of, the Government Code, to repeal Section 651 of the Harbors and
Navigation Code, to amend Sections 1206, 1357.52, 1746, 44056, 44401,
102425, and 111940 of, to amend and renumber Sections 40928 and
40929 of, and to amend and renumber the heading of Article 1.5
(commencing with Section 42320) of Chapter 4 of Part 4 of, the Health
and Safety Code, to amend Sections 1760.5, 10273.4, 10700, 10841,
and 14029 of the Insurance Code, to amend Sections 1295.5, 1776,
1813, 3710.3, 4064, 4600.3, and 5433 of the Labor Code, to amend
Section 1011 of the Military and Veterans Code, to amend Sections
290, 290.4, 629.82, 830.3, 1054.2, 1203.1d, 11167.5, and 13764 of the
Penal Code, to amend Section 22050 of the Public Contract Code, to
amend Sections 6353 and 130051.18 of the Public Utilities Code, to
amend Sections 69.5, 95.31, 97.3, 619, 3772.5, 7273, 7284.6, 7284.7,
17053.5, 18804, 18872, 19141.6, 19271, 19533, and 41136 of, and to
amend and renumber Section 19721.6 of, the Revenue and Taxation Code,
to amend Section 1088.7 of the Unemployment Insurance Code, to amend
Sections 12514, 12523.6, and 14602.7 of the Vehicle Code, to amend
Sections 1811 and 13274 of the Water Code, to amend Sections 827.6
and 11478.2 of the Welfare and Institutions Code, and to amend
Section 3 of Chapter 708 of the Statutes of 1997, relating to
maintenance of the codes.
LEGISLATIVE COUNSEL'S DIGEST
AB 2803, Committee on Judiciary. Maintenance of the codes.
Existing law directs the Legislative Counsel to advise the
Legislature from time to time as to legislation necessary to maintain
the codes.
This bill would restate existing provisions of law to effectuate
the recommendations made by the Legislative Counsel to the
Legislature for consideration during 1998, and would not make any
substantive change in the law.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4840 of the Business and Professions Code is
amended to read:
4840. (a) Registered veterinary technicians and unregistered
assistants are approved to perform those animal health care services
prescribed by law under the supervision of a veterinarian licensed or
authorized to practice in this state.
(b) Registered veterinary technicians may perform animal health
care services on those animals impounded by a state, county, city, or
city and county agency pursuant to the direct order, written order,
or telephonic order of a veterinarian licensed or authorized to
practice in this state.
(c) Registered veterinary technicians may apply for registration
from the federal Drug Enforcement Administration that authorizes the
direct purchase of sodium pentobarbital for the performance of
euthanasia as provided for in subdivision (d) of Section 4827 without
the supervision or authorization of a licensed veterinarian.
SEC. 2. Section 5040 of the Business and Professions Code is
amended to read:
5040. The Legislature finds and declares that it is important to
inform taxpayers that they may make voluntary contributions to
certain funds or programs, as provided on the state income tax
return. The Legislature further finds and declares that many
taxpayers remain unaware of the voluntary contribution check-offs on
the state income tax return. Therefore, it is the intent of the
Legislature to encourage all persons who prepare state income tax
returns, including accountants, to inform their clients in writing,
prior to the completion of any state income tax return, that they may
make a contribution to any voluntary contribution check-off on the
state income tax return if they so choose.
SEC. 3. Section 5051 of the Business and Professions Code is
amended to read:
5051. Except as provided in Sections 5052 and 5053, a person
shall be deemed to be engaged in the practice of public accountancy
within the meaning and intent of this chapter if he or she does any
of the following:
(a) Holds himself or herself out to the public in any manner as
one skilled in the knowledge, science, and practice of accounting,
and as qualified and ready to render professional service therein as
a public accountant for compensation.
(b) Maintains an office for the transaction of business as a
public accountant.
(c) Offers to prospective clients to perform for compensation, or
who does perform on behalf of clients for compensation, professional
services that involve or require an audit, examination, verification,
investigation, certification, presentation, or review of financial
transactions and accounting records.
(d) Prepares or certifies for clients reports on audits or
examinations of books or records of account, balance sheets, and
other financial, accounting and related schedules, exhibits,
statements, or reports that are to be used for publication, for the
purpose of obtaining credit, for filing with a court of law or with
any governmental agency, or for any other purpose.
(e) In general or as an incident to that work, renders
professional services to clients for compensation in any or all
matters relating to accounting procedure and to the recording,
presentation, or certification of financial information or data.
(f) Keeps books, makes trial balances, or prepares statements,
makes audits, or prepares reports, all as a part of bookkeeping
operations for clients.
(g) Prepares or signs, as the tax preparer, tax returns for
clients.
(h) Prepares personal financial or investment plans or provides to
clients products or services of others in implementation of personal
financial or investment plans.
(i) Provides management consulting services to clients.
The activities set forth in subdivisions (f) to (i), inclusive,
are "public accountancy" only when performed by a certified public
accountant or public accountant, as defined in this chapter.
A person is not engaged in the practice of public accountancy if
the only services he or she engages in are those defined by
subdivisions (f) to (i), inclusive, and he or she does not hold
himself or herself out, solicit, or advertise for clients using the
certified public accountant or public accountant designation. A
person is not holding himself or herself out, soliciting, or
advertising for clients within the meaning of this section solely by
reason of displaying a CPA or PA certificate in his or her office or
identifying himself or herself as a CPA or PA on other than signs,
advertisements, letterhead, business cards, publications directed to
clients or potential clients, or financial or tax documents of a
client.
SEC. 4. 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 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 or six hundred dollars
($600) charged and collected on a biennial basis, whichever is less.
SEC. 5. Section 6009.3 of the Business and Professions Code is
amended to read:
6009.3. The Legislature finds and declares that it is important
to inform taxpayers that they may make voluntary contributions to
certain funds or programs, as provided on the state income tax
return. The Legislature further finds and declares that many
taxpayers remain unaware of the voluntary contribution check-offs on
the state income tax return. Therefore, it is the intent of the
Legislature to encourage all persons who prepare state income tax
returns, including attorneys, to inform their clients in writing,
prior to the completion of any state income tax return, that they may
make a contribution to any voluntary contribution check-off on the
state income tax return if they so choose.
SEC. 6. Section 7507.10 of the Business and Professions Code is
amended to read:
7507.10. Each licensee shall serve a debtor with a notice of
seizure as soon as possible after the recovery of collateral and not
later than 48 hours, except that if the 48-hour period encompasses a
Saturday, Sunday, or postal holiday, the notice of seizure shall be
provided not later than 72 hours or, if the 48-hour period
encompasses a Saturday or Sunday and a postal holiday, the notice of
seizure shall be provided not later than 96 hours, after the
repossession of collateral. The notice shall include all of the
following:
(a) The name, address, and telephone number of the representative
of the legal owner to be contacted regarding the repossession.
(b) The name, address, and telephone number of the representative
of the repossession agency to be contacted regarding the
repossession.
(c) A statement printed on the notice containing the following:
"Repossessors are regulated by the Bureau of Security and
Investigative Services, Department of Consumer Affairs, Sacramento,
CA 95814. Repossessors are required to provide you, not later than
48 hours after the recovery of collateral, with an inventory of
personal effects or other personal property recovered during
repossession unless the 48-hour period encompasses a Saturday,
Sunday, or a postal holiday, then the inventory shall be provided no
later than 96 hours after the recovery of collateral."
(d) A disclosure that "Damage to a vehicle during or subsequent to
a repossession and only while the vehicle is in possession of the
repossession agency and which is caused by the repossession agency is
the liability of the repossession agency. A mechanical or tire
failure shall not be the responsibility of the repossession agency
unless the failure is due to the negligence of the repossession
agency."
(e) If applicable, a disclosure that "Environmental, Olympic,
special interest, or other license plates issued pursuant to Article
8 (commencing with Section 5000), Article 8.4 (commencing with
Section 5060) or Article 8.5 (commencing with Section 5100) of
Chapter 1 of Division 3 of the Vehicle Code that remain the personal
effects of the debtor will be removed from the collateral and
inventoried, and that if the plates are not claimed by the debtor
within 60 days, they will be destroyed."
The notice may be given by regular mail addressed to the last
known address of the debtor or by personal service at the option of
the repossession agency.
SEC. 7. Section 10085.5 of the Business and Professions Code is
amended to read:
10085.5. (a) It shall be unlawful for any person to claim,
demand, charge, receive, collect, or contract for an advance fee (1)
for soliciting lenders on behalf of borrowers or performing services
for borrowers in connection with loans to be secured directly or
collaterally by a lien on real property, before the borrower becomes
obligated to complete the loan or, (2) for performing any other
activities for which a license is required, unless the person is a
licensed real estate broker and has complied with the provisions of
this part.
(b) This section does not prohibit the acceptance or receipt of an
advance fee by any bank, savings association, credit union,
industrial loan company, or person acting within the scope of a
license issued to that person pursuant to Division 9 (commencing with
Section 22000) of the Financial Code, in connection with loans to be
secured directly or collaterally by a lien on real property. This
section does not apply to charges made by title insurers and
controlled escrow companies pursuant to Chapter 1 (commencing with
Section 12340) of Part 6 of Division 2 of the Insurance Code.
(c) A violation of this section is a public offense punishable by
a fine not exceeding ten thousand dollars ($10,000), by imprisonment
in the county jail for a term not to exceed six months, or by both
that fine and imprisonment, or if by a corporation, the violation is
punishable by a fine not exceeding fifty thousand dollars ($50,000).
SEC. 8. Section 10133.1 of the Business and Professions Code is
amended to read:
10133.1. (a) Subdivisions (d) and (e) of Section 10131, Section
10131.1, Article 5 (commencing with Section 10230), and Article 7
(commencing with Section 10240) of this code and Section 1695.13 of
the Civil Code do not apply to any of the following:
(1) Any person or employee thereof doing business under any law of
this state, any other state, or the United States relating to banks,
trust companies, savings and loan associations, industrial loan
companies, pension trusts, credit unions, or insurance companies.
(2) Any nonprofit cooperative association organized under Chapter
1 (commencing with Section 54001) of Division 20 of the Food and
Agricultural Code, in loaning or advancing money in connection with
any activity mentioned therein.
(3) Any corporation, association, syndicate, joint stock company,
or partnership engaged exclusively in the business of marketing
agricultural, horticultural, viticultural, dairy, livestock, poultry,
or bee products on a cooperative nonprofit basis, in loaning or
advancing money to the members thereof or in connection with any
business of that type.
(4) Any corporation securing money or credit from any federal
intermediate credit bank organized and existing pursuant to the
provisions of an act of Congress entitled the "Agricultural Credits
Act of 1923," in loaning or advancing money or credit so secured.
(5) Any person licensed to practice law in this state, not
actively and principally engaged in the business of negotiating loans
secured by real property, when that person renders services in the
course of his or her practice as an attorney at law, and the
disbursements of that person, whether paid by the borrower or other
person, are not charges or costs and expenses regulated by or subject
to the limitations of Article 7 (commencing with Section 10240), and
the fees and disbursements are not shared, directly or indirectly,
with the person negotiating the loan or the lender.
(6) Any person licensed as a finance lender when acting under the
authority of that license.
(7) Any cemetery authority as defined by Section 7018 of the
Health and Safety Code, that is authorized to do business in this
state or its authorized agent.
(8) Any person authorized in writing by a savings institution to
act as an agent of that institution, as authorized by Section 6520 of
the Financial Code or comparable authority of the Federal Home Loan
Bank Board by its regulations, when acting under the authority of
that written authorization.
(9) Any person who is licensed as a securities broker or
securities dealer under any law of this state, or of the United
States, or any employee, officer, or agent of that person, if that
person, employee, officer, or agent is acting within the scope of
authority granted by that license in connection with a transaction
involving the offer, sale, purchase, or exchange of a security
representing an ownership interest in a pool of promissory notes
secured directly or indirectly by liens on real property, which
transaction is subject to any law of this state or the United States
regulating the offer or sale of securities.
(10) Any person licensed as a residential mortgage lender or
servicer when acting under the authority of that license.
(b) Persons described in paragraph (1), (2), or (3), as follows,
are exempt from the provisions of subdivisions (d) and (e) of Section
10131 or Section 10131.1 with respect to the collection of payments
or performance of services for lenders or on notes of owners in
connection with loans secured directly or collaterally by liens on
real property:
(1) The person makes collections on 10 or less of those loans, or
in amounts of forty thousand dollars ($40,000) or less, in any
calendar year.
(2) The person is a corporation licensed as an escrow agent under
Division 6 (commencing with Section 17000) of the Financial Code and
the payments are deposited and maintained in the escrow agent's trust
account.
(3) An employee of a real estate broker who is acting as the agent
of a person described in paragraph (4) of subdivision (b) of Section
10232.4.
For purposes of this subdivision, performance of services does not
include soliciting borrowers, lenders, or purchasers for, or
negotiating, loans secured directly or collaterally by a lien on real
property.
SEC. 9. Section 10133.15 of the Business and Professions Code is
amended to read:
10133.15. The provisions of Article 5 (commencing with Section
10230) and Article 7 (commencing with Section 10240) do not apply to
any person whose business is that of acting as an authorized
representative, agent, or loan correspondent of any person or
employee thereof doing business under any law of this state, any
other state, or the United States relating to banks, trust companies,
savings and loan associations, industrial loan companies, pension
trusts, credit unions, or insurance companies or when making loans
qualified for sale to any of the foregoing insofar as that business
is concerned.
SEC. 10. Section 10133.5 of the Business and Professions Code is
amended to read:
10133.5. The provisions of Article 5 (commencing with Section
10230) do not apply to any person who is an approved lender,
mortgagee, seller, or servicer for the Federal Housing
Administration, United States Department of Veterans Affairs, Farmers
Home Administration, Government National Mortgage Association,
Federal National Mortgage Association, or Federal Home Loan Mortgage
Corporation, when making loans to be sold to, or when servicing loans
on behalf of and subject to audit by, any of the foregoing with
respect to those loans.
SEC. 11. Section 10145 of the Business and Professions Code is
amended to read:
10145. (a) (1) A real estate broker who accepts funds belonging
to others in connection with a transaction subject to this part shall
deposit all those funds that are not immediately placed into a
neutral escrow depository or into the hands of the broker's
principal, into a trust fund account maintained by the broker in a
bank or recognized depository in this state. All funds deposited by
the broker in a trust fund account shall be maintained there until
disbursed by the broker in accordance with instructions from the
person entitled to the funds.
(2) Notwithstanding the provisions of paragraph (1), a real estate
broker collecting payments or performing services for investors or
note owners in connection with loans secured by a first lien on real
property may deposit funds received in trust in an out-of-state
depository institution insured by the Federal Deposit Insurance
Corporation, if the investor or note owner is any one of the
following:
(A) The Federal National Mortgage Association, the Government
National Mortgage Association, the Federal Home Loan Mortgage
Corporation, the Federal Housing Administration, or the United States
Department of Veterans Affairs.
(B) A bank or subsidiary thereof, bank holding company or
subsidiary thereof, trust company, savings bank or savings and loan
association or subsidiary thereof, savings bank or savings
association holding company or subsidiary thereof, credit union,
industrial bank or industrial loan company, or insurance company
doing business under the authority of, and in accordance with, the
laws of this state, another state, or the United States relating to
banks, trust companies, savings banks or savings associations, credit
unions, industrial banks or industrial loan companies, or insurance
companies, as evidenced by a license, certificate, or charter issued
by the United States or a state, district, territory, or commonwealth
of the United States.
(C) Trustees of a pension, profit-sharing, or welfare fund, if the
pension, profit-sharing, or welfare fund has a net worth of not less
than fifteen million dollars ($15,000,000).
(D) A corporation with outstanding securities registered under
Section 12 of the Securities Exchange Act of 1934 or a wholly owned
subsidiary of that corporation.
(E) A syndication or other combination of any of the entities
specified in subparagraph (A), (B), (C), or (D) that is organized to
purchase the promissory note.
(F) The California Housing Finance Agency or a local housing
finance agency organized under the Health and Safety Code.
(G) A licensed residential mortgage lender or servicer acting
under the authority of that license.
(H) A licensed real estate broker selling all or part of the loan,
note, or contract to a lender or purchaser specified in
subparagraphs (A) to (G), inclusive, of this subdivision.
(3) A real estate broker who deposits funds held in trust in an
out-of-state depository institution in accordance with the provisions
of paragraph (2) shall make available, in this state, the books,
records, and files pertaining to the trust accounts to the
commissioner or the commissioner's representatives, or pay the
reasonable expenses for travel and lodging incurred by the
commissioner or the commissioner's representatives in order to
conduct an examination at an out-of-state location.
(b) A real estate broker acting as a principal pursuant to Section
10131.1 shall place all funds received from others for the purchase
of real property sales contracts or promissory notes secured directly
or collaterally by liens on real property in a neutral escrow
depository unless delivery of the contract or note is made
simultaneously with the receipt of the purchase funds.
(c) A real estate sales person who accepts trust funds from others
on behalf of the broker under whom he or she is licensed shall
immediately deliver the funds to the broker or, if so directed by the
broker, shall deliver the funds into the custody of the broker's
principal or a neutral escrow depository, or shall deposit the funds
into the broker's trust fund account.
(d) If not otherwise expressly prohibited by this part, a real
estate broker may, at the request of the owner of trust funds or of
the principals to a transaction or series of transactions from whom
the broker has received trust funds, deposit the funds into an
interest-bearing account in a bank, savings and loan association,
credit union, or industrial loan company the accounts of which are
insured by the Federal Deposit Insurance Corporation, if all of the
following requirements are met:
(1) The account is in the name of the broker as trustee for the
designated beneficiary or principal of a transaction or series of
transactions.
(2) All of the funds in the account are covered by insurance
provided by an agency of the United States.
(3) The funds in the account are kept separate, distinct, and
apart from funds belonging to the broker or to any other person for
whom the broker holds funds in trust.
(4) The broker discloses to the person from whom the trust funds
are received and to a beneficiary whose identity is known to the
broker at the time of establishing the account the nature of the
account, how interest will be calculated and paid under various
circumstances, whether service charges will be paid to the depository
and by whom, and possible notice requirements or penalties for
withdrawal of funds from the account.
(5) Interest earned on funds in the account may not inure directly
or indirectly to the benefit of the broker or a person licensed to
the broker.
(6) In an executory sale, lease, or loan transaction in which the
broker accepts funds in trust to be applied to the purchase, lease,
or loan, the parties to the contract shall have specified in the
contract or by collateral written agreement the person to whom
interest earned on the funds is to be paid or credited.
(e) The broker shall have no obligation to place trust funds into
an interest-bearing account unless requested to do so and unless all
of the conditions in subdivision (d) are met, nor, in any event, if
he or she advises the party making the request that the funds will
not be placed in an interest-bearing account.
(f) Nothing in subdivision (d) shall preclude the commissioner
from prescribing, by regulation, circumstances in which, and
conditions under which, a real estate broker is authorized to deposit
funds received in trust into an interest-bearing trust fund account.
(g) The broker shall maintain a separate record of the receipt and
disposition of all funds described in subdivisions (a) and (b),
including any interest earned on the funds.
(h) Upon request of the commissioner, a broker shall furnish to
the commissioner an authorization for examination of financial
records of those trust fund accounts maintained in a financial
institution, in accordance with the procedures set forth in Section
7473 of the Government Code.
(i) As used in this section "neutral escrow" means an escrow
business conducted by a person licensed under Division 6 (commencing
with Section 17000) of the Financial Code or by a person described in
subdivision (a) or (c) of Section 17006 of that code.
SEC. 12. Section 10165 of the Business and Professions Code is
amended to read:
10165. For a violation of any of the provisions of Section 10160,
10161.8, 10162, or 10163, the commissioner may temporarily suspend
or permanently revoke the license of the real estate licensee in
accordance with the provisions of this part relating to hearings.
SEC. 13. Section 10223 of the Business and Professions Code is
repealed.
SEC. 14. Section 10231 of the Business and Professions Code is
amended to read:
10231. Except as authorized by permit issued pursuant to
applicable provisions of the Corporate Securities Law of 1968
(Division 1 (commencing with Section 25000) of Title 4 of the
Corporations Code), no person, in doing any of the acts set forth in
subdivision (d) or (e) of Section 10131 or in Section 10131.1, shall
accept any purchase or loan funds or other consideration from a
prospective purchaser or lender, or directly or indirectly cause
those funds or other consideration to be deposited in an escrow,
except as to a specific loan or a specific real property sales
contract or promissory note secured directly or collaterally by a
lien on real property (a) as to which loan, contract, or note the
person has a bona fide authorization to negotiate or to sell, (b)
where the loan, contract, or note has been bought and completely paid
for by the person, or (c) where the person has an unconditional
written contract which obligates the person to purchase the specific
real property sales contract or promissory note secured directly or
collaterally by a deed of trust.
SEC. 15. Section 10231.2 of the Business and Professions Code is
amended to read:
10231.2. (a) A real estate broker who, through express or implied
representations that the broker or any salesperson acting on the
broker's behalf is engaging in acts for which a real estate license
is required by subdivision (d) or (e) of Section 10131, proposes to
solicit and accept funds, or to cause the solicitation and
acceptance of funds, to be applied
to a purchase or loan transaction in which the broker will directly
or indirectly obtain the use or benefit of the funds other than for
commissions, fees, and costs and expenses as provided by law for the
broker's services as an agent, shall, prior to the making of any
representation, solicitation, or presentation of the statement
described in subdivision (b), submit the following to the Department
of Real Estate:
(1) A true copy of the statement described in subdivision (b)
complete except for the signature of the prospective lender or
purchaser.
(2) A statement that the submittal is being made to the department
pursuant to Section 10231.2.
(b) A broker making a solicitation pursuant to subdivision (a)
shall deliver, or cause to be delivered, to the person solicited, the
applicable completed statement described in Section 10232.5 not less
than 24 hours before the earlier of the acceptance of any funds from
that person by or on behalf of the broker or the execution of any
instrument obligating the person to make the loan or purchase. The
statement shall be signed by the prospective lender or purchaser and
by the real estate broker or, on the broker's behalf, by a real
estate salesperson licensed to the broker. When so executed, an
exact copy of the executed statement shall be given to the
prospective lender or purchaser, and the broker shall retain a true
copy of the executed statement for a period of four years.
(c) None of the provisions of subdivision (a) or (b) shall apply
in the case of an offering of a security authorized pursuant to
applicable provisions of the Corporate Securities Law of 1968
(Division 1 (commencing with Section 25000 of Title 4 of the
Corporations Code).
(d) In the case of a solicitation by a corporate real estate
broker, the provisions of subdivisions (a) and (b) shall apply if the
funds solicited are intended for the direct or indirect use or
benefit of an officer or director of the corporation or of a person
with a 10 percent or greater ownership interest in the corporation.
SEC. 16. Section 10232 of the Business and Professions Code is
amended to read:
10232. (a) Except as otherwise expressly provided, Sections
10232.2 and 10232.25 are applicable to every real estate broker who
intends or reasonably expects in a successive 12 months to do any of
the following:
(1) Negotiate a combination of 10 or more of the following
transactions pursuant to subdivision (d) or (e) of Section 10131 or
Section 10131.1 in an aggregate amount of more than one million
dollars ($1,000,000):
(A) Loans secured directly or collaterally by liens on real
property or on business opportunities, as agent for another or
others.
(B) Sales or exchanges of real property sales contracts or
promissory notes secured directly or collaterally by liens on real
property or on business opportunities, as agent for another or
others.
(C) Sales or exchanges of real property sales contracts or
promissory notes secured directly or collaterally by liens on real
property, as the owner of those notes or contracts.
(2) Make collections of payments in an aggregate amount of two
hundred fifty thousand dollars ($250,000) or more on behalf of owners
of promissory notes secured directly or collaterally by liens on
real property, owners of real property sales contracts, or both.
(3) Make collections of payments in an aggregate amount of two
hundred fifty thousand dollars ($250,000) or more on behalf of
obligors of promissory notes secured directly or collaterally by
liens on real property, lenders of real property sales contracts, or
both.
Persons under common management, direction, or control in
conducting the activities enumerated above shall be considered as one
person for the purpose of applying the above criteria.
(b) The negotiation of a combination of two or more new loans and
sales or exchanges of existing promissory notes and real property
sales contracts of an aggregate amount of more than two hundred fifty
thousand dollars ($250,000) in any three successive months, or a
combination of five or more new loans and sales or exchanges of
existing promissory notes and real property sales contracts of an
aggregate amount of more than five hundred thousand dollars
($500,000) in any successive six months, shall create a rebuttable
presumption that the broker intends to negotiate new loans and sales
and exchanges of an aggregate amount that will meet the criteria of
subdivision (a).
(c) In determining the applicability of Sections 10232.2 and
10232.25, loans or sales negotiated by a broker, or for which a
broker collects payments or provides other servicing for the owner of
the note or contract, shall not be counted in determining whether
the broker meets the criteria of subdivisions (a) and (b) if any of
the following apply:
(1) The lender or purchaser is any of the following:
(A) The Federal National Mortgage Association, the Government
National Mortgage Association, the Federal Home Loan Mortgage
Corporation, the Federal Housing Administration, or the United States
Department of Veterans Affairs.
(B) A bank or subsidiary thereof, bank holding company or
subsidiary thereof, trust company, savings bank or savings and loan
association or subsidiary thereof, savings bank or savings
association holding company or subsidiary thereof, credit union,
industrial bank or industrial loan company, finance lender, or
insurer doing business under the authority of, and in accordance
with, the laws of this state, any other state, or the United States
relating to banks, trust companies, savings banks or savings
associations, credit unions, industrial banks or industrial loan
companies, finance lenders, or insurers, as evidenced by a license,
certificate, or charter issued by the United States or a state,
district, territory, or commonwealth of the United States.
(C) Trustees of a pension, profit-sharing, or welfare fund, if the
pension, profit-sharing, or welfare fund has a net worth of not less
than fifteen million dollars ($15,000,000).
(D) A corporation with outstanding securities registered under
Section 12 of the Securities Exchange Act of 1934 or a wholly owned
subsidiary of that corporation.
(E) A syndication or other combination of any of the entities
specified in subparagraph (A), (B), (C), or (D) that is organized to
purchase the promissory note.
(F) The California Housing Finance Agency or a local housing
finance agency organized under the Health and Safety Code.
(G) A licensed residential mortgage lender or servicer acting
under the authority of that license.
(H) An institutional investor that issues mortgage-backed
securities, as specified in paragraph (11) of subdivision (i) of
Section 50003 of the Financial Code.
(I) A licensed real estate broker selling all or part of the loan,
the note, or the contract to a lender or purchaser specified in
subparagraphs (A) to (H), inclusive, of this subdivision.
(2) The loan or sale is negotiated, or the loan or contract is
being serviced for the owner, under authority of a permit issued
pursuant to applicable provisions of the Corporate Securities Law of
1968 (Division 1 (commencing with Section 25000) of Title 4 of the
Corporations Code).
(3) The transaction is subject to the requirements of Article 3
(commencing with Section 2956) of Chapter 2 of Title 14 of Part 4 of
the Civil Code.
(d) If two or more real estate brokers who are not under common
management, direction, or control, cooperate in the negotiation of a
loan or the sale or exchange of a promissory note or real property
sales contract and share in the compensation for their services, the
dollar amount of the transaction shall be allocated according to the
ratio that the compensation received by each broker bears to the
total compensation received by all brokers for their services in
negotiating the loan or sale or exchange.
(e) A real estate broker who meets any of the criteria of
subdivision (a) or (b) shall notify the department in writing within
30 days after that determination is made.
SEC. 17. Section 10232.1 of the Business and Professions Code is
amended to read:
10232.1. (a) A real estate broker, prior to the use of any
proposed advertisement in connection with the conduct of activities
described in subdivisions (d) and (e) of Section 10131 and Section
10131.1, may submit a true copy thereof to the Department of Real
Estate for approval. The submission shall be accompanied by a fee of
not more than forty dollars ($40). The commissioner shall by
regulation prescribe the amount of the fee. If disapproval of the
proposed advertisement is not communicated by the department to the
broker within 15 calendar days after receipt of the copy of the
proposed advertisement by the department, the proposed advertisement
shall be deemed approved, but the department shall not be precluded
from disapproving a later publication or other use of the same or
similar advertising.
The commissioner shall adopt regulations pertaining to the
submittal and clearance of that advertising and establishing criteria
for approval to ensure that the public will be protected against
false or misleading representations.
Except as provided in subdivision (b), "advertisement" includes
dissemination in any newspaper, circular, form letter, brochure or
similar publication, display, sign, radio broadcast or telecast,
which concerns (1) the use, terms, rates, conditions, or the amount
of any loan or sale referred to in subdivisions (d) and (e) of
Section 10131 or Section 10131.1 or (2) the security, solvency, or
stability of any person carrying on the activities described in those
sections.
(b) "Advertisement" does not include a letter or brochure that
meets both of the following criteria:
(1) It is restricted in distribution to other real estate brokers
and to persons for whom the broker has previously acted as an agent
in arranging a loan secured by real property or in the purchase,
sale, or exchange of a deed of trust or real property sales contract.
(2) It is restricted in content to the identification and a
description of the terms of loans, mortgages, deeds of trust, real
property sales contracts, or any combination thereof offered for
funding or purchase through the broker as agent.
(c) Subdivision (a) is not applicable to advertising that is used
exclusively in connection with an offering authorized by permit
issued pursuant to the applicable provisions of the Corporate
Securities Law of 1968 (Division 1 (commencing with Section 25000 of
Title 4 of the Corporations Code).
(d) All advertising approvals shall be for a period of five years
after the date of approval. The approval period applies to all
advertising, including that which was previously submitted on a
mandatory basis.
SEC. 18. Section 10232.4 of the Business and Professions Code is
amended to read:
10232.4. (a) In making a solicitation to a particular person and
in negotiating with that person to make a loan secured by real
property or to purchase a real property sales contract or a note
secured by a deed of trust, a real estate broker shall deliver to the
person solicited the applicable completed statement described in
Section 10232.5 as early as practicable before he or she becomes
obligated to make the loan or purchase and, except as provided in
subdivision (c), before the receipt by or on behalf of the broker of
any funds from that person. The statement shall be signed by the
prospective lender or purchaser and by the real estate broker, or by
a real estate salesperson licensed to the broker, on the broker's
behalf. When so executed, an exact copy shall be given to the
prospective lender or purchaser, and the broker shall retain a true
copy of the executed statement for a period of three years.
(b) The requirement of delivery of a disclosure statement pursuant
to subdivision (a) shall not apply with respect to the following
persons:
(1) The prospective purchaser of a security offered under
authority of a permit issued pursuant to applicable provisions of the
Corporate Securities Law of 1968 (Division 1 (commencing with
Section 25000) of Title 4 of the Corporations Code) which requires
that each prospective purchaser of a security be given a prospectus
or other form of disclosure statement approved by the department
issuing the permit.
(2) The seller of real property who agrees to take back a
promissory note of the purchaser as a method of financing all or a
part of the purchase of the property.
(3) The prospective purchaser of a security offered pursuant to,
and in accordance with, a regulation duly adopted by the Commissioner
of Corporations granting an exemption from qualification under the
Corporate Securities Law of 1968 for the offering if one of the
conditions of the exemption is that each prospective purchaser of the
security be given a disclosure statement prescribed by the
regulation before the prospective purchaser becomes obligated to
purchase the security.
(4) A prospective lender or purchaser, if that lender or purchaser
is any of the following:
(A) The United States or any state, district, territory, or
commonwealth thereof, or any city, county, city and county, public
district, public authority, public corporation, public entity, or
political subdivision of a state, district, territory, or
commonwealth of the United States, or any agency or corporate or
other instrumentality of any one or more of the foregoing, including
the Federal National Mortgage Association, the Government National
Mortgage Association, the Federal Home Loan Mortgage Corporation, the
Federal Housing Administration, and the United States Department of
Veterans Affairs.
(B) Any bank or subsidiary thereof, bank holding company or
subsidiary thereof, trust company, savings bank or savings and loan
association or subsidiary thereof, savings bank or savings
association holding company or subsidiary thereof, credit union,
industrial bank or industrial loan company, personal property broker,
commercial finance lender, consumer finance lender, or insurance
company doing business under the authority of, and in accordance
with, the laws of this state, any other state, or the United States
relating to banks, trust companies, savings banks or savings
associations, credit unions, industrial banks or industrial loan
companies, finance lenders, or insurance companies, as evidenced by a
license, certificate, or charter issued by the United States or any
state, district, territory, or commonwealth of the United States.
(C) Trustees of pension, profit-sharing, or welfare fund, if the
pension, profit-sharing, or welfare fund has a net worth of not less
than fifteen million dollars ($15,000,000).
(D) Any corporation with outstanding securities registered under
Section 12 of the Securities Exchange Act of 1934 or any wholly owned
subsidiary of that corporation.
(E) Any syndication or other combination of any of the entities
specified in subparagraph (A), (B), (C), or (D) that is organized to
purchase the promissory note.
(F) A licensed real estate broker engaging in the business of
selling all or part of the loan, note, or contract to a lender or
purchaser to whom no disclosure is required pursuant to this
subdivision.
(G) A licensed residential mortgage lender or servicer when acting
under the authority of that license.
(c) When the broker has custody of funds of a prospective lender
or purchaser which were received and are being maintained with the
express permission of the owner and in accordance with law, and the
broker retains the funds in an escrow depository or a trust fund
account pending receipt of the owner's express written instructions
to disburse the funds for a loan or purchase, the broker shall cause
the disclosure statement to be delivered to the owner and shall
obtain the owner's written consent to the proposed disbursement
before making the disbursement. Unless the broker has a written
agreement with the owner as provided in Section 10231.1, the broker
shall transmit to the owner not later than 60 days after receipt, all
funds then in the broker's custody for which the owner has not given
written instructions authorizing disbursement.
SEC. 19. Section 10236 of the Business and Professions Code is
amended to read:
10236. The commissioner in his or her discretion may honor
requests from interested persons for interpretive opinions with
respect to any provision of this article or with respect to any
regulation for implementation of provisions of this article.
No provision of this article imposing any liability applies in the
case of an act done or omitted in good faith in conformity with a
written interpretive opinion of the commissioner or an opinion of the
Attorney General, notwithstanding that the opinion may later be
amended or rescinded or be determined by judicial or other authority
to be invalid for any reason.
SEC. 20. Section 10236.2 of the Business and Professions Code is
amended to read:
10236.2. (a) A real estate broker who satisfies the criteria of
subdivision (a) or (b) of Section 10232 and who fails to notify the
Department of Real Estate, in writing, of that fact within 30 days
thereafter as required by subdivision (e) of Section 10232 shall be
assessed a penalty of fifty dollars ($50) per day for each additional
day written notification has not been received up to and including
the 30th day after the first day of the assessment penalty. On and
after the 31st day the penalty is one hundred dollars ($100) per day,
not to exceed a total penalty of ten thousand dollars ($10,000),
regardless of the number of days, until the department receives the
written notification.
(b) The commissioner may suspend or revoke the license of any real
estate broker who fails to pay a penalty imposed under this section.
In addition, the commissioner may bring an action in an appropriate
court of this state to collect payment of the penalty.
(c) All penalties paid or collected under this section shall be
deposited into the Recovery Account of the Real Estate Fund.
SEC. 21. Section 11000.1 of the Business and Professions Code is
amended to read:
11000.1. (a) "Subdivided lands" and "subdivision," as defined by
Sections 11000 and 11004.5, also include improved or unimproved land
or lands, a lot or lots, or a parcel or parcels, of any size, in
which, for the purpose of sale or lease or financing, whether
immediate or future, five or more undivided interests are created or
are proposed to be created.
(b) This section does not apply to the creation or proposed
creation of undivided interests in land if any one of the following
conditions exists:
(1) The undivided interests are held or to be held by persons
related one to the other by blood or marriage.
(2) The undivided interests are to be purchased and owned solely
by persons who present evidence satisfactory to the Real Estate
Commissioner that they are knowledgeable and experienced investors
who comprehend the nature and extent of the risks involved in the
ownership of these interests. The Real Estate Commissioner shall
grant an exemption from this part if the undivided interests are to
be purchased by no more than 10 persons, each of whom furnishes a
signed statement to the commissioner that he or she (A) is fully
informed concerning the real property to be acquired and his or her
interest therein including the risks involved in ownership of
undivided interests, (B) is purchasing the interest or interests for
his or her own account and with no present intention to resell or
otherwise dispose of the interest for value, and (C) expressly waives
the protections afforded to a purchaser by this part.
(3) The undivided interests are created as the result of a
foreclosure sale.
(4) The undivided interests are created by a valid order or decree
of a court.
(5) The offering and sale of the undivided interests have been
expressly qualified by the issuance of a permit from the Commissioner
of Corporations pursuant to the Corporate Securities Law of 1968
(Division 1 (commencing with Section 25000) of Title 4 of the
Corporations Code).
(6) The real property is offered for sale as a time-share project
as defined in Section 11003.5.
SEC. 22. Section 11010.2 of the Business and Professions Code is
amended to read:
11010.2. (a) As used in this section:
(1) "Quantitative" means the number and type of documents required
to make the filing substantially complete, as defined in the
regulations of the commissioner, without regard to the content of
those requirements.
(2) "Qualitatively complete" means that all deficiencies and
substantive inadequacies contained in the documents that were
required to make the filing substantially complete have been
corrected.
(3) "Substantially complete" means that a notice and application
contain all requirements as set forth in the regulations of the
commissioner.
(b) Upon receipt of a notice of intention pursuant to Section
11010 and an application for issuance of a public report, the
commissioner shall review the notice and application to determine if
the notice and application are substantially complete, with respect
to quantitative requirements. The commissioner shall notify the
applicant in writing of that determination within 10 days of receipt
of the notice and application.
(1) If the notice and application are not substantially complete
with respect to the quantitative requirements pursuant to this
subdivision, the notification shall specify the information needed to
make the notice and application substantially complete. Upon
receipt of any resubmittal of a notice and application, the
commissioner shall notify the applicant in writing of that
determination within 10 days of receipt of the notice and
application.
(2) If the commissioner determines that the notice and application
are substantially complete with respect to the quantitative
requirements pursuant to this subdivision, the commissioner shall
provide the applicant with a list of all deficiencies and substantive
inadequacies necessary for the notice and application to be
qualitatively complete, within 60 days of that determination in the
case of subdivisions specified in Section 11000.1 or 11004.5, and
within 20 days of that determination in the case of other
subdivisions.
(c) Upon receipt of all documents, materials, writings, and other
information submitted in response to the list in paragraph (2) of
subdivision (b), the commissioner shall notify the applicant whether
the notice and application are qualitatively complete, within 30 days
in the case of subdivisions specified in Section 11000.1 or 11004.5,
and within 20 days of receipt in the case of other subdivisions. If
the application and notice are not qualitatively complete, the
notification shall include a list of any remaining deficiencies and
substantive inadequacies. Upon receipt of any resubmittal of
documents, materials, writings, and other information in response to
a list of any remaining deficiencies and substantive inadequacies,
the commissioner shall provide notification within the time limits
specified in this subdivision.
(d) The commissioner shall issue a public report within 15 days in
the case of a subdivision specified in Section 11000.1 or 11004.5,
or within 10 days in the case of other subdivisions, after the notice
and application are determined to be qualitatively and substantially
complete, and submittal of recorded or filed instruments and
evidence of financial arrangements required by the commissioner.
(e) The commissioner shall adopt regulations, in accordance with
Chapter 3.5 (commencing with Section 11340) of Division 3 of Title 2
of the Government Code, which define "substantially complete" and
which list all the requirements necessary for a notice of intention
and application to be considered "substantially complete."
(f) The commissioner may adopt emergency regulations, in
accordance with Chapter 3.5 (commencing with Section 11340) of
Division 3 of Title 2 of the Government Code, to, as set forth below,
increase those time periods specified in subdivisions (b), (c), and
(d), upon a showing that the number of notices of intention and
applications for a subdivision public report filed with the
department for any immediately preceding six-month period has
increased by more than 15 percent over the monthly average number of
notices and applications filed for the base period commencing July 1,
1983, and ending June 30, 1986:
(1) The time for issuing the notice provided in subdivision (b)
shall increase to 15 days.
(2) The time for providing the listing required by paragraph (2)
of subdivision (b) shall increase to 90 days in the case of
subdivisions specified in Sections 11000.1 and 11004.5 and to 30 days
for other subdivisions.
(3) The time period provided in subdivision (c) for responding to
receipt of documents intended to correct deficiencies shall be 30
days without regard to the type of subdivision being processed.
(4) The time periods provided in subdivision (d) within which the
commissioner is required to issue a public report, in the case of
subdivisions specified in Sections 11000.1 and 11004.5 shall increase
to 30 days, and in the case of other subdivisions shall increase to
15 days.
This section does not apply to filings made exclusively under
Section 11010.1. Nothing in this section requires the commissioner
to issue a public report where grounds for denial exist. However,
issuance of a public report shall not be denied for inadequate
information if the cause thereof is the commissioner's failure to
comply with this section.
Notwithstanding other provisions of this section, the commissioner
shall not be required to issue a public report if grounds for denial
exist under Section 11018 or 11018.5. However, the commissioner may
not base the denial of a public report on the lack of adequate
information if the commissioner has not acted within the time periods
prescribed in this section.
SEC. 23. Section 11010.4 of the Business and Professions Code is
amended to read:
11010.4. The notice of intention specified in Section 11010 is
not required for a proposed offering of subdivided land that
satisfies all of the following criteria:
(a) The owner, subdivider, or agent has complied with Sections
11013.1, 11013.2, and 11013.4, if applicable.
(b) The subdivided land is not a subdivision as defined in Section
11000.1 or 11004.5.
(c) Each lot, parcel, or unit of the subdivision is located
entirely within the boundaries of a city.
(d) Each lot, parcel, or unit of the subdivision will be sold or
offered for sale improved with a completed residential structure and
with all other improvements completed that are necessary to occupancy
or with financial arrangements determined to be adequate by the city
to ensure completion of those improvements.
SEC. 24. Section 11018.3 of the Business and Professions Code is
amended to read:
11018.3. Any subdivider objecting to the denial of a public
report may, within 30 days after receipt of the order of denial, file
a written request for a hearing. The commissioner shall hold the
hearing within 20 days thereafter unless the party requesting the
hearing has requested a postponement. If the hearing is not held
within 20 days after the request for a hearing is received plus the
period of that postponement or if a proposed decision is not rendered
within 45 days after submission and an order adopting or rejecting
the proposed decision is not issued within 15 days thereafter, the
order of denial shall be rescinded and a public report issued.
SEC. 25. Section 11018.12 of the Business and Professions Code is
amended to read:
11018.12. (a) The commissioner may issue a conditional public
report for a subdivision specified in Section 11004.5 if the
requirements of subdivision (e) are met, all deficiencies and
substantive inadequacies in the documents that are required to make
an application for a final public report for the subdivision
substantially complete have been corrected, the material elements of
the setup of the offering to be made under the authority of the
conditional public report have been established, and all requirements
for issuance of a public report set forth in the regulations of the
commissioner have been satisfied except for one or more of the
following requirements, as applicable:
(1) A final map has not been recorded.
(2) A condominium plan pursuant to subdivision (e) of Section 1351
of the Civil Code has not been recorded.
(3) A declaration of covenants, conditions, and restrictions
pursuant to Section 1353 of the Civil Code has not been recorded.
(4) A declaration of annexation has not been recorded.
(5) A recorded subordination of existing liens to the declaration
of covenants, conditions, and restrictions or declaration of
annexation or escrow instructions to effect recordation prior to the
first sale are lacking.
(6) Filed articles of incorporation are lacking.
(7) A current preliminary report of a licensed title insurance
company issued after filing of the final map and recording of the
declaration covering all subdivision interests to be included in the
public report has not been provided.
(8) Other requirements the commissioner determines are likely to
be timely satisfied by the applicant, notwithstanding the fact that
the failure to meet these requirements makes the application
qualitatively incomplete.
(b) The commissioner may issue a conditional public report for a
subdivision not referred to or specified in Section 11000.1 or
11004.5 if the requirements of subdivision (e) are met, all
deficiencies and substantive inadequacies in the documents that are
required to make an application for a final public report for the
subdivision substantially complete have been corrected, the material
elements of the setup of the offering to be made under the authority
of the conditional public report have been established, and all
requirements for issuance of a public report set forth in the
regulations of the commissioner have been satisfied except for one or
more of the following requirements, as applicable:
(1) A final map has not been recorded.
(2) A declaration of covenants, conditions, and restrictions has
not been recorded.
(3) A current preliminary report of a licensed title insurance
company issued after filing of the final map and recording of the
declaration covering all subdivision interests to be included in the
public report has not been provided.
(4) Other requirements the commissioner determines are likely to
be timely satisfied by the applicant, notwithstanding the fact that
the failure to meet these requirements makes the application
qualitatively incomplete.
(c) A decision by the commissioner to not issue a conditional
public report shall be noticed in writing to the applicant within
five business days and that notice shall specifically state the
reasons why the report is not being issued.
(d) Notwithstanding the provisions of Section 11018.2, a person
may sell or lease, or offer for sale or lease, lots or parcels in a
subdivision pursuant to a conditional public report if, as a
condition of the sale or lease or offer for sale or lease, delivery
of legal title or other interest contracted for will not take place
until issuance of a public report and provided that the requirements
of subdivision (e) are met.
(e) (1) Evidence shall be supplied that all purchase money will be
deposited in compliance with subdivision (a) of Section 11013.2 or
subdivision (a) of Section 11013.4, and in the case of a subdivision
referred to in subdivision (a) evidence is given of compliance with
paragraphs (1) and (2) of subdivision (a) of Section 11018.5.
(2) A description of the nature of the transaction shall be
supplied.
(3) Provision shall be made for the return of the entire sum of
money paid or advanced by the purchaser if a subdivision public
report has not been issued within six months of the date of issuance
of the conditional public report or the purchaser is dissatisfied
with the public report because of a change pursuant to Section 11012.
(f) A subdivider, principal, or his or her agent shall provide a
prospective purchaser a copy of the conditional public report and a
written statement including all of the following:
(1) Specification of the information required for issuance of a
public report.
(2) Specification of the information required in the public report
that is not available in the conditional public report, along with a
statement of the reasons why that information is not available at
the time of issuance of the conditional public report.
(3) A statement that no person acting as a principal or agent
shall sell, lease, or offer for sale or lease lots or parcels in a
subdivision for which a conditional public report has been issued,
except as provided in this article.
(4) Specification of the requirements of subdivision (e).
(g) The prospective purchaser shall sign a receipt that he or she
has received and has read the conditional public report and the
written statement provided pursuant to subdivision (f).
(h) The term of a conditional public report shall not exceed six
months, and may be renewed for one additional term of six months if
the commissioner determines that the requirements for issuance of a
public report are likely to be satisfied during the renewal term.
SEC. 26. Section 17505.2 of the Business and Professions Code is
amended to read:
17505.2. (a) It is unlawful for a person to represent himself or
herself as a recreation therapist, to represent the services he or
she performs as recreation therapy, or to use terms set forth in
subdivision (c) in connection with his or her services, name, or
place of business, unless he or she meets all of the following
requirements:
(1) Graduation from an accredited college or university with a
minimum of a baccalaureate degree in recreation therapy or in
recreation and leisure studies with a specialization in recreation
therapy. Alternatively, a person who does not have one of the
preceding degrees may qualify if he or she has a baccalaureate degree
in a specialization acceptable for certification or eligible for
certification by any accrediting body specified in paragraph (2).
(2) Current certification or eligibility for certification as a
recreation therapist by the California Board of Recreation and Park
Certification or by the National Council for Therapeutic Recreation
Certification, Inc.
(b) No person shall represent himself or herself as a recreation
therapist assistant, or represent the services he or she performs as
being in any way related to recreation therapy, unless he or she at a
minimum has current certification, or has eligibility for
certification, by the California Board of Recreation and Park
Certification or by the National Council for Therapeutic Recreation
Certification, Inc., as a recreation therapist assistant.
(c) A person who does not meet the requirements of subdivision (a)
or (b) may not use any of the following words or abbreviations in
connection with his or her services, name, or place of business:
(1) Recreation therapist registered.
(2) Recreation therapist certified.
(3) Certified therapeutic recreation specialist.
(4) Recreation therapist.
(5) Recreation therapist assistant registered.
(6) Certified therapeutic recreation assistant.
(7) RTR.
(8) RTC.
(9) CTRS.
(10) RT.
(11) RTAR.
(12) CTRA.
(d) For purposes of subdivision (c), the abbreviation RT shall not
be construed to include rehabilitation therapist or respiratory
therapist.
(e) Any person injured by a violation of this section may bring a
civil action and may recover one thousand five hundred dollars
($1,500) for the first violation and two thousand five hundred
dollars ($2,500) for each subsequent violation. This is the sole
remedy for a violation of this section.
SEC. 27. Section 17538 of the Business and Professions Code is
amended to read:
17538. (a) It is unlawful in the sale or lease or offering for
sale or lease of goods or services, for any person conducting sales
or leases by telephone, the Internet or other electronic means of
communication, mail order, or catalog in this state, including, but
not limited to, the offering for sale or lease on television, radio,
or the Internet, or by any other electronic means of communication or
telecommunications device, of goods or services that may be ordered
by mail, telephone, the Internet, or other electronic means of
communication or telecommunications device, or for any person
advertising in connection with those sales, leases, or advertisements
a mailing address, telephone number, or Internet or other electronic
address, to accept payment from or for a buyer, for the purchase or
lease of goods or services ordered by mail, telephone, the Internet,
or other electronic means of communication or telecommunications
device, whether payment to the vendor is made directly, through the
mail, by means of a transfer of funds from an account of the buyer or
any other person, or by any other means, and then permit 30 days,
unless otherwise conspicuously stated in the offering or
advertisement, or unless a shorter time is clearly communicated by
the person conducting the sale or lease, to elapse without doing any
one of the following things:
(1) Shipping, mailing, or providing the goods or services ordered.
(2) Mailing a full refund or, if payment was made by means of a
transfer from an account, (A) crediting the account in the full
amount of the debit, or (B) if a third party is the creditor, issuing
a credit memorandum to the third party, who shall promptly credit
the account in the full amount of the debit.
(3) Sending the buyer a letter or other written notice (A)
advising the buyer of the duration of an expected delay expressed as
a specific number of days or weeks, or proposing the substitution of
goods or services of equivalent or superior quality, and (B) offering
to make a full refund, in accordance with paragraph (2), within one
week if the buyer so requests. The vendor shall provide to the buyer
in that letter or written notice a toll-free telephone number or
other cost-free method to communicate the buyer's request for a full
refund. If the vendor proposes to substitute goods or services, the
vendor shall describe the substitute goods or services in detail,
indicating fully how the substitute differs from the goods or
services ordered.
(4) (A) Shipping, mailing, or providing substitute goods or
services of equivalent or superior quality, if the buyer is extended
the opportunity to return the substitute goods or services and the
vendor promises to refund to the buyer (i) the cost of returning the
substitute goods or services and (ii) any portion of the purchase
price previously paid by the buyer.
(B) Except as provided in subparagraph (C), a notice to the buyer
shall accompany the mailing, shipping, or providing of the substitute
goods or services that informs the buyer of the substitution;
describes fully how the substitute differs from the goods or services
ordered, except that obvious nontechnical differences, such as
color, need not be described; and discloses the buyer's right to
reject the substitute goods or services and obtain a full refund of
the amount paid, plus the cost of returning the substitute goods or
services.
(C) The vendor may omit from the notice required by subparagraph
(B) a description of how the substitute goods or services differ from
the ordered goods or services if the notice otherwise complies with
subparagraph (B), and if all the following requirements are complied
with:
(i) The vendor maintains at least 100 retail outlets located in at
least 20 counties in this state that are open to the public
regularly during normal business hours where buyers can order catalog
goods, pick them up, and return them for refunds.
(ii) The vendor maintains a toll-free telephone number and
provides to each buyer, at the time of the buyer's call, a full
description of how substitute goods or services differ from ordered
goods or services. The toll-free telephone number shall operate and
be staffed at all times during which goods or services normally are
available for pick up from the vendor's retail outlets.
(iii) If the buyer picks up substitute goods or services from the
vendor's retail outlet, the notice required by subparagraph (B) as
modified by this subparagraph is placed on, or attached to, the
exterior of the package or wrapping containing the substitute, or is
handed to the buyer at the time the buyer picks up the substitute.
(iv) The notice contains a reference number or some other means of
identifying the ordered goods or services and the substitute goods
or services.
(v) The notice contains the vendor's toll-free telephone number
and instructions to the buyer that the buyer may call that number to
obtain a full description of how the substitute differs from the
ordered goods.
(b) For purposes of paragraphs (3) and (4) of subdivision (a),
goods or services shall be considered of "equivalent or superior
quality" only if they are (1) substantially similar to the goods or
services ordered, (2) fit for the usual purposes for which the goods
or services ordered are used, and (3) normally offered by the vendor
at a price equal to or greater than the price of the goods or
services ordered.
(c) When a buyer makes an initial application for an open-end
credit plan, as defined in the Federal Consumer Credit Protection Act
(15 U.S.C. Sec. 1602), at the same time the goods or services are
ordered, and the goods or services are to be purchased on credit, the
person conducting the business shall have 50 days, rather than 30
days, to perform the actions specified in this section.
(d) A vendor conducting business through the Internet or any other
electronic means of communication shall do all of the following
when the transaction involves a buyer located in this state:
(1) Before accepting any payment or processing any debit or credit
charge or funds transfer, the vendor shall disclose to the buyer in
writing or by electronic means of communication, such as E-mail or an
on-screen notice, the vendor's return and refund policy, the legal
name under which the business is conducted and, except as provided in
paragraph (3), the complete street address from which the business
is actually conducted.
(2) If the disclosure of the vendor's legal name and address
information required by this subdivision is made by on-screen notice,
all of the following shall apply:
(A) The disclosure of the legal name and address information shall
appear on any of the following: (i) the first screen displayed when
the vendor's electronic site is accessed, (ii) on the screen on
which goods or services are first offered, (iii) on the screen on
which a buyer may place the order for goods or services, or (iv) on
the screen on which the buyer may enter payment information, such as
a credit card account number. The communication of that disclosure
shall not be structured to be smaller or less legible than the text
of the offer of the goods or services.
(B) The disclosure of the legal name and address information shall
be accompanied by an adjacent statement describing how the buyer may
receive the information at the buyer's E-mail address. The vendor
shall provide the disclosure information to the buyer at the buyer's
E-mail address within five days of receiving the buyer's request.
(C) Until the vendor complies with subdivision (a) in connection
with all buyers of the vendor's goods or services, the vendor shall
make available to a buyer and any person or entity who may enforce
this section pursuant to Section 17535 on-screen access to the
information required to be disclosed under this subdivision.
(3) The complete street address need not be disclosed as required
by paragraph (1) if the vendor utilizes a private mailbox receiving
service and all of the following conditions are met: (A) the vendor
satisfies the conditions described in paragraph (2) of subdivision
(b) of Section 17538.5, (B) the vendor discloses the actual street
address of the private mailbox receiving service in the manner
prescribed by this subdivision for the disclosure of the vendor's
actual street address, and (C) the vendor and the private mailbox
receiving service comply with all of the requirements of subdivisions
(c) to (f), inclusive, of Section 17538.5.
(e) As used in this section and Section 17538.3, the following
words have the following meanings:
(1) "Goods" means tangible chattels, including certificates or
coupons exchangeable for those goods, and including goods which, at
the time of the sale or subsequently, are to be so affixed to real
property as to become a part of that real property, whether or not
severable therefrom.
(2) "Person" means an individual, partnership, corporation,
association, or other group, however organized.
(3) "Buyer" means a person who seeks or acquires, by purchase or
lease, any goods or services for any purpose.
(4) "Services" means work, labor, and services, including services
furnished in connection with the sale or repair of goods.
(5) "Vendor" means a person who, as described in subdivision (a),
vends, sells, leases, supplies, or ships goods or services, who
conducts sales or leases of goods or services, or who offers goods or
services for sale or lease. "Vendor" does not include a person
responding to an electronic agent in connection with providing goods
or services to a buyer if the aggregate amount of all transactions
with the buyer does not exceed ten dollars ($10).
(6) "Internet" means the global information system that is
logically linked together by a globally unique address space based on
the Internet Protocol (IP), or its subsequent extensions, and that
is able to support communications using the Transmission Control
Protocol/Internet Protocol (TCP/IP) suite, or its subsequent
extensions, or other IP-compatible protocols, and that provides,
uses, or makes accessible, either publicly or privately, high level
services layered on the communications and related infrastructure
described in this paragraph.
(7) "Electronic agent" means a computer program designed,
selected, or programmed to initiate or respond to electronic messages
or performances without review by an individual.
(f) Any violation of the provisions of this section is a
misdemeanor punishable by imprisonment in the county jail not
exceeding six months, by a fine not exceeding one thousand dollars
($1,000), or by both that imprisonment and fine.
SEC. 28. Section 17762 of the Business and Professions Code is
amended to read:
17762. Any trading stamp company shall redeem upon presentation
any trading stamp that it has issued, either in merchandise, service,
or cash, at the option of the rightful holder. However, if the
trading stamp company only offers to redeem the trading stamp in
cash, the rightful holder of the trading stamp shall not have the
option of receiving merchandise or service and shall only receive a
cash redemption. Trading stamps shall only be presented for
redemption in cash in an amount aggregating not less than one dollar
($1).
SEC. 29. Section 19556 of the Business and Professions Code is
amended to read:
19556. (a) The distribution shall be made by the distributing
agent to beneficiaries qualified under this article. For the
purposes of this article, a beneficiary shall be all of the
following:
(1) A nonprofit corporation or organization entitled by law to
receive a distribution made by a distributing agent.
(2) Exempt or entitled to an exemption from the same taxes
measured by income imposed by this state and the United States as
those under which the distributing agent is exempt or entitled to an
exemption.
(3) Engaged in charitable, benevolent, civic, religious,
educational, or veterans' work similar to that of agencies recognized
by an organized community chest in the State of California, except
that the funds so distributed may be used by the beneficiary for
capital expenditures.
(4) Approved by the board.
(b) At least 20 percent of the distribution shall be made to
charities associated with the horseracing industry. No beneficiary
otherwise qualified under this section to receive charity day net
proceeds shall be excluded on the basis that the beneficiary provides
charitable benefits to persons connected with the care, training,
and running of racehorses, except that type of beneficiary shall make
an accounting to the board within one calendar year of the date of
receipt of any distribution.
SEC. 30. Section 19846A of the Business and Professions Code is
amended to read:
19846A. (a) Every person who, by statute or regulation, is
required to hold a state license shall obtain the license prior to
engaging in the activity or occupying the position with respect to
which the license is required. Every person who, by order of the
commission, is required to apply for a gambling license or a finding
of suitability shall file the application within 30 calendar days
after receipt of the order.
(b) This section shall become operative on the occurrence of one
of the events specified in Section 66 of Chapter 867 of the Statutes
of 1997.
SEC. 31. Section 19847A of the Business and Professions Code is
amended to read:
19847A. (a) Any person who the commission determines is qualified
to receive a state license, having due consideration for the proper
protection of the health, safety, and general welfare of the
residents of the State of California and the declared policy of this
state, may be issued a license. The burden of proving his or her
qualifications to receive any license is on the applicant.
(b) An application to receive a license constitutes a request for
a determination of the applicant's general character, integrity, and
ability to participate in, engage in, or be associated with,
controlled gambling.
(c) In reviewing an application for any license, the commission
shall consider whether issuance of the license is inimical to public
health, safety, or welfare, and whether issuance of the license will
undermine public trust that the gambling operations with respect to
which the license would be issued are free from criminal and
dishonest elements and would be conducted honestly.
(d) This section shall become operative on the occurrence of one
of the events specified in Section 66 of Chapter 867 of the Statutes
of 1997.
SEC. 32. Section 19942 of the Business and Professions Code is
amended to read:
19942. (a) The division, by regulation, shall establish fees for
special licenses authorizing irregular operation of tables in excess
of the total number of tables otherwise authorized to a licensed
gambling establishment, for tournaments and other special events.
(b) This section shall remain in effect only until the occurrence
of one of the events specified in Section 66 of the act that added
this chapter, and as of that date is repealed, unless a later enacted
statute, which is enacted before the occurrence of one of the events
specified in Section 66 of the act that added this chapter, deletes
or extends that date.
SEC. 33. Section 22252.5 of the Business and Professions Code is
amended to read:
22252.5. The Legislature finds and declares that it is important
to inform taxpayers that they may make voluntary contributions to
certain funds or programs, as provided on the state income tax
return. The Legislature further finds and declares that many
taxpayers remain unaware of the voluntary contribution check-offs on
the state income tax return. Therefore, it is the intent of the
Legislature to encourage all persons who prepare state income tax
returns, including tax preparers, to inform their clients in writing,
prior to the completion of any state income tax return, that they
may make a contribution to any voluntary contribution check-off on
the state income tax return if they so choose.
SEC. 34. Section 23817.5 of the Business and Professions Code is
amended to read:
23817.5. (a) (1) The number of premises for which an off-sale
beer and wine license is issued shall be limited to one for each
2,500, or fraction thereof, inhabitants of the city or county in
which the premises are situated. No additional off-sale beer and
wine license, other than a renewal or transfer or as permitted by
Section 23821, shall be issued in any city or county where the number
of premises for which all off-sale beer and wine licenses are issued
is more than one for each 2,500, or fraction thereof, inhabitants of
the city or county.
(2) The number of premises for which an off-sale beer and wine
license is issued in a city and county, in combination with the
number of premises for which an off-sale general license is issued in
a city and county, shall be limited to one for each 1,250, or
fraction thereof, inhabitants of the city and
county in which the premises are situated. No
additional off-sale beer and wine license, other than a renewal or
transfer or as permitted by Section 23821, shall be issued in any
city and county where the number of premises for which all off-sale
beer and wine licenses in combination with off-sale general licenses
are issued is more than one for each 1,250, or fraction thereof,
inhabitants of the city and county.
(b) Notwithstanding subdivision (a), a retail off-sale beer and
wine replacement license shall be issued upon application when all of
the following conditions exist:
(1) The replacement license is only for use at a premises which
was licensed within the past 12 months.
(2) The prior licensee abandoned the premises or the original
license is subject to a bankruptcy proceeding and the prior licensee
has no right to operate at that location. For purposes of this
paragraph, "abandoned" means that the prior licensee is not
exercising dominion or control over the premises.
(3) The application for a replacement license shall be accompanied
by a fee of one hundred dollars ($100).
(c) The following limitations shall apply to the issuance of a
replacement license:
(1) The replacement license shall not be transferred to another
premises.
(2) All conditions imposed on the original license shall apply to
the replacement license.
(3) The original license shall not be transferred subsequent to
the issuance of the replacement license.
SEC. 35. Section 24045.14 of the Business and Professions Code is
amended to read:
24045.14. (a) Notwithstanding any other provision of this
division, the department may issue an on-sale general license to any
maritime museum association that has been organized as a nonprofit
corporation more than 40 years before the date of application, that
owns in its museum inventory not less than three vessels, each of
which is 100 feet or more in length, and that is exempt from the
payment of income taxes under Section 501(c)(3) of the Internal
Revenue Code of 1986.
(b) A maritime museum association holding a license under this
section may sell and serve alcoholic beverages only to persons
attending prearranged events held onboard its vessels while those
vessels are underway or while moored at their home port dock.
(c) A duplicate license shall be required for each vessel in
excess of one if alcoholic beverages are sold on the vessel more than
24 times each year.
(d) The original application shall be accompanied by a fee of five
hundred dollars ($500) and the applicant shall pay an annual renewal
fee and a renewal fee for each duplicate as provided for in
subdivision (34) of Section 23320.
(e) Original licenses may be issued pursuant to this section until
January 1, 1998.
SEC. 36. Section 24045.15 of the Business and Professions Code is
amended to read:
24045.15. (a) Notwithstanding any other provision of this
division, the department may issue a special temporary on-sale or
off-sale wine license to any nonprofit corporation having an
agricultural purpose that is exempt from the payment of income taxes
under Section 501(c)(5) of the Internal Revenue Code of 1986. If the
nonprofit corporation's name, or any name under which the nonprofit
corporation does business, includes the designation of an American
viticultural area (AVA) recognized by the United States Bureau of
Alcohol, Tobacco and Firearms (BATF), as set forth in Part 9
(commencing with Section 9.1) of Title 27 of the Code of Federal
Regulations (27 C.F.R. 9.1 et seq.), the membership of the nonprofit
corporation shall include a majority of the winegrowers located in
the named AVA in order to obtain a license under this section. No
more than one nonprofit corporation located in an AVA is entitled to
obtain a license under this section. The applicant shall accompany
the application with a fee of one hundred dollars ($100).
(b) This special license shall only entitle the licensee to sell
wine donated or sold to the nonprofit corporation by the member
winegrowers to consumers for the purpose of fundraising. The wine
shall bear the brand name of the producing winery. Off-sale
privileges shall be limited to direct mail, telephone, and on-line
computer services. No member winegrower shall donate or sell more
than 75 cases of wine per year to the nonprofit corporation and the
nonprofit corporation shall sell no more than 1,000 cases of wine per
year under the license. If the nonprofit corporation's name or any
name under which the nonprofit corporation does business includes the
designation of an American viticultural area (AVA) recognized by the
United States Bureau of Alcohol, Tobacco and Firearms (BATF), as set
forth in Part 9 (commencing with Section 9.1) of Title 27 of the
Code of Federal Regulations (27 C.F.R. 9.1 et seq.), the wines sold
by the nonprofit corporation must be entitled to use the named AVA as
the appellation of origin. In order to avoid confusion between the
corporation and any winery whose name also includes the designation
of the named AVA, any advertising or solicitation for the sale of
wine under this license by the corporation shall include a statement
disclosing that the corporation is a nonprofit agricultural
organization whose members include individual winegrowers or
grapegrowers and whose purpose is to promote its agricultural region
and improve its grapes and wines. This advertising or solicitation
shall also include a complete roster of the corporation's members and
a list of the brand names, varieties, and vintages of the wines
offered for sale. The wine shall not be sold at less than its minimum
retail price.
(c) This special license shall be for a period not exceeding 60
days. Only one special license authorized by this section shall be
issued to any nonprofit corporation in any 12-month period.
SEC. 37. Section 25503.30 of the Business and Professions Code is
amended to read:
25503.30. (a) Notwithstanding any other provision of this
division, a winegrower or one or more of its direct or indirect
subsidiaries of which the winegrower owns not less than a 51 percent
interest, who manufactures, produces, bottles, processes, imports, or
sells wine and distilled spirits made from grape wine or other grape
products only, under a winegrower's license or any other license
issued pursuant to this division, or any officer or director of, or
any person holding any interest in, those persons may serve as an
officer or director of, and may hold the ownership of any interest or
any financial or representative relationship in, any on-sale
license, or the business conducted under that license, provided that,
except in the case of a holder of on-sale general licenses for
airplanes and duplicate on-sale general licenses for air common
carriers, all of the following conditions are met:
(1) The on-sale licensee purchases all alcoholic beverages sold
and served only from California wholesale licensees.
(2) The number of wine items by brand offered for sale by the
on-sale licensee that are produced, bottled, processed, imported, or
sold by the licensed winegrower or by the subsidiary of which the
winegrower owns not less than 51 percent, or by any officer or
director of, or by any person holding any interest in, those persons
does not exceed 15 percent of the total wine items by brand listed
and offered for sale by the on-sale licensee selling and serving that
wine.
(3) None of the persons specified in this section may have any of
the interests specified in this section in more than two on-sale
licenses.
(b) The Legislature finds that, while this section provides a
limited exception for licensed winegrowers, that limited exception is
granted for specific purposes, and that it is also necessary and
proper that licensed winegrowers maintain the authority granted under
this division to sell wine and brandy to any individual consumer or
any person holding a license authorizing the sale of wine or brandy.
(c) The Legislature finds that it is necessary and proper to
require a separation between manufacturing interests, wholesale
interests, and retail interests in the production and distribution of
alcoholic beverages in order to prevent suppliers from dominating
local markets through vertical integration and to prevent excessive
sales of alcoholic beverages produced by overly aggressive marketing
techniques. The Legislature further finds that the exceptions
established by this section to the general prohibition against tied
interests must be limited to their express terms so as not to
undermine the general prohibition, and the Legislature intends that
this section be construed accordingly.
SEC. 38. Section 1714.45 of the Civil Code is amended to read:
1714.45. (a) In a product liability action, a manufacturer or
seller shall not be liable if both of the following apply:
(1) The product is inherently unsafe and the product is known to
be unsafe by the ordinary consumer who consumes the product with the
ordinary knowledge common to the community.
(2) The product is a common consumer product intended for personal
consumption, such as sugar, castor oil, alcohol, and butter, as
identified in comment i to Section 402A of the Restatement (Second)
of Torts.
(b) This section does not exempt the manufacture or sale of
tobacco products by tobacco manufacturers and their successors in
interest from product liability actions, but does exempt the sale or
distribution of tobacco products by any other person, including, but
not limited to, retailers or distributors.
(c) For purposes of this section, the term "product liability
action" means any action for injury or death caused by a product,
except that the term does not include an action based on a
manufacturing defect or breach of an express warranty.
(d) This section is intended to be declarative of and does not
alter or amend existing California law, including Cronin v. J.B.E.
Olson Corp. (1972), 8 Cal. 3d 121, and shall apply to all product
liability actions pending on, or commenced after, January 1, 1988.
(e) This section does not apply to, and never applied to, an
action brought by a public entity to recover the value of benefits
provided to individuals injured by a tobacco-related illness caused
by the tortious conduct of a tobacco company or its successor in
interest, including, but not limited to, an action brought pursuant
to Section 14124.71 of the Welfare and Institutions Code. In the
action brought by a public entity, the fact that the injured
individual's claim against the defendant may be barred by a prior
version of this section shall not be a defense. This subdivision
does not constitute a change in, but is declaratory of, existing law
relating to tobacco products.
(f) It is the intention of the Legislature in enacting the
amendments to subdivisions (a) and (b) of this section adopted at the
1997-98 Regular Session to declare that there exists no statutory
bar to tobacco-related personal injury, wrongful death, or other tort
claims against tobacco manufacturers and their successors in
interest by California smokers or others who have suffered or
incurred injuries, damages, or costs arising from the promotion,
marketing, sale, or consumption of tobacco products. It is also the
intention of the Legislature to clarify that those claims that were
or are brought shall be determined on their merits, without the
imposition of any claim of statutory bar or categorical defense.
(g) This section shall not be construed to grant immunity to a
tobacco industry research organization.
SEC. 39. Section 2924c of the Civil Code is amended to read:
2924c. (a) (1) Whenever all or a portion of the principal sum of
any obligation secured by deed of trust or mortgage on real property
or an estate for years therein hereafter executed has, prior to the
maturity date fixed in that obligation, become due or been declared
due by reason of default in payment of interest or of any installment
of principal, or by reason of failure of the trustor or mortgagor to
pay, in accordance with the terms of that obligation or of the deed
of trust or mortgage, taxes, assessments, premiums for insurance, or
advances made by the beneficiary or mortgagee in accordance with the
terms of that obligation or of the deed of trust or mortgage, the
trustor or mortgagor or his or her successor in interest in the
mortgaged or trust property or any part thereof, or any beneficiary
under a subordinate deed of trust or any other person having a
subordinate lien or encumbrance of record thereon, at any time within
the period specified in subdivision (e), if the power of sale
therein is to be exercised, or, otherwise at any time prior to entry
of the decree of foreclosure, may pay to the beneficiary or the
mortgagee or their successors in interest, respectively, the entire
amount due, at the time payment is tendered, with respect to (A) all
amounts of principal, interest, taxes, assessments, insurance
premiums, or advances actually known by the beneficiary to be, and
that are, in default and shown in the notice of default, under the
terms of the deed of trust or mortgage and the obligation secured
thereby, (B) all amounts in default on recurring obligations not
shown in the notice of default, and (C) all reasonable costs and
expenses, subject to subdivision (c), that are actually incurred in
enforcing the terms of the obligation, deed of trust, or mortgage,
and trustee's or attorney's fees, subject to subdivision (d), other
than the portion of principal as would not then be due had no default
occurred, and thereby cure the default theretofore existing, and
thereupon, all proceedings theretofore had or instituted shall be
dismissed or discontinued and the obligation and deed of trust or
mortgage shall be reinstated and shall be and remain in force and
effect, the same as if the acceleration had not occurred. This
section does not apply to bonds or other evidences of indebtedness
authorized or permitted to be issued by the Commissioner of
Corporations or made by a public utility subject to the Public
Utilities Code. For the purposes of this subdivision, the term
"recurring obligation" means all amounts of principal and interest on
the loan, or rents, subject to the deed of trust or mortgage in
default due after the notice of default is recorded; all amounts of
principal and interest or rents advanced on senior liens or
leaseholds that are advanced after the recordation of the notice of
default; and payments of taxes, assessments, and hazard insurance
advanced after recordation of the notice of default. If the
beneficiary or mortgagee has made no advances on defaults that would
constitute recurring obligations, the beneficiary or mortgagee may
require the trustor or mortgagor to provide reliable written evidence
that the amounts have been paid prior to reinstatement.
(2) If the trustor, mortgagor, or other person authorized to cure
the default pursuant to this subdivision does cure the default, the
beneficiary or mortgagee or the agent for the beneficiary or
mortgagee shall, within 21 days following the reinstatement, execute
and deliver to the trustee a notice of rescission which rescinds the
declaration of default and demand for sale and advises the trustee of
the date of reinstatement. The trustee shall cause the notice of
rescission to be recorded within 30 days of receipt of the notice of
rescission and of all allowable fees and costs.
No charge, except for the recording fee, shall be made against the
trustor or mortgagor for the execution and recordation of the notice
that rescinds the declaration of default and demand for sale.
(b) (1) The notice of any default described in this section,
recorded pursuant to Section 2924, and mailed to any person pursuant
to Section 2924b, shall begin with the following statement, printed
or typed thereon:
"IMPORTANT NOTICE (14-point boldface type if printed or in
capital letters if typed)
IF YOUR PROPERTY IS IN FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR
PAYMENTS, IT MAY BE SOLD WITHOUT ANY COURT ACTION, (14-point boldface
type if printed or in capital letters if typed) and you may have the
legal right to bring your account in good standing by paying all of
your past due payments plus permitted costs and expenses within the
time permitted by law for reinstatement of your account, which is
normally five business days prior to the date set for the sale of
your property. No sale date may be set until three months from the
date this notice of default may be recorded (which date of
recordation appears on this notice).
This amount is ___________________ as of ______________________,
(Date)
and will increase until your account becomes current.
While your property is in foreclosure, you still must pay other
obligations (such as insurance and taxes) required by your note and
deed of trust or mortgage. If you fail to make future payments on
the loan, pay taxes on the property, provide insurance on the
property, or pay other obligations as required in the note and deed
of trust or mortgage, the beneficiary or mortgagee may insist that
you do so in order to reinstate your account in good standing. In
addition, the beneficiary or mortgagee may require as a condition to
reinstatement that you provide reliable written evidence that you
paid all senior liens, property taxes, and hazard insurance premiums.
Upon your written request, the beneficiary or mortgagee will give
you a written itemization of the entire amount you must pay. You may
not have to pay the entire unpaid portion of your account, even
though full payment was demanded, but you must pay all amounts in
default at the time payment is made. However, you and your
beneficiary or mortgagee may mutually agree in writing prior to the
time the notice of sale is posted (which may not be earlier than the
end of the three-month period stated above) to, among other things,
(1) provide additional time in which to cure the default by transfer
of the property or otherwise; or (2) establish a schedule of payments
in order to cure your default; or both (1) and (2).
Following the expiration of the time period referred to in the
first paragraph of this notice, unless the obligation being
foreclosed upon or a separate written agreement between you and your
creditor permits a longer period, you have only the legal right to
stop the sale of your property by paying the entire amount demanded
by your creditor.
To find out the amount you must pay, or to arrange for payment to
stop the foreclosure, or if your property is in foreclosure for any
other reason, contact:
______________________________________
(Name of beneficiary or mortgagee)
______________________________________
(Mailing address)
______________________________________
(Telephone)
If you have any questions, you should contact a lawyer or the
governmental agency which may have insured your loan.
Notwithstanding the fact that your property is in foreclosure, you
may offer your property for sale, provided the sale is concluded
prior to the conclusion of the foreclosure.
Remember, YOU MAY LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT
ACTION. (14-point boldface type if printed or in capital letters if
typed)"
Unless otherwise specified, the notice, if printed, shall appear
in at least 12-point boldface type.
If the obligation secured by the deed of trust or mortgage is a
contract or agreement described in paragraph (1) or (4) of
subdivision (a) of Section 1632, the notice required herein shall be
in Spanish if the trustor requested a Spanish language translation of
the contract or agreement pursuant to Section 1632. If the
obligation secured by the deed of trust or mortgage is contained in a
home improvement contract, as defined in Sections 7151.2 and 7159 of
the Business and Professions Code, which is subject to Title 2
(commencing with Section 1801), the seller shall specify on the
contract whether or not the contract was principally negotiated in
Spanish and if the contract was principally negotiated in Spanish,
the notice required herein shall be in Spanish. No assignee of the
contract or person authorized to record the notice of default shall
incur any obligation or liability for failing to mail a notice in
Spanish unless Spanish is specified in the contract or the assignee
or person has actual knowledge that the secured obligation was
principally negotiated in Spanish. Unless specified in writing to
the contrary, a copy of the notice required by subdivision (c) of
Section 2924b shall be in English.
(2) Any failure to comply with the provisions of this subdivision
shall not affect the validity of a sale in favor of a bona fide
purchaser or the rights of an encumbrancer for value and without
notice.
(c) Costs and expenses which may be charged pursuant to Sections
2924 to 2924i, inclusive, shall be limited to the costs incurred for
recording, mailing, publishing, and posting notices required by
Sections 2924 to 2924i, inclusive, postponement pursuant to Section
2924g made to either the beneficiary or trustee not to exceed fifty
dollars ($50) per postponement and a fee for a trustee's sale
guarantee or, in the event of judicial foreclosure, a litigation
guarantee. For purposes of this subdivision, a trustee or
beneficiary may purchase a trustee's sale guarantee at a rate meeting
the standards contained in Sections 12401.1 and 12401.3 of the
Insurance Code.
(d) Trustee's or attorney's fees that may be charged pursuant to
subdivision (a), or until the notice of sale is deposited in the mail
to the trustor as provided in Section 2924b, if the sale is by power
of sale contained in the deed of trust or mortgage, or, otherwise at
any time prior to the decree of foreclosure, are hereby authorized
to be in an amount that does not exceed two hundred forty dollars
($240) with respect to any portion of the unpaid principal sum
secured which is fifty thousand dollars ($50,000) or less, plus
one-half of 1 percent of the unpaid principal sum secured exceeding
fifty thousand dollars ($50,000) up to and including one hundred
fifty thousand dollars ($150,000), plus one-quarter of 1 percent of
any portion of the unpaid principal sum secured exceeding one hundred
fifty thousand dollars ($150,000) up to and including five hundred
thousand dollars ($500,000), plus one-eighth of 1 percent of any
portion of the unpaid principal sum secured exceeding five hundred
thousand dollars ($500,000). Any charge for trustee's or attorney's
fees authorized by this subdivision shall be conclusively presumed to
be lawful and valid where the charge does not exceed the amounts
authorized herein. For purposes of this subdivision, the unpaid
principal sum secured shall be determined as of the date the notice
of default is recorded.
(e) Reinstatement of a monetary default under the terms of an
obligation secured by a deed of trust, or mortgage may be made at any
time within the period commencing with the date of recordation of
the notice of default until five business days prior to the date of
sale set forth in the initial recorded notice of sale.
If the sale does not take place on the date set forth in the
initial recorded notice of sale or a subsequent recorded notice of
sale is required to be given, the right of reinstatement shall be
revived as of the date of recordation of the subsequent notice of
sale, and shall continue from that date until five business days
prior to the date of sale set forth in the subsequently recorded
notice of sale.
If the date of sale is postponed on the date of sale set forth in
either an initial or any subsequent notice of sale, or is postponed
on the date declared for sale at an immediately preceding
postponement of sale, and, the postponement is for a period that
exceeds five business days from the date set forth in the notice of
sale, or declared at the time of postponement, then the right of
reinstatement is revived as of the date of postponement and shall
continue from that date until five business days prior to the date of
sale declared at the time of the postponement.
Nothing contained herein shall give rise to a right of
reinstatement during the period of five business days prior to the
date of sale, whether the date of sale is noticed in a notice of sale
or declared at a postponement of sale.
Pursuant to this subdivision, no beneficiary, trustee, mortgagee,
or their agents or successors shall be liable in any manner to a
trustor, mortgagor, their agents or successors for the failure to
allow a reinstatement of the obligation secured by a deed of trust or
mortgage during the period of five business days prior to the sale
of the security property, and no such right of reinstatement during
this period is created by this section. Any right of reinstatement
created by this section is terminated five business days prior to the
date of sale set forth in the initial date of sale, and is revived
only as prescribed herein and only as of the date set forth herein.
As used in this subdivision, the term "business day" has the same
meaning as specified in Section 9.
SEC. 40. Section 3333.4 of the Civil Code is amended and
renumbered to read:
3333.5. (a) Each pipeline corporation that qualifies as a public
utility within Section 216 of the Public Utilities Code that
transports any crude oil or fraction thereof in a public utility oil
pipeline system that meets the requirements of subdivision (h) shall
be absolutely liable without regard to fault for any damages incurred
by any injured party that arise out of, or are caused by, the
discharge or leaking of crude oil or fraction thereof from the public
utility pipeline.
(b) A pipeline corporation is not liable to an injured party under
this section for any of the following:
(1) Damages, other than costs of removal incurred by the state or
a local government caused solely by an act of war, hostilities, civil
war, or insurrection or by an unanticipated grave natural disaster
or other act of God of an exceptional, inevitable, and irresistible
character, other than an earthquake, which damages could not have
been prevented or avoided by the exercise of due care or foresight.
(2) Damages in the proportion caused by the negligence,
intentional malfeasance, or criminal act of the landowner, or an
agent, employee, or contractor of the landowner, upon whose property
the pipeline system is located.
(3) Except as provided by paragraph (2), damages caused
solely by the negligence or intentional malfeasance of the injured
person.
(4) Except as provided by paragraph (2), damages caused solely by
the criminal act of a third party other than the pipeline corporation
or an agent or employee of the pipeline corporation.
(5) Natural seepage from sources other than the public utility oil
pipeline.
(6) Damages that arise out of, or are caused by, a discharge that
is authorized by a state or federal permit.
(c) Damages for which a pipeline corporation is liable under this
section are the following:
(1) All costs of response, containment, cleanup, removal, and
treatment, including, but not limited to, monitoring and
administration costs.
(2) Injury to, or economic losses resulting from destruction of or
injury to, real or personal property.
(3) Injury to, destruction of, or loss of, natural resources,
including, but not limited to, the reasonable cost of rehabilitating
wildlife, habitat, and other resources and the reasonable cost of
assessing that injury, destruction, or loss, in any action brought by
the state, a county, city, or district.
(4) Loss of taxes, royalties, rents, use, or profit shares caused
by the injury, destruction, loss, or impairment of use of real
property, personal property, or natural resources.
(5) Loss of use and enjoyment of natural resources and other
public resources or facilities in any action brought by the state,
county, city, or district.
(d) The court may award reasonable costs of the suit, attorneys'
fees, and the cost of any necessary expert witnesses to any
prevailing plaintiff. The court may award reasonable costs of the
suit, attorneys' fees, and the cost of any necessary expert witnesses
to any prevailing defendant if the court finds that the plaintiff
commenced or prosecuted the suit under this section in bad faith or
solely for purposes of harassing the defendant.
(e) (1) A pipeline corporation shall immediately clean up all
crude oil, or any fraction thereof, that leaks or is discharged from
a pipeline subject to this section. Additionally, the pipeline
corporation shall abate immediately, or as soon as practical, the
effects of the leak or discharge and take all other necessary
remedial action.
(2) A pipeline corporation may recover the costs of the activities
specified in this section for which it is not at fault by means of
any otherwise available cause of action, including, but not limited
to, indemnification or subrogation.
(f) This section shall not apply to claims, or causes of action,
for damages for personal injury or wrongful death.
(g) This section shall not prohibit any party from bringing any
action for damages under any other provision or principle of law,
including but not limited to, common law. However, damages shall not
be awarded pursuant to this section to an injured party to the
extent the same party is or has been awarded damages for the same
injury under any other provision or principle of law.
(h) This section shall only apply to all of the following:
(1) The pipeline system proposed to be constructed by Pacific
Pipeline System, Inc., identified in Public Utilities Commission
Application No. 91-10-013, for which the maximum requirement of one
hundred million dollars ($100,000,000) set forth in paragraph (1) of
subdivision (j) shall apply.
(2) Any other public utility pipeline system for which
construction is completed on or after January 1, 1996, other than a
pipeline system the entire length of which is subject to the
Lempert-Keene-Seastrand Oil Spill Prevention and Response Act,
(Division 7.8 (commencing with Section 8750) of the Public Resources
Code). If part, but not all, of a pipeline system is subject to the
Lempert-Keene-Seastrand Oil Spill Prevention and Response Act, any
evidence of financial responsibility that satisfies that act, and
that meets the conditions of this section, shall be credited toward
the requirements of this section.
(3) Any major relocation of three miles or greater of a portion of
a pipeline system along substantially new alignments accomplished
through the exercise of eminent domain. This section shall not apply
to the portions of the pipeline not relocated.
(i) This section shall not apply to the following:
(1) A pipeline system in existence prior to January 1, 1996, that
is converted to a public utility prior or subsequent to January 1,
1996.
(2) A public utility pipeline system not otherwise subject to this
section, that is the object of repair, replacement or maintenance,
unless that activity constitutes relocation as described in paragraph
(3) of subdivision (h).
(j) (1) No pipeline system subject to this section shall be
permitted to operate unless the State Fire Marshal certifies that the
pipeline corporation demonstrates sufficient financial
responsibility to respond to the liability imposed by this section.
The minimum financial responsibility required by the State Fire
Marshal shall be seven hundred fifty dollars ($750) times the maximum
capacity of the pipeline in the number of barrels per day up to a
maximum of one hundred million dollars ($100,000,000) per pipeline
system, or a maximum of two hundred million dollars ($200,000,000)
per multiple pipeline systems.
(2) For the purposes of this section, financial responsibility
shall be demonstrated by evidence that is substantially equivalent to
that required by regulations issued under Section 8670.37.54 of the
Government Code, including insurance, surety bond, letter of credit,
guaranty, qualification as a self-insurer, or combination thereof or
any other evidence of financial responsibility. The State Fire
Marshal shall require the documentation evidencing financial
responsibility to be placed on file with that office, and shall
administer the documentation in a manner substantially equivalent to
that provided by regulations issued under Section 8670.37.54 of the
Government Code. Financial responsibility shall be available for
payment of claims for damages described in subdivision (c) of any
party, including, but not limited to, the State of California, local
governments, special districts, and private parties, that obtains a
final judgment therefor against the pipeline corporation.
(k) The State Fire Marshal shall require evidence of financial
responsibility to fund postclosure cleanup costs. The evidence of
financial responsibility shall be 15 percent of the amount of
financial responsibility required under subdivision (j) and shall be
maintained by the pipeline corporation for four years from the date
the pipeline is fully idled pursuant to a closure plan approved by
the State Fire Marshal.
(l) "Fraction" of crude oil means a group of compounds collected
by fractional distillation that condenses within the same temperature
band, or a material that consists primarily of that group of
compounds or of a mixture of those groups of compounds.
(m) (1) Notwithstanding Section 228 of the Public Utilities Code,
for purposes of this section, "pipeline corporation" means every
corporation or person directly operating, managing or owning any
pipeline system that qualifies as a public utility within Section 216
of the Public Utilities Code and for compensation within this state.
(2) For purposes of this section, "owning" refers to the legal
entity owning the pipeline system itself and does not include legal
entities having an ownership interest, in whole or in part, in the
entity owning the pipeline system or multiple pipeline systems.
(3) "Pipeline system" means a collective assemblage of intrastate
line pipe, valves, and other appurtenances connected to line pipe,
pumping units, fabricated assemblies associated with pumping units,
metering and delivery station, and fabricated assemblies constructed
for the same purpose at substantially the same time that form a
facility through which crude oil or a fraction thereof moves in
transportation.
SEC. 41. Section 14312 of the Corporations Code is amended to
read:
14312. (a) Any person who intends to offer for sale or lease lots
within a subdivision within this state and to provide water for
domestic use to purchasers of the lots within a subdivision through
the formation of a mutual water corporation described in Section
14311, shall include as part of the application for a public report,
as described in Section 11010 of the Business and Professions Code, a
separate document containing all of the following information,
representations, and assurances:
(1) That the provisions of this chapter have been complied with.
(2) That the area in which the mutual water company proposes to
deliver water encompasses and includes the entire subdivision and,
when applicable, will include parcels to be annexed to the
subdivision.
(3) That the mutual water company has contacted the Public
Utilities Commission and the county local agency formation commission
to determine if the proposed area described in paragraph (2) will
overlap an existing water service area or if an existing water
service area could more appropriately serve the subdivision.
(4) That the mutual water company has a source of, and title to, a
water supply, distribution, and fire protection system sufficient to
satisfy expected demands for water from the subdivision.
(5) That copies of the contracts and other documents relating to
the acquisition by the mutual water company of the water supply,
distribution, and fire protection system have been delivered to, and
are on file with, the mutual water company and that these contracts
and documents evidence the mutual water company's title to the water
supply, distribution, and fire protection system.
(6) That the subdivider or applicant has executed and entered into
a written contract with the mutual water company wherein the
subdivider or applicant has agreed to pay monthly a proportional part
of the repair and replacement fund according to a ratio of the
number of lots owned or controlled by the subdivider or applicant to
the total number of lots in the subdivision.
(7) That an engineer's report has been prepared in accordance with
this chapter and Sections 260.504.2 to 260.504.2.4, inclusive, of
Title 10 of the California Code of Regulations and is on file with
the mutual water company.
(8) That the mutual water company will distribute potable water
for domestic use and has obtained, and has on file, a copy of the
certificate of the State Director of Health Services, as required by
Sections 116300 to 116385, inclusive, of the Health and Safety Code.
(9) That the securities of the mutual benefit water corporation
will be sold or issued only to purchasers of lots in the subdivision,
or to successors in interest of purchasers of lots in the
subdivision, and not sold or issued to the subdivider, applicant, or
to the successor in interest of the subdivider or applicant, and that
the securities will be sold or issued only after a public report for
the subdivision has been issued by the Real Estate Commissioner.
(10) That the securities to be issued by the mutual water company
are appurtenant to the land pursuant to Section 14300.
(11) That the water supply and distribution system will serve each
lot in the subdivision and be completed prior to the issuance of the
public report by the Real Estate Commissioner.
(12) That there is a statement, signed by either the engineer who
prepared the engineer's report referred to in paragraph (7) or a
person employed or acting on behalf of a public agency or other
independent qualified person, that the water supply and distribution
system has been examined and tested and that the water supply and
distribution system operates in accordance with the design standards
of the water supply and distribution system required by this chapter,
and that a copy of this statement is on file with the mutual water
company.
(13) That the articles of incorporation or bylaws of the mutual
water company contain all of the following:
(A) A statement to the effect that the mutual water company shall
provide water to all members or shareholders. If there will be an
owners' association of the subdivision, an additional statement that
water shall also be provided to the common areas.
(B) A provision directing the board of directors to establish a
rate structure that will result in the accumulation and maintenance
of a fund for the repair, administration, maintenance, and
replacement of the water supply, distribution, and fire protection
system, that the rate charged shall bear a reasonable relationship to
the cost of furnishing water and maintaining the system, and that
unimproved lots included within the area to be served shall bear a
proportionate share of the cost of repair and replacement of the
water supply, distribution, and fire protection system, as well as a
proportionate share of the cost of maintaining the fund.
(C) A statement evidencing a reasonable relationship between each
unit of the securities to be issued and each unit of the area to be
served, such as one share of common stock issued for each subdivision
lot purchased.
(D) A prohibition on the issuance of fractional shares or
securities.
(E) A statement, meeting the requirements of Section 14300, that
the securities are appurtenant to the land within the area to be
served.
(F) Provision for the transfer of the securities, voting rights of
the security holders, inspection of books and records by security
holders, necessary or contemplated expansion of the facilities of the
mutual water company, and further subdivision, where applicable, of
the area to be served.
(G) The limitation on the salaries paid to the persons operating,
or employed by, the mutual water company, including officers and
directors.
(H) A provision for annual meetings of the security holders
accompanied by a provision for adequate notice.
(I) A provision for the annual distribution to each security
holder of fiscal yearend financial statements within 105 days of the
close of the fiscal year.
(J) In the case of a mutual water company that purchases water for
distribution from a public utility, municipal water company, or
water district, a provision for charging all security holders a pro
rata amount of the cost of water supplied to an entity providing fire
protection service.
(K) A provision that a share certificate shall be issued to each
lot purchased.
(L) In the case of a mutual water company serving a residential
subdivision, the following statements: (i) the mutual water company
shall be a separate corporation formed and organized for the purpose
described in Section 14311; and (ii) if a shareholder becomes
delinquent in paying assessments, the right to receive water or
dividends may be denied or forfeited but those rights shall not be
sold or transferred without the land.
(14) That an offering circular has been prepared and will be used
in any offer and sale of the securities of the mutual water company.
(15) That the writings and documents evidencing compliance with
all of the above provisions of the subdivision are on file as part of
the permanent record of the mutual water company.
(b) The contracts and documents described in paragraph (5) of
subdivision (a) shall include all of the following:
(1) Any bill of sale transferring all personal property used and
usable in the operation of the mutual water company.
(2) A copy of any recorded deed to the wells and water tanks to be
used by the mutual water company in the supply, distribution, and
fire protection system.
(3) Copies of any recorded deeds granting easements for
construction, repair, maintenance, and improvements of the water
supply, distribution, and fire protection system.
(c) The written contract described in paragraph (6) of subdivision
(a) shall provide that, in consideration of the transfer by the
subdivider or applicant to the mutual water company of the water
supply, distribution, and fire protection system, the mutual water
company agrees to do all of the following:
(1) Sell and issue securities to the purchasers of the remaining
lots in the subdivision on the same terms, except for the price if
the difference is justified, as for the initial purchasers.
(2) Cooperate with the subdivider or applicant in the operation,
maintenance, and improvement of the present and contemplated water
supply, distribution, and fire protection system.
(3) Contract with the subdivider, applicant, or a successor in
interest, if a reasonable request is made to do so, for the
management of the mutual water company for as long as lots in the
subdivision remain unsold. The terms of the contract shall be
subject to approval by the board of directors of the mutual water
company, including terms related to the compensation to the
subdivider, applicant, or successor in interest, if any.
(d) The offering circular described in paragraph (14) of
subdivision (a) shall be delivered to each prospective purchaser of
the securities and shall include, among other things, all of the
following:
(1) A discussion of the water supply, distribution, and fire
protection system.
(2) A summary of the opinion of the engineer along with the
engineer's consent, as required by Sections 260.504.2 to 260.504.2.4,
inclusive, of Title 10 of the California Code of Regulations.
(3) The area in which the mutual water company intends to provide
water service.
(4) A discussion of the rights and duties of the security holders
of the mutual water company as set forth in its articles of
incorporation and bylaws, including the consequence of failure to pay
for water or assessments.
(5) The fact that the articles of incorporation or bylaws provide
that the shares or securities of the mutual water company may not be
sold separately from the right to water evidenced by the security of
the mutual water company and prohibit issuance of fractional shares
or securities of the mutual water company.
(6) A discussion of the certificate issued by the State Director
of Health Services certifying that the water is fit for domestic use.
(7) The limitation imposed on salaries to be paid to personnel
operating, or employed by, the mutual water company, including
officers and directors.
(8) A discussion of the transferability of the securities, the
voting rights of the security holders, access to books and records,
necessary or contemplated expansion of the facilities of the mutual
water company, and further subdivision of the area to be served, if
applicable.
(9) A discussion of the subdivider's duties with respect to
maintenance and repair or replacement of the water supply,
distribution, or fire protection system; and a discussion of the
establishment and maintenance of the operating, repair, and
replacement fund.
(e) The following exhibits shall also be attached to the offering
circular:
(1) A copy of the articles of incorporation and bylaws of the
mutual water company, including the articles or bylaws recorded under
Section 14300.
(2) A copy of financial statements of the mutual water company.
If the mutual water company has not yet commenced operations, a
detailed operating budget for the first six months of operations
should be included as an exhibit to the offering circular. The
operating budget must include estimated monthly fees to be charged to
the water users.
(3) A specimen certificate evidencing the security to be issued
and meeting the requirements of Section 14300.
(f) The Real Estate Commissioner shall prescribe the form and
content of the document required by this section.
SEC. 42. Section 15052 of the Corporations Code is amended to
read:
15052. (a) At the time of registration pursuant to Section 15049,
in the case of a registered limited liability partnership, or
pursuant to Section 15055, in the case of a foreign limited liability
partnership, and at all times during which those partnerships
transact intrastate business, every registered limited liability
partnership and foreign limited liability partnership shall provide
security for claims against it as follows:
(1) For claims based upon acts, errors, or omissions arising out
of the practice of public accountancy, a registered limited liability
partnership or foreign limited liability partnership providing
accountancy services shall comply with one, or pursuant to
subdivision (b) some combination, of the following:
(A) Maintaining a policy or policies of insurance against
liability imposed on or against it by law for damages arising out of
claims in an amount for each claim of at least one hundred thousand
dollars ($100,000) multiplied by the number of licensed persons
rendering professional services on behalf of the partnership.
However, the total aggregate limit of liability under the policy or
policies of insurance for partnerships with fewer than five licensed
persons shall be not less than five hundred thousand dollars
($500,000), and for all other partnerships is not required to exceed
five million dollars ($5,000,000) in any one designated period, less
amounts paid in defending, settling, or discharging claims as set
forth in this subparagraph. The policy or policies may be issued on
a claims-made or occurrence basis, and shall cover (i) in the case of
a claims-made policy, claims initially asserted in the designated
period, and (ii) in the case of an occurrence policy, occurrences
during the designated period. For purposes of this subparagraph,
"designated period" means a policy year or any other period
designated in the policy that is not greater than 12 months. The
impairment or exhaustion of the aggregate limit of liability by
amounts paid under the policy in connection with the settlement,
discharge, or defense of claims applicable to a designated period
shall not require the partnership to acquire additional insurance
coverage for that designated period. The policy or policies of
insurance may be in a form reasonably available in the commercial
insurance market and may be subject to those terms, conditions,
exclusions, and endorsements that are typically contained in those
policies. A policy or policies of insurance maintained pursuant to
this subparagraph may be subject to a deductible or self-insured
retention.
Upon the dissolution and winding up of the partnership, the
partnership shall, with respect to any insurance policy or policies
then maintained pursuant to this subparagraph, maintain or obtain an
extended reporting period endorsement or equivalent provision in the
maximum total aggregate limit of liability required to comply with
this subparagraph for a minimum of three years if reasonably
available from the insurer.
(B) Maintaining in trust or bank escrow, cash, bank certificates
of deposit, United States Treasury obligations, bank letters of
credit, or bonds of insurance or surety companies as security for
payment of liabilities imposed by law for damages arising out of all
claims in an amount of at least one hundred thousand dollars
($100,000) multiplied by the number of licensed persons rendering
professional services on behalf of the partnership. However, the
amount of security for partnerships with fewer than five licensed
persons shall be not less than five hundred thousand dollars
($500,000), and for all other partnerships is not required to exceed
five million dollars ($5,000,000). The partnership remains in
compliance with this subparagraph during a calendar year
notwithstanding amounts paid during that calendar year from the
accounts, funds, Treasury obligations, letters of credit, or bonds in
defending, settling, or discharging claims of the type described in
this paragraph, if the amount of the accounts, funds, Treasury
obligations, letters of credit, or bonds was at least the amount
specified in the preceding sentence as of the first business day of
that calendar year. Notwithstanding the pendency of other claims
against the partnership, a registered limited liability partnership
or foreign limited liability partnership shall be deemed to be in
compliance with this subparagraph as to a claim if within 30 days
after the time that the claim is initially asserted through service
of a summons, complaint, or comparable pleading in a judicial or
administrative proceeding, the partnership has provided the required
amount of security by designating and segregating funds in compliance
with the requirement of this subparagraph.
(C) Unless the partnership has satisfied the requirements of
subparagraph (D), each partner of a registered limited liability
partnership or foreign limited liability partnership providing
accountancy services, by virtue of that person's status as a partner,
thereby automatically guarantees payment of the difference between
the maximum amount of security required for the partnership by this
paragraph and the security otherwise provided in accordance with
subparagraphs (A) and (B), provided that the aggregate amount payable
by all partners under these guarantees shall not exceed the amount
of that difference. Neither withdrawal by a partner nor the
dissolution and winding up of the partnership shall affect the rights
or obligations of a partner arising prior to withdrawal or
dissolution and winding up, and the guarantee provided for in this
subparagraph shall apply only to conduct that occurred prior to the
withdrawal or dissolution and winding up. Nothing contained in this
subparagraph shall affect or impair the rights or obligations of the
partners among themselves, or the partnership, including, but not
limited to, rights of contribution, subrogation, or indemnification.
(D) Confirming, pursuant to the procedure in subdivision (c),
that, as of the most recently completed fiscal year of the
partnership, it had a net worth equal to or exceeding ten million
dollars ($10,000,000).
(2) For claims based upon acts, errors, or omissions arising out
of the practice of law, a registered limited liability partnership or
foreign limited liability partnership providing legal services shall
comply with one, or pursuant to subdivision (b) some combination, of
the following:
(A) Each registered limited liability partnership or foreign
limited liability partnership providing legal services shall maintain
a policy or policies of insurance against liability imposed on or
against it by law for damages arising out of claims in an amount for
each claim of at least one hundred thousand dollars ($100,000)
multiplied by the number of licensed persons rendering professional
services on behalf of the partnership. However, the total aggregate
limit of liability under the policy or
policies of insurance for partnerships with fewer than
five licensed persons shall be not less than five hundred thousand
dollars ($500,000), and for all other partnerships is not required to
exceed seven million five hundred thousand dollars ($7,500,000) in
any one designated period, less amounts paid in defending, settling,
or discharging claims as set forth in this subparagraph. The policy
or policies may be issued on a claims-made or occurrence basis, and
shall cover (i) in the case of a claims-made policy, claims initially
asserted in the designated period, and (ii) in the case of an
occurrence policy, occurrences during the designated period. For
purposes of this subparagraph, "designated period" means a policy
year or any other period designated in the policy that is not greater
than 12 months. The impairment or exhaustion of the aggregate limit
of liability by amounts paid under the policy in connection with the
settlement, discharge, or defense of claims applicable to a
designated period shall not require the partnership to acquire
additional insurance coverage for that designated period. The policy
or policies of insurance may be in a form reasonably available in
the commercial insurance market and may be subject to those terms,
conditions, exclusions, and endorsements that are typically contained
in those policies. A policy or policies of insurance maintained
pursuant to this subparagraph may be subject to a deductible or
self-insured retention.
Upon the dissolution and winding up of the partnership, the
partnership shall, with respect to any insurance policy or policies
then maintained pursuant to this subparagraph, maintain or obtain an
extended reporting period endorsement or equivalent provision in the
maximum total aggregate limit of liability required to comply with
this subparagraph for a minimum of three years if reasonably
available from the insurer.
(B) Each registered limited liability partnership or foreign
limited liability partnership providing legal services shall maintain
in trust or bank escrow, cash, bank certificates of deposit, United
States Treasury obligations, bank letters of credit, or bonds of
insurance or surety companies as security for payment of liabilities
imposed by law for damages arising out of all claims in an amount of
at least one hundred thousand dollars ($100,000) multiplied by the
number of licensed persons rendering professional services on behalf
of the partnership. However, the amount of security for partnerships
with fewer than five licensed persons shall be not less than five
hundred thousand dollars ($500,000), and for all other partnerships
is not required to exceed seven million five hundred thousand dollars
($7,500,000). The partnership remains in compliance with this
subparagraph during a calendar year notwithstanding amounts paid
during that calendar year from the accounts, funds, Treasury
obligations, letters of credit, or bonds in defending, settling, or
discharging claims of the type described in this paragraph, if the
amount of the accounts, funds, Treasury obligations, letters of
credit, or bonds was at least the amount specified in the preceding
sentence as of the first business day of that calendar year.
Notwithstanding the pendency of other claims against the partnership,
a registered limited liability partnership or foreign limited
liability partnership shall be deemed to be in compliance with this
subparagraph as to a claim if within 30 days after the time that the
claim is initially asserted through service of a summons, complaint,
or comparable pleading in a judicial or administrative proceeding,
the partnership has provided the required amount of security by
designating and segregating funds in compliance with the requirements
of this subparagraph.
(C) Unless the partnership has satisfied the requirements of
subparagraph (D), each partner of a registered limited liability
partnership or foreign limited liability partnership providing legal
services, by virtue of that person's status as a partner, thereby
automatically guarantees payment of the difference between the
maximum amount of security required for the partnership by this
paragraph and the security otherwise provided in accordance with the
provisions of subparagraphs (A) and (B); provided, that the aggregate
amount payable by all partners under these guarantees shall not
exceed the amount of that difference. Neither withdrawal by a
partner nor the dissolution and winding up of the partnership shall
affect the rights or obligations of a partner arising prior to
withdrawal or dissolution and winding up, and the guarantee provided
for in this subparagraph shall apply only to conduct that occurred
prior to the withdrawal or dissolution and winding up. Nothing
contained in this subparagraph affects or impairs the rights or
obligations of the partners among themselves, or the partnership,
including, but not limited to, rights of contribution, subrogation,
or indemnification.
(D) Confirming, pursuant to the procedure in subdivision (c),
that, as of the most recently completed fiscal year of the
partnership, it had a net worth equal to or exceeding fifteen million
dollars ($15,000,000).
(b) For purposes of satisfying the security requirements of this
section, a registered limited liability partnership or foreign
limited liability partnership may aggregate the security provided by
it pursuant to subparagraphs (A), (B), (C), and (D) of paragraph (1)
of subdivision (a) or subparagraphs (A), (B), (C), and (D) of
paragraph (2) of subdivision (a), as the case may be. Any registered
limited liability partnership or foreign limited liability
partnership intending to comply with the alternative security
provisions set forth in subparagraph (D) of paragraph (1) of
subdivision (a) or subparagraph (D) of paragraph (2) of subdivision
(a) shall furnish the following information to the office of the
Secretary of State, in the manner prescribed in, and accompanied by
all information required by, the applicable section:
TRANSMITTAL FORM FOR EVIDENCING COMPLIANCE WITH
SECTION 15052(a)(1)(D) OR SECTION 15052(a)(2)(D)
OF THE CALIFORNIA CORPORATIONS CODE
The undersigned hereby confirms the following:
1.
_________________________________________________________________
Name of registered or foreign limited liability partnership
2.
_________________________________________________________________
Jurisdiction where partnership is organized
3.
_________________________________________________________________
Address of principal office
4. The registered or foreign limited liability partnership chooses
to satisfy the requirements of Section 15052 by confirming,
pursuant to Section 15052(a)(1)(D) or 15052(a)(2)(D) and
pursuant to Section 15052(c), that, as of the most recently
completed fiscal year, the partnership had a net worth equal to
or exceeding ten million dollars ($10,000,000), in the case of
a partnership providing accountancy services, or fifteen million
dollars ($15,000,000), in the case of a partnership providing
legal services.
5.
_________________________________________________________________
Title of authorized person executing this form
6.
_________________________________________________________________
Signature of authorized person executing this form
(c) Pursuant to subparagraph (D) of paragraph (1) of subdivision
(a) or subparagraph (D) of paragraph (2) of subdivision (a), a
registered limited liability partnership or foreign limited liability
partnership may satisfy the requirements of this section by
confirming that, as of the last day of its most recently completed
fiscal year, it had a net worth equal to or exceeding the amount
required. In order to comply with this alternative method of meeting
the requirements established in this section, a registered limited
liability partnership or foreign limited liability partnership shall
file an annual confirmation with the office of the Secretary of
State, signed by an authorized member of the registered limited
liability partnership or foreign limited liability partnership,
accompanied by a transmittal form as prescribed by subdivision (b).
In order to be current in a given year, the partnership form for
confirming compliance with the optional security requirement shall be
filed within four months of the completion of the fiscal year and,
upon being filed, shall constitute full compliance with the financial
security requirements for purposes of this section as of the
beginning of the fiscal year. A confirmation filed during any
particular fiscal year shall continue to be effective for the first
four months of the next succeeding fiscal year.
(d) Neither the existence of the requirements of subdivision (a)
nor the extent of compliance by the registered limited liability
partnership or foreign limited liability partnership with the
alternative requirements in this section shall be admissible in court
or in any way be made known to a jury or other trier of fact in
determining an issue of liability for, or to the extent of, the
damages in question.
(e) Notwithstanding any other provision of this section, if a
registered limited liability partnership or foreign limited liability
partnership is otherwise in compliance with the terms of this
section at the time that a bankruptcy or other insolvency proceeding
is commenced with respect to the registered limited liability
partnership or foreign limited liability partnership, it shall be
deemed to be in compliance with this section during the pendency of
the proceeding. A registered limited liability partnership that has
been the subject of a bankruptcy or other insolvency proceeding and
that conducts business after the proceeding ends shall thereafter
comply with paragraph (1) or (2) of subdivision (a), in order to
obtain the limitations on liability afforded by subdivision (b) of
Section 15015.
SEC. 43. Section 16956 of the Corporations Code is amended to
read:
16956. (a) At the time of registration pursuant to Section 16953,
in the case of a registered limited liability partnership, or
pursuant to Section 16959, in the case of a foreign limited liability
partnership, and at all times during which those partnerships
transact intrastate business, every registered limited liability
partnership and foreign limited liability partnership shall provide
security for claims against it as follows:
(1) For claims based upon acts, errors, or omissions arising out
of the practice of public accountancy, a registered limited liability
partnership or foreign limited liability partnership providing
accountancy services shall comply with one, or pursuant to
subdivision (b) some combination, of the following:
(A) Maintaining a policy or policies of insurance against
liability imposed on or against it by law for damages arising out of
claims in an amount for each claim of at least one hundred thousand
dollars ($100,000) multiplied by the number of licensed persons
rendering professional services on behalf of the partnership.
However, the total aggregate limit of liability under the policy or
policies of insurance for partnerships with fewer than five licensed
persons shall be not less than five hundred thousand dollars
($500,000), and for all other partnerships is not required to exceed
five million dollars ($5,000,000) in any one designated period, less
amounts paid in defending, settling, or discharging claims as set
forth in this subparagraph. The policy or policies may be issued on
a claims-made or occurrence basis, and shall cover: (i) in the case
of a claims-made policy, claims initially asserted in the designated
period, and (ii) in the case of an occurrence policy, occurrences
during the designated period. For purposes of this subparagraph,
"designated period" means a policy year or any other period
designated in the policy that is not greater than 12 months. The
impairment or exhaustion of the aggregate limit of liability by
amounts paid under the policy in connection with the settlement,
discharge, or defense of claims applicable to a designated period
shall not require the partnership to acquire additional insurance
coverage for that designated period. The policy or policies of
insurance may be in a form reasonably available in the commercial
insurance market and may be subject to those terms, conditions,
exclusions, and endorsements that are typically contained in those
policies. A policy or policies of insurance maintained pursuant to
this subparagraph may be subject to a deductible or self-insured
retention.
Upon the dissolution and winding up of the partnership, the
partnership shall, with respect to any insurance policy or policies
then maintained pursuant to this subparagraph, maintain or obtain an
extended reporting period endorsement or equivalent provision in the
maximum total aggregate limit of liability required to comply with
this subparagraph for a minimum of three years if reasonably
available from the insurer.
(B) Maintaining in trust or bank escrow, cash, bank certificates
of deposit, United States Treasury obligations, bank letters of
credit, or bonds of insurance or surety companies as security for
payment of liabilities imposed by law for damages arising out of all
claims in an amount of at least one hundred thousand dollars
($100,000) multiplied by the number of licensed persons rendering
professional services on behalf of the partnership. However, the
amount of security for partnerships with fewer than five licensed
persons shall be not less than five hundred thousand dollars
($500,000), and for all other partnerships is not required to exceed
five million dollars ($5,000,000). The partnership remains in
compliance with this subparagraph during a calendar year
notwithstanding amounts paid during that calendar year from the
accounts, funds, Treasury obligations, letters of credit, or bonds in
defending, settling, or discharging claims of the type described in
this paragraph, if the amount of those accounts, funds, Treasury
obligations, letters of credit, or bonds was at least the amount
specified in the preceding sentence as of the first business day of
that calendar year. Notwithstanding the pendency of other claims
against the partnership, a registered limited liability partnership
or foreign limited liability partnership shall be deemed to be in
compliance with this subparagraph as to a claim if within 30 days
after the time that the claim is initially asserted through service
of a summons, complaint, or comparable pleading in a judicial or
administrative proceeding, the partnership has provided the required
amount of security by designating and segregating funds in compliance
with the requirements of this subparagraph.
(C) Unless the partnership has satisfied the requirements of
subparagraph (D), each partner of a registered limited liability
partnership or foreign limited liability partnership providing
accountancy services, by virtue of that person's status as a partner,
thereby automatically guarantees payment of the difference between
the maximum amount of security required for the partnership by this
paragraph and the security otherwise provided in accordance with
subparagraphs (A) and (B), provided that the aggregate amount payable
by all partners under these guarantees shall not exceed the amount
of that difference. Neither withdrawal by a partner nor the
dissolution and winding up of the partnership shall affect the rights
or obligations of a partner arising prior to withdrawal or
dissolution and winding up, and the guarantee provided for in this
subparagraph shall apply only to conduct that occurred prior to the
withdrawal or dissolution and winding up. Nothing contained in this
subparagraph shall affect or impair the rights or obligations of the
partners among themselves, or the partnership, including, but not
limited to, rights of contribution, subrogation, or indemnification.
(D) Confirming, pursuant to the procedure in subdivision (c),
that, as of the most recently completed fiscal year of the
partnership, it had a net worth equal to or exceeding ten million
dollars ($10,000,000).
(2) For claims based upon acts, errors, or omissions arising out
of the practice of law, a registered limited liability partnership or
foreign limited liability partnership providing legal services shall
comply with one, or pursuant to subdivision (b) some combination, of
the following:
(A) Each registered limited liability partnership or foreign
limited liability partnership providing legal services shall maintain
a policy or policies of insurance against liability imposed on or
against it by law for damages arising out of claims in an amount for
each claim of at least one hundred thousand dollars ($100,000)
multiplied by the number of licensed persons rendering professional
services on behalf of the partnership. However, the total aggregate
limit of liability under the policy or policies of insurance for
partnerships with fewer than five licensed persons shall be not less
than five hundred thousand dollars ($500,000), and for all other
partnerships is not required to exceed seven million five hundred
thousand dollars ($7,500,000) in any one designated period, less
amounts paid in defending, settling, or discharging claims as set
forth in this subparagraph. The policy or policies may be issued on
a claims-made or occurrence basis, and shall cover (i) in the case of
a claims-made policy, claims initially asserted in the designated
period, and (ii) in the case of an occurrence policy, occurrences
during the designated period. For purposes of this subparagraph,
"designated period" means a policy year or any other period
designated in the policy that is not greater than 12 months. The
impairment or exhaustion of the aggregate limit of liability by
amounts paid under the policy in connection with the settlement,
discharge, or defense of claims applicable to a designated period
shall not require the partnership to acquire additional insurance
coverage for that designated period. The policy or policies of
insurance may be in a form reasonably available in the commercial
insurance market and may be subject to those terms, conditions,
exclusions, and endorsements that are typically contained in those
policies. A policy or policies of insurance maintained pursuant to
this subparagraph may be subject to a deductible or self-insured
retention.
Upon the dissolution and winding up of the partnership, the
partnership shall, with respect to any insurance policy or policies
then maintained pursuant to this subparagraph, maintain or obtain an
extended reporting period endorsement or equivalent provision in the
maximum total aggregate limit of liability required to comply with
this subparagraph for a minimum of three years if reasonably
available from the insurer.
(B) Each registered limited liability partnership or foreign
limited liability partnership providing legal services shall maintain
in trust or bank escrow, cash, bank certificates of deposit, United
States Treasury obligations, bank letters of credit, or bonds of
insurance or surety companies as security for payment of liabilities
imposed by law for damages arising out of all claims in an amount of
at least one hundred thousand dollars ($100,000) multiplied by the
number of licensed persons rendering professional services on behalf
of the partnership. However, the amount of security for partnerships
with fewer than five licensed persons shall be not less than five
hundred thousand dollars ($500,000), and for all other partnerships
is not required to exceed seven million five hundred thousand dollars
($7,500,000). The partnership remains in compliance with this
subparagraph during a calendar year notwithstanding amounts paid
during that calendar year from the accounts, funds, Treasury
obligations, letters of credit, or bonds in defending, settling, or
discharging claims of the type described in this paragraph, if the
amount of those accounts, funds, Treasury obligations, letters of
credit, or bonds was at least the amount specified in the preceding
sentence as of the first business day of that calendar year.
Notwithstanding the pendency of other claims against the partnership,
a registered limited liability partnership or foreign limited
liability partnership shall be deemed to be in compliance with this
subparagraph as to a claim if within 30 days after the time that the
claim is initially asserted through service of a summons, complaint,
or comparable pleading in a judicial or administrative proceeding,
the partnership has provided the required amount of security by
designating and segregating funds in compliance with the requirement
of this subparagraph.
(C) Unless the partnership has satisfied the requirements of
subparagraph (D), each partner of a registered limited liability
partnership or foreign limited liability partnership providing legal
services, by virtue of that person's status as a partner, thereby
automatically guarantees payment of the difference between the
maximum amount of security required for the partnership by this
paragraph and the security otherwise provided in accordance with the
provisions of subparagraphs (A) and (B); provided, that the aggregate
amount payable by all partners under these guarantees shall not
exceed the amount of that difference. Neither withdrawal by a
partner nor the dissolution and winding up of the partnership shall
affect the rights or obligations of a partner arising prior to
withdrawal or dissolution and winding up, and the guarantee provided
for in this subparagraph shall apply only to conduct that occurred
prior to the withdrawal or dissolution and winding up. Nothing
contained in this subparagraph affects or impairs the rights or
obligations of the partners among themselves, or the partnership,
including, but not limited to, rights of contribution, subrogation,
or indemnification.
(D) Confirming, pursuant to the procedure in subdivision (c),
that, as of the most recently completed fiscal year of the
partnership, it had a net worth equal to or exceeding fifteen million
dollars ($15,000,000).
(b) For purposes of satisfying the security requirements of this
section, a registered limited liability partnership or foreign
limited liability partnership may aggregate the security provided by
it pursuant to subparagraphs (A), (B), (C), and (D) of paragraph (1)
of subdivision (a) or subparagraphs (A), (B), (C), and (D) of
paragraph (2) of subdivision (a), as the case may be. Any registered
limited liability partnership or foreign limited liability
partnership intending to comply with the alternative security
provisions set forth in subparagraph (D) of paragraph (1) of
subdivision (a) or subparagraph (D) of paragraph (2) of subdivision
(a) shall furnish the following information to the office of the
Secretary of State, in the manner prescribed in, and accompanied by
all information required by, the applicable section:
TRANSMITTAL FORM FOR EVIDENCING COMPLIANCE WITH
SECTION 16956(a)(1)(D) OR SECTION 16956(a)(2)(D)
OF THE CALIFORNIA CORPORATIONS CODE
The undersigned hereby confirms the following:
1.
_________________________________________________________________
Name of registered or foreign limited liability partnership
2.
_________________________________________________________________
Jurisdiction where partnership is organized
3.
_________________________________________________________________
Address of principal office
4. The registered or foreign limited liability partnership chooses
to satisfy the requirements of Section 16956 by confirming,
pursuant to Section 16956(a)(1)(D) or 16956(a)(2)(D) and
pursuant to Section 16956(c), that, as of the most recently
completed fiscal year, the partnership had a net worth equal to
or exceeding ten million dollars ($10,000,000), in the case of
a partnership providing accountancy services, or fifteen million
dollars ($15,000,000), in the case of a partnership providing
legal services.
5.
_________________________________________________________________
Title of authorized person executing this form
6.
_________________________________________________________________
Signature of authorized person executing this form
(c) Pursuant to subparagraph (D) of paragraph (1) of subdivision
(a) or subparagraph (D) of paragraph (2) of subdivision (a), a
registered limited liability partnership or foreign limited liability
partnership may satisfy the requirements of this section by
confirming that, as of the last day of its most recently completed
fiscal year, it had a net worth equal to or exceeding the amount
required. In order to comply with this alternative method of meeting
the requirements established in this section, a registered limited
liability partnership or foreign limited liability partnership shall
file an annual confirmation with the office of the Secretary of
State, signed by an authorized member of the registered limited
liability partnership or foreign limited liability partnership,
accompanied by a transmittal form as prescribed by subdivision (b).
In order to be current in a given year, the partnership form for
confirming compliance with the optional security requirement shall be
filed within four months of the completion of the fiscal year and,
upon being filed, shall constitute full compliance with the financial
security requirements for purposes of this section as of the
beginning of the fiscal year. A confirmation filed during any
particular fiscal year shall continue to be effective for the first
four months of the next succeeding fiscal year.
(d) Neither the existence of the requirements of subdivision (a)
nor the extent of compliance by the registered limited liability
partnership or foreign limited liability partnership with the
alternative requirements in this section shall be admissible in court
or in any way be made known to a jury or other trier of fact in
determining an issue of liability for, or to the extent of, the
damages in question.
(e) Notwithstanding any other provision of this section, if a
registered limited liability partnership or foreign limited liability
partnership is otherwise in compliance with the terms of this
section at the time that a bankruptcy or other insolvency proceeding
is commenced with respect to the registered limited liability
partnership or foreign limited liability partnership, it shall be
deemed to be in compliance with this section during the pendency of
the proceeding. A
registered limited liability partnership that has been the subject of
a bankruptcy or other insolvency proceeding and that conducts
business after the proceeding ends shall thereafter comply with
paragraph (1) or (2) of subdivision (a), in order to obtain the
limitations on liability afforded by subdivision (c) of Section
16306.
SEC. 44. Section 11301 of the Education Code is amended to read:
11301. (a) The California Community Colleges and the State
Department of Education shall collaborate with each other and with
their respective local community colleges and local school districts
to ensure the continued success of existing middle college high
schools and to promote the establishment of new middle college high
schools.
(b) The responsibilities of the California Community Colleges and
the State Department of Education pursuant to subdivision (a) shall
include, but need not be limited to, the following:
(1) With respect to existing middle college high schools, monitor
the ongoing viability of the programs, assist with the resolution of
policy or financial issues that may arise, and track specific
outcomes for students and schools, including attendance rates,
graduation rates, college entrance and attendance rates, and
employment rates for those students who do not attend college.
(2) With respect to the promotion of new middle college high
schools, respond to inquiries from school districts and community
colleges about the establishment of middle college high schools,
advise local entities on startup costs and ongoing funding mechanisms
for the program, consult with local entities on the organizational
structure of, and curriculum development for, the middle college high
schools, facilitate the completion of any necessary facilities
improvements, communicate with local entities at least biannually
about the existence of middle college high schools and the
availability of State Department of Education and California
Community Colleges resources, if any, to assist with the
establishment of middle college high schools.
SEC. 45. Section 17016 of the Education Code is amended to read:
17016. (a) The board, by the adoption of rules, may establish
priorities for the construction and leasing of projects to those
school districts the pupils of which will benefit most. The board
may make exceptions from established priorities when it determines
that to do so will benefit the pupils affected.
(b) The board may adopt rules establishing priorities for the
acquisition and leasing of portable classrooms to county
superintendents of schools that will most benefit pupils needing a
county community school. The board shall require each county
superintendent of schools who leases portable classrooms pursuant to
Section 17017.2 to demonstrate that the portable classrooms are
utilized solely for operation of a county community school.
SEC. 46. Section 17203.5 of the Education Code is amended to read:
17203.5. Notwithstanding any other provision of law, to be
eligible for funding under this chapter pursuant to Section 17203, a
school district shall comply with the following:
(a) In the 1997-98 fiscal year, identify by grade level all
available teaching stations in the schools in the school district
that serve kindergarten or any grades 1 to 6, inclusive. For the
purposes of this section, "teaching station" shall be determined as
specified in Sections 17042.5 and 17042.7.
(b) Notwithstanding paragraphs (1) to (3), inclusive, of
subdivision (b) of Section 52122.1, in the 1997-98 fiscal year, for
the purposes only of determining eligibility for funding under
subdivisions (c) to (i), inclusive, of Section 52122.1, a school
district is not required to count teaching stations at a schoolsite
leased to outside agencies prior to July 1, 1996.
SEC. 47. Section 17591 of the Education Code is amended to read:
17591. Each district desiring an apportionment pursuant to
Section 39619 shall file with the State Allocation Board and receive
approval of a five-year plan of the maintenance needs of the district
over that five-year period. This plan may be amended from time to
time. Any expenditure of funds from the district deferred
maintenance fund shall conform to the plan approved by the State
Allocation Board.
SEC. 48. Section 17883 of the Education Code is amended and
renumbered to read:
17183. (a) From time to time, the authority may, by resolution,
issue its revenue bonds in order to provide funds for any of the
purposes of this chapter. Bonds may be issued to finance any of the
following:
(1) A single project or financing of working capital for a single
participating district.
(2) A series of projects or financings of working capital for a
single participating district.
(3) A single project or financing of working capital for several
participating districts.
(4) Several projects or financing of working capital for several
participating districts.
(5) A joint venture school facilities construction project
undertaken pursuant to Article 5 (commencing with Section 17060) of
Chapter 12.
(b) Except as otherwise expressly provided by the authority, all
revenue bonds shall be payable from any available revenues or moneys
of the authority not otherwise pledged, subject only to any
agreements with holders of particular bonds or notes pledging any
particular revenue or moneys. Notwithstanding that revenue bonds
issued pursuant to this section may be payable from a special fund,
the revenue bonds shall be, and shall be deemed to be for all
purposes, negotiable instruments, subject only to the provisions of
the revenue bonds for registration.
(c) The revenue bonds of the authority may be issued as serial
bonds, term bonds, or the authority, in its discretion, may issue
bonds of both types. The issuance shall be in accordance with the
indenture, trust agreement, or resolution relating to the revenue
bonds, which shall provide all of the following:
(1) The date or dates of the bonds.
(2) The date or dates upon which the bonds will mature, not to
exceed 40 years from their respective dates.
(3) The interest rate or rates, or methods of determining the
interest rate or rates, of the bonds.
(4) When the bonds are payable.
(5) The denominations of the bonds.
(6) The form of the bonds, which shall be either bearer or
registered.
(7) The registration privileges of the bonds.
(8) The manner in which the bonds are to be executed.
(9) The place or places at which the bonds shall be payable in
lawful money of the United States of America.
(10) The terms of redemption of the bonds.
(d) After giving due consideration to the recommendations of the
participating district or districts, the revenue bonds of the
authority shall be sold by the Treasurer at either a public or
private sale at a price or prices, and upon the terms and conditions
prescribed by the authority. The revenue bonds of the authority may
be sold at, above, or below the par value of the bonds.
(e) Pending the preparation of the definitive bonds, the authority
may issue interim receipts or certificates or temporary bonds which
shall be exchanged for the definitive bonds.
(f) Any resolution authorizing the issuance of any bonds of the
authority, or any issue of revenue bonds of the authority, may
include any of the following provisions:
(1) Provisions pledging all or any part of the proceeds of the
bonds or revenue of a project or loan.
(2) Provisions concerning the replacement of mutilated, destroyed,
stolen, or lost bonds.
(3) Provisions specifying insurance to be maintained on the
project and the authorized uses of the proceeds of the insurance.
(4) Covenants against the mortgaging or otherwise encumbering,
selling, leasing, pledging, placing a charge upon, or otherwise
disposing of the project prior to the payment of the bonds issued to
finance the project.
(5) Provisions specifying the events of default, terms upon which
the bonds may be declared due before maturity, and the terms upon
which the declaration and its consequences may be waived.
(6) The rights, liabilities, powers, and duties arising upon the
breach of any covenants, conditions, or obligations.
(7) Vesting of the right to enforce covenants in a trustee.
(8) The terms upon which all or any percentage of the bondholders
may enforce covenants or duties.
(9) Procedures for amending the terms of the resolution, with or
without the consent of the holders of a specified number of bonds.
(10) Provision for any other acts or things deemed necessary,
convenient, or desirable by the authority to secure the bonds or
improve their marketability.
(g) The validity of the authorization and issuance of any bond
issue shall not be affected by proceedings for the acquisition,
construction, or improvement of any project, or by contracts relating
to those proceedings. Any resolution authorizing the issuance of
any bonds of the authority may provide authorization for the bonds to
bear a statement certifying that they are issued pursuant to this
chapter. Bonds bearing that statement shall be conclusively deemed
valid and issued in conformity with this chapter. Reference on the
face of the bonds to the resolution by its date of adoption shall
incorporate the provisions of the resolution and of this chapter into
the terms of the bonds.
(h) Members of the authority, or any person executing the revenue
bonds of the authority, shall not incur personal liability on the
bonds, nor shall these persons incur personal liability or
accountability by reason of the issuance of the revenue bonds of the
authority.
(i) The authority is authorized, out of any funds available for
that purpose, to purchase revenue bonds of the authority. The
authority may hold, pledge, cancel, or resell any bonds purchased
under the authority of this subdivision, subject to, and in
accordance with, agreements with bondholders.
(j) The financing or refinancing of projects or working capital
may be provided pursuant to this chapter by means other than revenue
bonds, at the discretion of the authority, including financing or
refinancing through certificates of participation, or other
interests, in bonds, loans, leases, installment sales, or other
agreements of the participating district or districts. In this
connection, the authority may do all things and execute and deliver
all documents and instruments as may be necessary or desirable with
regard to issuance of the certificates of participation or other
means of financing or refinancing.
(k) The authority may by resolution issue its revenue bonds in the
form of commercial paper.
SEC. 49. Section 19116 of the Education Code is amended to read:
19116. (a) Sections 19104 and 19105 are not applicable to the
withdrawal of a city or library district from the county free library
system in Los Angeles County or Riverside County. The legislative
body of any city or the board of trustees of any library district,
whose jurisdiction is within the County of Los Angeles or the County
of Riverside, may notify the board of supervisors for Los Angeles
County or Riverside County, as appropriate, that the city or library
district no longer desires to be a part of the county free library
system. The notice shall state whether the city or library district
intends to acquire property pursuant to subdivision (c). The board
of supervisors shall transmit a copy of the notice to the Los Angeles
County Assessor or Riverside County Assessor, as appropriate, the
Los Angeles County Auditor or Riverside County Auditor, as
appropriate, and the State Board of Equalization.
(b) When a city or library district files a notice pursuant to
subdivision (a), it shall remain a member of the county free library
system until July 1 of the base year or the date on which property is
transferred pursuant to subdivision (c), whichever date is later.
Upon ceasing to be a member of the county free library system, the
city or library district shall not participate in any benefits of the
county free library system, and shall assume the responsibility for
the provision of library services within its jurisdiction. Unless
otherwise agreed by July 1 of the base year in writing by the Board
of Supervisors of Los Angeles County or the Board of Supervisors of
Riverside County, as appropriate, and the withdrawing city or library
district, an amount of property tax revenue equal to the property
tax revenues allocated to the county free library pursuant to Article
2 (commencing with Section 96) of Chapter 6 of Part 0.5 of Division
1 of the Revenue and Taxation Code in the fiscal year prior to the
base year and that were derived from property situated within the
boundaries of the withdrawing entity shall be allocated to and used
to maintain library services by the withdrawing entity in the base
year and, adjusted forward, in each fiscal year thereafter at the
same time allocations are made pursuant to Article 2 (commencing with
Section 96) of Chapter 6 of Part 0.5 of Division 1 of the Revenue
and Taxation Code. This subdivision shall not apply to property tax
revenues that have been pledged to repay bonded indebtedness of the
county free library.
(c) If there are one or more county library facilities within the
territorial boundaries of the withdrawing entity at the time the
withdrawing entity provides notice pursuant to subdivision (a), the
withdrawing entity shall have the right to acquire any or all of
those facilities from the county and the county shall, no later than
July 1 of the base year, transfer to the withdrawing entity each
facility to be acquired and the personal property therein related to
the provision of library services. If the facility or personal
property was purchased with bond proceeds or other forms of
indebtedness, acquisition shall only take place if the withdrawing
entity assumes any remaining indebtedness and in no way impairs the
repayment thereof. If the withdrawing entity opts not to acquire any
facilities or personal property, the county at its discretion may
dispose of the facilities or personal property or convert the use of
those facilities or personal property, including transferring
collections and other personal property to other sites and converting
facilities to other purposes. If the withdrawing entity opts to
acquire any facilities or personal property, the acquisition prices
shall be as follows unless otherwise provided for by statute or
contract:
(1) Each county library facility which, for the purposes of this
section, shall include the real property upon which the facility is
located and any fixtures therein and shall not include computer
systems and software, shall be transferred for the lesser of:
(A) No cost, if the facility was donated to the county by the
withdrawing entity.
(B) The price paid to the withdrawing entity by the county for the
facility, if the county bought the facility from the withdrawing
entity. However, if the county constructed capital improvements to
the facility after it was bought from the withdrawing entity, the
county's total out-of-pocket costs for the capital improvement
excluding any costs for routine repairs, restoration or maintenance,
shall be added to the price.
(C) The fair market value of the facility. However, if any
portion of the facility was donated to the county by the withdrawing
entity or if any moneys were donated by the withdrawing entity
towards the county's construction or acquisition of the facility or
any portion thereof, the value of the donation shall be subtracted
from the fair market value.
(2) Any personal property within the facility related to the
provision of library services, including books and resource
materials, computer systems and software, furniture, and furnishings,
shall be transferred for the lesser of:
(A) No cost, if the property was donated to the county by the
withdrawing entity.
(B) The fair market value of the personal property. However, on
or before the March 1 preceding the July 1 of the base year, the
county librarian may designate collections of resource books and
materials that are unique in, and integral to, the county free
library system to be special collections. The special collections
shall be acquired by the withdrawing entity only upon mutually
agreeable terms and conditions.
(d) If a facility transferred pursuant to subdivision (c) serves
residents of surrounding jurisdictions, the board of supervisors
governing the county free library system may require, as a condition
of transferring the facility, that the library services provided by
the withdrawing entity to its residents also be available on the same
basis to the residents of the surrounding jurisdictions. However,
if the withdrawing entity contributes to the provision of library
services from other city funds, or through taxes, assessments, or
fees of its residents, the withdrawing entity may provide additional
services to its residents. If the requirement to provide regional
services is imposed and, unless otherwise agreed in writing by the
county and the withdrawing entity by July 1 of the base year, an
amount of property tax revenues equal to the property tax revenues
derived from property situated in the surrounding jurisdictions which
were, in the fiscal year prior to the base year, allocated to the
county free library system pursuant to Article 2 (commencing with
Section 96) of Chapter 6 of Part 0.5 of Division 1 of the Revenue and
Taxation Code shall be allocated to and used to maintain library
services by the withdrawing entity in the base year and, adjusted
forward, in each fiscal year thereafter at the same time other
allocations are made pursuant to Article 2 (commencing with Section
96) of Chapter 6 of Part 0.5 of Division 1 of the Revenue and
Taxation Code. This subdivision shall not apply to property tax
revenues that have been pledged to repay bonded indebtedness. If a
surrounding jurisdiction subsequently provides notice of its intent
to withdraw from the county free library system pursuant to
subdivision (a), on the date the surrounding jurisdiction ceases to
participate in the benefits of the county free library system
pursuant to subdivision (b), the withdrawing entity shall no longer
be required to make library services available to the residents of
the surrounding jurisdiction and property tax revenues derived from
property situated in the surrounding jurisdiction shall no longer be
allocated to the withdrawing entity pursuant to this subdivision.
(e) For purposes of this section, the following terms are defined
as follows:
(1) "Base year" means the fiscal year commencing on the July 1
following the December 2 following the date of the notice given
pursuant to subdivision (a) of this section.
(2) "Fair market value" means:
(A) Any value agreed upon by the withdrawing entity and the
county.
(B) If no agreement as to value is reached by the March 1
preceding the July 1 of the base year, the value assigned by an
appraiser agreed upon by the withdrawing entity and the county.
(C) If no agreement as to the appointment of an appraiser is
reached pursuant to subparagraph (B) by the April 1 preceding the
July 1 of the base year, the value assigned by an appraiser agreed
upon between the withdrawing entity's appraiser and the county's
appraiser.
(D) If no agreement as to the appointment of an appraiser is
reached pursuant to subparagraph (C) by the May 1 preceding the July
1 of the base year, the value assigned by a state certified appraiser
designated by the withdrawing entity. The designated appraiser
shall provide the appraisal in writing to the county no later than
the June 1 preceding the July 1 of the base year.
(E) The withdrawing entity shall reimburse the county for any
appraisal costs the county incurs in determining the fair market
value pursuant to this section.
(3) "Surrounding jurisdictions" means cities and library districts
that are adjacent to the withdrawing entity and tax rate areas in
unincorporated areas of the county which tax rate areas are wholly or
partially within the withdrawing entity's sphere of influence, which
cities, libraries, and tax rate areas are within the county free
library system and have no facility within their territorial
boundaries providing library services at the time the withdrawing
entity provides notice pursuant to subdivision (a).
SEC. 50. Section 27405 of the Education Code is amended to read:
27405. Upon the legal separation or dissolution of marriage of a
participant, the court may include in the judgment or court order a
determination of the community property rights of the parties in the
participant's annuity consistent with this section. Upon election
under subparagraph (B) of paragraph (3) of subdivision (a) of Section
2610 of the Family Code, the court order awarding the nonparticipant
spouse a community property share in the benefits of a participant
receiving an annuity shall be consistent with this section.
(a) If the court does not award the entire annuity to the
participant and the participant is receiving an annuity under
paragraph (1) or (2) of subdivision (b) of Section 26807, the court
shall require only that the system pay from the plan the
nonparticipant spouse, by separate warrant, his or her community
property share of the participant's annuity, or the option
beneficiary's annuity or both.
(b) The nonparticipant spouse may designate a beneficiary to
receive his or her community property share of the participant's
annuity.
SEC. 51. Section 44279.7 of the Education Code is amended to read:
44279.7. (a) The superintendent and the commission shall award
supplemental grants on a competitive basis to Beginning Teacher
Support and Assessment System teacher induction programs established
pursuant to Section 44279.2 that are identified as having expertise
according to criteria established by the superintendent and the
commission. The supplemental grants received pursuant to this
section shall be expended to assist clusters of teacher induction
programs operated by school districts or consortiums of school
districts.
(b) The superintendent and the commission shall designate each
school district and consortium of school districts participating in
the Beginning Teacher Support and Assessment System established
pursuant to Section 44279.2 as belonging to a cluster according to
the criteria established pursuant to this subdivision. For the
purposes of this section "cluster" means a cluster of school
districts or consortium of school districts established pursuant this
section. The superintendent and the commission shall establish
criteria for the formation of school districts or consortiums of
school district teacher induction program clusters based upon, but
not necessarily be limited to, all of the following:
(1) Geographic proximity.
(2) Program size.
(3) The number of beginning teachers served.
(4) The similarity of teacher characteristics and pupil
populations in each school district.
(c) School districts and consortiums of school districts awarded
supplemental grants pursuant to this section shall identify a teacher
induction program consultant to assist the school district or
consortiums of school districts forming a cluster. The
superintendent and the commission shall identify the purpose and
functions of each consultant. Those purposes and functions shall
include, but not necessarily be limited to, all the following:
(1) Assisting in designing, implementing, refining, and evaluating
their teacher induction programs.
(2) Assisting in building the capacity to provide professional
development for all personnel involved in the implementation of
teacher induction programs, including, but not limited to, beginning
teachers, support providers, and administrators.
(3) Disseminating information on teacher induction programs to all
interested participants within the cluster and collaborating with
other consultants statewide and with state administrative agency
staff to ensure ongoing program improvement.
(d) The superintendent and the commission shall ensure that each
grant awarded pursuant to this section supports the salary and
benefits and other related costs based on the prorated amount of time
dedicated to this function for a consultant to assist each cluster.
SEC. 52. Section 44306 of the Education Code is amended to read:
44306. The commission shall submit an interim report to the
Legislature and the Legislative Analyst no later than October 1,
2000, and a final report no later than October 1, 2001, to include
the following information regarding the Pre-Internship Teaching
Program:
(a) The number of participating school districts and pre-intern
teachers served.
(b) The impact of the program on decreasing the number of
emergency permits issued.
(c) The retention rates of pre-intern teachers, as compared to the
retention rates of emergency permitholders.
(d) The success rates of pre-intern teachers, by year of
participation in the program, in meeting requirements for subject
matter knowledge required by law.
(e) Assessments by pre-interns of the effectiveness of the
pre-intern preparation, support and assistance provided.
(f) A description of in-kind contributions to the pre-intern
teaching program provided by participating school districts.
(g) Recommendations regarding whether the Pre-Internship Teaching
Program should be continued, modified, or discontinued, including
reasons for those recommendations.
SEC. 53. Section 44308 of the Education Code is amended to read:
44308. (a) Funding for the purposes of administering the program
established pursuant to this article is contingent upon an
appropriation in the Budget Act or other act.
(b) It is the intent of the Legislature that federal funding
provided to the State Department of Education and the Commission on
Teacher Credentialing in Item 6110-001-0890 and Item 6360-001-0407 be
adjusted to provide direct funding for the Commission on Teacher
Credentialing for the purposes of the Pre-Internship Teaching Program
and the California Paraprofessional Teacher Training Program. The
Department of Finance shall make those adjustments using authority of
Section 1.50 of the Budget Act of 1997.
(c) If funds are provided for this act from the federal Goals
2000: Educate America Act (P.L. 103-227) and if the provisions of
this article do not meet the requirements of that federal act, the
State Department of Education shall be held harmless for any fiscal
penalty exacted by the federal
government for the expenditures made by local education
agencies or for state operations.
SEC. 54. Section 44759.4 of the Education Code is amended to read:
44759.4. The Superintendent of Public Instruction shall
administer the grant application process. School district
applications shall include the following:
(a) Certification by the governing board of the school district
that the requirements of Section 44759 or 44759.2, or both as
appropriate, and Section 44759.3 shall be met.
(b) A description of how the school district shall address the
following:
(1) Augmentation of resources for reading instruction staff
development through the use of staff development days authorized
pursuant to Section 44670.6.
(2) Augmentation of resources for reading instruction staff
development through the use of funds available from other state and
federal sources.
(3) Augmentation of resources for reading instruction staff
development through the use of training provided by publishers that
address the subjects contained in subdivision (e) of Section 44759.
(4) Involvement of the parents and guardians of pupils enrolled in
the school district.
(5) Ensuring that teachers are provided time to collaborate,
discuss, and reflect on, and to the degree possible, be coached on,
the classroom implementation of what has been provided in staff
development sessions.
(6) Ensuring that implementation of training and pupil results
relative to grade-level standards in reading are monitored to ensure
a positive impact of the training.
SEC. 55. Section 52122 of the Education Code is amended to read:
52122. (a) Except as otherwise provided by Section 52123, any
school district that maintains any kindergarten or any of grades 1 to
3, inclusive, may apply to the Superintendent of Public Instruction
for an apportionment to implement a class size reduction program in
that school district in kindergarten and any of the grades designated
in this chapter.
(b) An application submitted pursuant to this chapter shall
identify both of the following:
(1) Each class that will participate in the Class Size Reduction
Program.
(2) For each class that will participate in the Class Size
Reduction Program, whether that class will operate under Option One
or Option Two:
(A) (i) Option One: A school district shall provide a reduced
class size for all pupils in each classroom for the full regular
schoolday in each grade level for which funding is claimed. For the
purposes of this chapter, "full regular schoolday" means a
substantial majority of the instructional minutes per day, but shall
permit limited periods of time during which pupils are brought
together for a particular phase of education in groups that are
larger than 20 pupils per certificated teacher. It is the intent of
the Legislature that those limited periods of time be kept to a
minimum and that instruction in reading and mathematics not be
delivered during those limited periods of time. For the purposes of
this subparagraph, "class" shall be defined in the same manner as
provided in the regulations adopted by the Superintendent of Public
Instruction prior to July 1, 1996, pursuant to Sections 41376 and
41378 (subdivision (a) of Section 15103 of Title 5 of the California
Code of Regulations).
(ii) The purpose of the Class Size Reduction Program is to ensure
that children in public school in kindergarten and grades 1 to 3,
inclusive, receive instruction in classrooms where there are not more
than 20 students. In order to qualify for funding pursuant to this
chapter, each class in the Class Size Reduction Program shall be
maintained with an annual average class size of not more than 20
pupils for the instructional time which qualifies the class for
funding pursuant to this chapter. Nothing in this chapter shall be
construed to prohibit the class size from exceeding 20 pupils on any
particular day, provided the average class size for the school year
does not exceed 20.
(B) (i) Option Two: A school district shall provide a reduced
class size for all pupils in each classroom for at least one-half of
the instructional minutes offered per day in each grade level for
which funding is claimed. School districts selecting this option
shall primarily devote those instructional minutes to the subject
areas of reading and mathematics. For the purposes of this
subparagraph, "class" shall be defined in the same manner as provided
in the regulations adopted by the Superintendent of Public
Instruction prior to July 1, 1996, pursuant to Sections 41376 and
41378 (subdivision (a) of Section 15103 of Title 5 of the California
Code of Regulations).
(ii) The purpose of the Class Size Reduction Program is to ensure
that children in public school in kindergarten and grades 1 to 3,
inclusive, receive instruction in classrooms where there are not more
than 20 students. In order to qualify for funding pursuant to this
chapter, each class in the Class Size Reduction Program shall be
maintained with an annual average class size of not more than 20
pupils for the instructional time which qualifies the class for
funding pursuant to this chapter. Nothing in this chapter shall be
construed to prohibit the class size from exceeding 20 pupils on any
particular day, provided the average class size for the school year
does not exceed 20.
(c) A school district that intends to implement a Class Size
Reduction Program for the 1996-97 school year shall submit an
application for funds pursuant to this chapter to the Superintendent
of Public Instruction not later than November 1, 1996. To receive
the total amount of funding in the 1996-97 school year for which the
school district is eligible pursuant to Section 52126, a school
district shall implement the Class Size Reduction Program by February
16, 1997, within the meaning of paragraph (2) of subdivision (b).
(d) A school district that intends to implement or continue to
implement a Class Size Reduction Program for the 1997-98 school year
and any subsequent school year shall submit an application for
funding pursuant to this chapter to the Superintendent of Public
Instruction not later than 90 days after the annual Budget Act is
chaptered, unless otherwise specified in regulations adopted by the
State Board of Education.
(e) For the 1997-98 school year, a school district that is either
implementing or expanding a class size reduction program pursuant to
this chapter may receive funding pursuant to this chapter even if the
new classes for which funding is sought are not implemented at the
beginning of the 1997-98 school year, provided that, for each new
class in the Class Size Reduction Program, all of the following
criteria are met:
(1) The teacher for each new class is hired and placed on the
school district's payroll by November 1, 1997.
(2) Each teacher for a new class has begun to receive the training
required by this chapter on or before February 16, 1998.
(3) All other requirements of this chapter are satisfied by
February 16, 1998, and continue to be satisfied for the remainder of
the 1997-98 school year.
(f) For the 1997-98 school year, the number of new classes in the
Class Size Reduction Program is the number of classes satisfying the
requirements of this chapter minus the number of classes funded in
the Class Size Reduction Program pursuant to this chapter in the
1996-97 school year.
(g) Any school district that chooses to reduce class size through
the use of an early-late instructional program is ineligible to also
use Section 46205, relating to the computation of instructional time
for purposes of the Incentive for Longer Instructional Day and Year,
in any grade level for which class size reduction funding is received
pursuant to this chapter; provided, however, that any school
district that operated under Section 46205 prior to July 1, 1996, may
receive class size reduction funding pursuant to Option One in any
grade level for which class size reduction funding would otherwise be
received pursuant to Option One.
SEC. 56. Section 52122.1 of the Education Code is amended to read:
52122.1. (a) A school district applying to implement the Class
Size Reduction Program in additional classes in the 1997-98 school
year may request that a portion of the maximum operating funds for
which the school district would be eligible if fully reducing class
size in kindergarten and in grades 1 to 3, inclusive, pursuant to the
provisions of subparagraph (A) of paragraph (2) of subdivision (b)
of Section 52122, be used for facilities-related costs necessary for
new classes established under this program beyond those established
in the 1996-97 school year.
(b) An application made pursuant to this section, the form of
which shall be developed by the Superintendent of Public Instruction
not later than 30 days after the Budget Act of 1997 is chaptered,
shall be submitted by each school district that elects to apply for
funding under this section not later than 90 days after the Budget
Act of 1997 is chaptered, and shall include certification by the
governing board of the school district that, in the 1997-98 school
year, the school district can show one of the following:
(1) In the 1996-97 fiscal year, the school district received
funding for the Class Size Reduction Facilities Funding Program
pursuant to Chapter 19 (commencing with Section 17200) of Part 10.
(2) The school district is qualified as of the date of the
application for new construction funding under the Leroy F. Greene
State School Building Lease-Purchase Law of 1976 (Chapter 12
(commencing with Section 17000) of Part 10) on a districtwide basis
or for the relevant school attendance area, as defined in Section
17041.
(3) The school district has insufficient classroom space to house
all the new classes that need to be established in order for the
district to participate in the Class Size Reduction Program contained
in this chapter, as demonstrated through the eligibility calculation
specified in Section 17203 that shall be certified by the governing
board of the school district, adjusted to exclude new teaching
stations established in the 1996-97 school year for this program.
(c) School districts requesting funds for facilities pursuant to
this section are eligible to receive forty thousand dollars ($40,000)
for each new teaching station that is needed to be established for
the purpose of expanding the Class Size Reduction Program in the
1997-98 school year beyond the number of new classes established in
the 1996-97 school year pursuant to the provisions of subparagraph
(A) of paragraph (2) of subdivision (b) of Section 52122.
(1) The maximum amount of funds a school district may receive for
both operation funds, pursuant to subparagraphs (A) and (B) of
paragraph (2) of subdivision (b) of Section 52122, and facility funds
provided by this section, is limited to the number of pupils in
kindergarten through grades 1 to 3, inclusive, multiplied by the
Option One stipend specified in Section 52126.
(2) The maximum initial apportionment for facilities-related costs
available to a school district under this section shall be
calculated as follows:
(A) Multiply the district's certified enrollment in kindergarten
and grades 1 to 3, inclusive, as of October of the previous school
year by the per pupil stipend for the 1997-98 school year established
in subdivision (a) of Section 52126.
(B) Subtract from the amount determined in subparagraph (A) the
product of the number of pupils the district certifies will be in a
class which satisfies the provisions of subparagraph (A) of paragraph
(2) of subdivision (b) of Section 52122 during the 1997-98 school
year times the per pupil stipend for the 1997-98 school year in
subdivisions (a) and (c) of Section 52126.
(C) Subtract from the amount determined in subparagraph (B) the
product of the number of pupils the district certifies will be in a
class which satisfies the provisions of subparagraph (B) of paragraph
(2) of subdivision (b) of Section 52122 during the 1997-98 school
year times the per pupil stipend for the 1997-98 school year in
subdivisions (b) and (d) of Section 52126.
(D) In no case shall a district receive facilities funding of more
than forty thousand dollars ($40,000) per new class that is needed
to expand the Class Size Reduction Program during the 1997-98 school
year.
(3) If, by June 30, 1998, or by a later date specified in a
statute, the State Department of Education determines that the school
district was eligible to receive facilities grants in excess of the
number of facilities grants actually received in the 1997-98 school
year, the department may award additional grants to the school
district, to the extent that the funds are available for this
purpose. To determine if funds are available to a school district
for this purpose, the department shall use the calculations in
subparagraphs (A) to (D), inclusive, of paragraph (2), but adjusted
for actual implementation of the Class Size Reduction Program and
yearend enrollment.
(d) The funds allocated pursuant to this section shall be
considered to be a loan to the school district receiving the funds.
The following loan repayment provisions shall apply to all
allocations made pursuant to this section:
(1) If the school district is eligible to receive grants pursuant
to the provisions of subparagraph (A) of paragraph (2) of subdivision
(b) of Section 52122 for the 1997-98 school year and has satisfied
all requirements to receive these funds in the 1997-98 school year,
for all classes for which it received facilities funding pursuant to
this section, as determined by the State Department of Education, the
school district shall not be required to repay the loan.
(2) If a school district receives funding pursuant to this
section, but has not satisfied the requirements of paragraph (1) for
all classes for which it received facilities funds, the
Superintendent of Public Instruction shall notify the Controller and
school district in writing, and the Controller shall deduct an amount
equal to the portion of the total loan amount received by the school
district under this subdivision for the classes that the school
district failed to reduce the size to 20 or fewer pupils pursuant to
the provisions of subparagraph (A) of paragraph (2) of subdivision
(b) of Section 52122, from the school district's next principal
apportionment or apportionments of state funds to the school
district, other than basic aid apportionments required by Section 6
of Article IX of the California Constitution.
(e) Funds allocated to school districts pursuant to this section
shall be expended solely for the purpose of facilities-related costs
associated with the implementation of the Class Size Reduction
Program contained in this chapter.
(f) Funds shall not be allocated to school districts pursuant to
this section for the purpose of assisting school districts in
implementing Option Two, as set forth in paragraph (2) of subdivision
(b) of Section 52122.
(g) Nothing in this section shall be construed as precluding
school districts from fully implementing class size reduction in
kindergarten and grades 1 to 3, inclusive.
(h) It is the intent of the Legislature that, for each new
teaching station a school district establishes for the purpose of
class size reduction for which the school district did not receive a
facilities grant under this section or any previous appropriation for
this purpose, the school district shall be eligible for facilities
funding from any state general obligation bond measure approved for
that purpose.
(i) For purposes of this section, any reference to school
districts shall be deemed to include any charter school.
SEC. 57. Section 52124 of the Education Code is amended to read:
52124. (a) Any school district that implements a Class Size
Reduction Program pursuant to this chapter is subject to this
section.
(b) A school district may establish a program to reduce class size
in kindergarten and grades 1 to 3, inclusive, and that program shall
be implemented at each schoolsite according to the following
priorities:
(1) If only one grade level is reduced at a schoolsite, the grade
level shall be grade 1.
(2) If only two grade levels are reduced at a schoolsite, the
grade levels shall be grades 1 and 2.
(3) If three grade levels are reduced at a schoolsite, then those
grade levels shall be kindergarten and grades 1 and 2 or grades 1 to
3, inclusive. Priority shall be given to the reduction of class
sizes in grades 1 and 2 before the class sizes of kindergarten or
grade 3 are reduced.
(4) If four grade levels are reduced at a schoolsite, then those
grade levels shall be kindergarten and grades 1 to 3, inclusive.
First priority shall be given to the reduction of class sizes in
grades 1 and 2, second priority shall be given to the reduction of
class size in kindergarten and grade 3. This paragraph shall be
operative only in those fiscal years for which funds are appropriated
expressly for the purposes of this paragraph.
(c) It is the intent of the Legislature to continue to permit the
use of combination classes of more than one grade level to the extent
that school districts are otherwise permitted to use that
instructional strategy. However, any school district that uses a
combination class in any class for which funding is received pursuant
to this chapter may not claim funding pursuant to this chapter if
the total number of pupils in the combination class, regardless of
grade level, exceeds 20 pupils per certificated teacher assigned to
provide direct instructional services.
(d) The governing board of a school district shall certify to the
Superintendent of Public Instruction that it has met the requirements
of this section in implementing its Class Size Reduction Program.
If a school district receives funding pursuant to this chapter but
has not implemented its Class Size Reduction Program for all grades
and classes for which it received funding pursuant to this chapter,
the Superintendent of Public Instruction shall notify the Controller
and the school district in writing and the Controller shall deduct an
amount equal to the amount received by the school district under
this chapter for each class that the school district failed to reduce
to a class size of 20 or less pupils from the school district's next
principal apportionment or apportionments of state funds to the
district, other than basic aid apportionments required by Section 6
of Article IX of the California Constitution.
SEC. 58. Section 52181 of the Education Code is amended to read:
52181. The State Bilingual Teacher Training Assistance Program is
hereby established for teachers who are granted waivers under
Section 52178 and who are enrolled and participating in a program
leading to a bilingual specialist credential or a certificate of
competence for bilingual-crosscultural competence. The program shall
be administered by the State Department of Education which shall, in
consultation with the Commission on Teacher Credentialing and
representatives of bilingual educators from institutions of higher
education, county offices of education, and school districts, develop
annual and long-range goals and objectives for the program, based
upon the reports required under subparagraph (B) of paragraph (2) of
subdivision (a) of Section 52171.6 and under Section 52178.
SEC. 59. Section 52183 of the Education Code is amended to read:
52183. The department shall establish minimum requirements for
teachers who may wish to participate in the program, including, but
not limited to, the following requirements:
(a) That the teacher is working in a bilingual classroom serving
pupils of limited-English-proficiency and is under a bilingual
teacher waiver issued pursuant to Section 52178.
(b) That the teacher's waiver application includes a certification
by an assessor agency approved by the Commission on Teacher
Preparation and Licensing issued pursuant to Section 52178.
(c) That the teacher is enrolled and participating in a program
leading to a bilingual specialist credential or a certificate of
competence for bilingual-crosscultural instruction pursuant to
Section 44253.5.
(d) That the teacher demonstrates the ability and commitment to
meet the requirements of the certificate of competence within the
time period specified in Section 52178.
SEC. 60. Section 60640 of the Education Code is amended to read:
60640. (a) There is hereby established the Standardized Testing
and Reporting Program, to be known as the STAR Program.
(b) Commencing in the 1997-98 fiscal year and each fiscal year
thereafter, and from the funds available for that purpose, each
school district, charter school, and county office of education shall
administer to each of its pupils in grades 2 to 11, inclusive,
before May 15, the achievement test designated by the State Board of
Education pursuant to Section 60642.
(c) The publisher and the school district shall provide two makeup
days for the testing of previously absent pupils no later than May
25.
(d) The governing board of the school district may administer
achievement tests in kindergarten, and grade 1 or 12, or both, as it
deems appropriate.
(e) Individuals with exceptional needs who have an explicit
provision in their individualized education program that exempts them
from the testing requirement of subdivision (b) shall be so exempt.
(f) At the school district's option, pupils of limited English
proficiency who are enrolled in any of grades 2 to 11, inclusive, may
take a second achievement test in their primary language.
(g) In addition to the test required by subdivision (b), pupils of
limited English proficiency who are enrolled in any of grades 2 to
11, inclusive, shall be required to take a test in their primary
language if that test is available, if less than 12 months have
elapsed after their initial enrollment in any public school in the
state.
(h) The Superintendent of Public Instruction shall apportion funds
to enable school districts to meet the requirements of subdivisions
(b), (f), and (g). The State Board of Education shall establish the
amount of funding to be apportioned. The amount to be apportioned
shall be up to eight dollars ($8) per test administered to a pupil in
grades 2 to 11, inclusive.
(i) For the purposes of making the computations required by
Section 8 of Article XVI of the California Constitution, the
appropriation for the apportionments made pursuant to subdivision (g)
shall be deemed to be "General Fund revenues appropriated for school
districts," as defined in subdivision (c) of Section 41202 of the
Education Code, for the applicable fiscal year, and included within
the "total allocations to school districts and community college
districts from General Fund proceeds of taxes appropriated pursuant
to Article XIIIB," as defined in subdivision (e) of Section 41202 of
the Education Code, for that fiscal year.
(j) As a condition to receiving an apportionment pursuant to
subdivision (h), a school district shall report to the superintendent
all of the following:
(1) The number of pupils enrolled in the school district in grades
2 to 11, inclusive.
(2) The number of pupils to whom an achievement test was
administered in grades 2 to 11, inclusive, in the school district.
(3) The number of pupils in paragraph (1) who were exempted from
the test pursuant to subdivision (e).
(4) The number of pupils in paragraph (1) who were exempted from
the test at the request of their parents or guardians.
SEC. 61. Section 69621 of the Education Code is amended to read:
69621. For purposes of this article, the following definitions
apply:
(a) "Child Development Permit" means a permit issued by the
Commission on Teacher Credentialing that authorizes an individual to
teach, instruct, or supervise in a licensed child care and
development program.
(b) "Licensed children's center" means a public school
district-based, nonprofit community-based, or private proprietary
program licensed by the State Department of Social Services under the
health and safety requirements of Title 22 of the California Code of
Regulations or administered by the State Department of Education
under Title 5 of the California Code of Regulations. Licensed
children's centers include federal- and state-subsidized and
nonsubsidized child care and development programs serving children
part day or full day.
SEC. 62. Section 69629 of the Education Code is amended to read:
69629. This article shall become inoperative on June 30, 2002,
and, as of January 1, 2003, is repealed, unless a later enacted
statute that becomes effective on or before January 1, 2003, deletes
or extends the dates on which it becomes inoperative and is repealed.
SEC. 63. Section 89010 of the Education Code is amended to read:
89010. (a) Notwithstanding Article 1 (commencing with Section
11000) of Chapter 1 of Part 1, Article 2 (commencing with Section
14660) of Chapter 2 of Part 5.5, and Part 11 (commencing with Section
15850), of Division 3 of Title 2 of the Government Code, or any
other provision of law to the contrary, the trustees may sell
improvements located on the land at the California State University,
Monterey Bay campus that was transferred to the trustees from the
United States of America and used for housing purposes, in
circumstances in which the underlying ownership in the land remains
in the trustees. The trustees may exercise this authority without
the prior approval of any other state department or agency.
(b) Moneys received by the trustees from the sale of improvements
authorized in this section shall be deposited in local trust
accounts. Moneys so deposited may be invested in accordance with
state law and, notwithstanding Section 13340, are continuously
appropriated without regard to fiscal years for the purposes of
building, maintaining, and funding a campus of the California State
University at Monterey Bay through expenditures for improvements to
the campus, funding of scholarships, and other academic purposes of
the campus.
SEC. 64. Section 3030 of the Family Code is amended to read:
3030. (a) No person shall be granted custody of, or unsupervised
visitation with, a child if the person is required to be registered
as a sex offender under Section 290 of the Penal Code and the victim
of the offense was a minor, or if the person has been convicted under
Section 273a, 273d, or 647.6 of the Penal Code, unless the court
finds that there is no significant risk to the child.
(b) No person shall be granted custody of, or visitation with, a
child if the person has been convicted under Section 261 of the Penal
Code and the child was conceived as a result of that violation.
(c) The court may order child support that is to be paid by a
person subject to subdivision (a) or (b) to be paid through the
district attorney's office, as authorized by Section 4573 of this
code and Section 11475.1 of the Welfare and Institutions Code.
(d) The court shall not disclose, or cause to be disclosed, the
custodial parent's place of residence, place of employment, or the
child's school, unless the court finds that the disclosure would be
in the best interests of the child.
SEC. 65. Section 4901 of the Family Code is amended to read:
4901. As used in this chapter, the following definitions shall
apply:
(1) "Child" means an individual, whether over or under the age of
majority, who is, or is alleged to be, owed a duty of support by the
individual's parent or who is, or is alleged to be, the beneficiary
of a support order directed to the parent.
(2) "Child support order" means a support order for a child,
including a child who has attained the age of majority under the law
of the issuing state.
(3) "Duty of support" means an obligation imposed or imposable by
law to provide support for a child, spouse, or former spouse,
including an unsatisfied obligation to provide support.
(4) "Home state" means the state in which a child lived with a
parent or a person acting as parent for at least six consecutive
months immediately preceding the time of filing of a petition or
comparable pleading for support and, if a child is less than six
months old, the state in which the child lived from birth with any of
them. A period of temporary absence of any of them is counted as
part of the six-month or other period.
(5) "Income" includes earnings or other periodic entitlements to
money from any source and any other property subject to withholding
for support under the laws of this state.
(6) "Income-withholding order" means an earnings assignment order
for support, as defined in Section 5208, or any other order or other
legal process directed to an obligor's employer, or other debtor, to
withhold from the income of the obligor an amount owed for support.
(7) "Initiating state" means a state from which a proceeding is
forwarded, or in which a proceeding is filed for forwarding, to a
responding state under this chapter or a law or procedure
substantially similar to this chapter, the Uniform Reciprocal
Enforcement of Support Act, or the Revised Uniform Reciprocal
Enforcement of Support Act.
(8) "Initiating tribunal" means the authorized tribunal in an
initiating state.
(9) "Issuing state" means the state in which a tribunal issues a
support order or renders a judgment determining parentage.
(10) "Issuing tribunal" means the tribunal that issues a support
order or renders a judgment determining parentage.
(11) "Law" includes decisional and statutory law and rules and
regulations having the force of law.
(12) "Obligee" means any of the following:
(i) An individual to whom a duty of support is, or is alleged to
be, owed or in whose favor a support order has been issued or a
judgment determining parentage has been rendered.
(ii) A state or political subdivision to which the rights under a
duty of support or support order have been assigned or which has
independent claims based on its provision of financial assistance to
an individual obligee.
(iii) An individual seeking a judgment determining parentage of
the individual's child.
(13) "Obligor" means an individual, or the estate of a decedent,
that satisfies any of the following criteria:
(i) He or she owes or is alleged to owe a duty of support.
(ii) He or she is alleged but has not been adjudicated to be a
parent of a child.
(iii) He or she is liable under a support order.
(14) "Register" means to file a support order or judgment
determining parentage in the superior court in any county in which
enforcement of the order is sought.
(15) "Registering tribunal" means a tribunal in which a support
order is registered.
(16) "Responding state" means a state in which a proceeding is
filed or to which a proceeding is forwarded for filing from an
initiating state under this chapter or a law or procedure
substantially similar to this chapter, the Uniform Reciprocal
Enforcement of Support Act, or the Revised Uniform Reciprocal
Enforcement of Support Act.
(17) "Responding tribunal" means the authorized tribunal in a
responding state.
(18) "Spousal support order" means a support order for a spouse or
former spouse of the obligor.
(19) "State" means a state of the United States, the District of
Columbia, Puerto Rico, the United States Virgin Islands, or any
territory or insular possession subject to the jurisdiction of the
United States. The term "state" also includes both of the following:
(i) An Indian tribe.
(ii) A foreign jurisdiction that has enacted a law or established
procedures for issuance and enforcement of support orders which are
substantially similar to the procedures under this chapter, the
Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform
Reciprocal Enforcement of Support Act.
(20) "Support enforcement agency" means a public official or
agency authorized to seek any of the following:
(i) Enforcement of support orders or laws relating to the duty of
support.
(ii) Establishment or modification of child support.
(iii) Determination of parentage.
(iv) To locate obligors or their assets.
(21) "Support order" means a judgment, decree, or order, whether
temporary, final, or subject to modification, for the benefit of a
child, spouse, or former spouse, that provides for monetary support,
health care, arrearages, or reimbursement, and may include related
costs and fees, interest, income withholding, attorney's fees, or
other relief.
(22) "Tribunal" means a court, administrative agency, or
quasi-judicial entity authorized to establish, enforce, or modify
support orders or to determine parentage.
SEC. 66. Section 7552 of the Family Code is amended to read:
7552. The genetic tests shall be performed by a laboratory
approved by any accreditation body that has been approved by the
United States Secretary of Health and Human Services. Any party or
person at whose suggestion the tests have been ordered may demand
that other experts, qualified as examiners of blood types, perform
independent tests under order of the court, the results of which may
be offered in evidence. The number and qualifications of these
experts shall be determined by the court.
SEC. 67. Section 7571 of the Family Code is amended to read:
7571. (a) On and after January 1, 1995, upon the event of a live
birth, prior to an unmarried mother leaving any hospital, the person
responsible for registering live births under Section 102405 of the
Health and Safety Code shall provide to the natural mother and shall
attempt to provide, at the place of birth, to the man identified by
the natural mother as the natural father, a voluntary declaration of
paternity together with the written materials described in Section
7572. The person responsible for registering the birth shall file
the declaration, if completed, with the birth certificate, and, if
requested, shall transmit a copy of the declaration to the district
attorney of the county in which the birth occurred. A copy of the
declaration shall be made available to each of the attesting parents.
(b) No health care provider shall be subject to any civil,
criminal, or administrative liability for any negligent act or
omission relative to the accuracy of the information provided or for
filing the declaration with the appropriate state or local agencies.
(c) The district attorney shall pay the sum of ten dollars ($10)
to birthing hospitals and other entities that provide prenatal
services for each completed declaration of paternity that is filed
with the State Registrar of Vital Statistics, provided that the
district attorney and the hospital or other entity providing prenatal
services has entered into a written agreement that specifies the
terms and conditions for the payment as required by federal law.
(d) If the declaration is not registered by the person responsible
for registering live births at the hospital, it may be completed by
the attesting parents, notarized, and mailed to the State Registrar
of Vital Statistics at any time after the child's birth.
(e) Prenatal clinics may offer prospective parents the opportunity
to sign a voluntary declaration of paternity. In order to be paid
for their services as provided in subdivision (c), prenatal clinics
shall ensure that the form is witnessed and forwarded to the State
Registrar of Vital Statistics.
(f) Declarations shall be made available without charge at all
district attorney offices, offices of local registrars of births and
deaths, courts, and county welfare departments within this state.
Staff in these offices shall witness the signatures of parents
wishing to sign a voluntary declaration of paternity and shall be
responsible for forwarding the signed declaration to the State
Registrar of Vital Statistics.
(g) The district attorney may, at his or her option, pay the sum
of ten dollars ($10) to local registrars of birth and deaths, county
welfare departments, or courts for each completed declaration of
paternity that is witnessed by staff in these offices and filed with
the State Registrar of Vital Statistics. In order to receive
payment, the district attorney and the entity shall enter into a
written agreement that specifies the terms and conditions for payment
as required by federal law. The State Department of Social Services
shall study the effect of the ten dollar ($10) payment on obtaining
completed voluntary declaration of paternity forms and shall report
to the Legislature on any recommendations to change the ten dollar
($10) optional payment, if appropriate, by January 1, 2000.
(h) The State Department of Social Services and district attorneys
shall publicize the availability of the declarations. The district
attorney shall make the declaration, together with the written
materials described in subdivision (a) of Section 7572, available
upon request to any parent. The district attorney shall also provide
qualified staff to answer parents' questions regarding the
declaration and the process of establishing paternity.
(i) Copies of the declaration filed with the State Registrar of
Vital Statistics shall be made available only to the parents, the
child, the district attorney, the county welfare department, the
county counsel, and the State Department of Social Services.
SEC. 68. Section 7572 of the Family Code is amended to read:
7572. (a) The State Department of Social Services, in
consultation with the State Department of Health Services, the
California Association of Hospitals and Health Systems, and other
affected health provider organizations, shall work cooperatively to
develop written materials to assist providers and parents in
complying with this chapter.
(b) The written materials for parents that shall be attached to
the form specified in Section 7574 and provided to unmarried parents
shall contain all of the following information:
(1) A signed voluntary declaration of paternity that is filed with
the State Registrar of Vital Statistics legally establishes
paternity.
(2) The legal rights and obligations of both parents and the child
that result from the establishment of paternity.
(3) An alleged father's constitutional rights to have the issue of
paternity decided by a court; to receive notice of any hearing on
the issue of paternity; to have an opportunity to present his case to
the court, including his right to present and cross-examine
witnesses; to have an attorney represent him; and to have an attorney
appointed to represent him if he cannot afford one in a paternity
action filed by the district attorney.
(4) That by signing the voluntary declaration of paternity, the
father is voluntarily waiving his constitutional rights.
(c) Parents also shall be given oral notice of the rights and
responsibilities specified in subdivision (b). Oral notice may be
accomplished through the use of audio or videotape programs developed
by the State Department of Social Services to the extent permitted
by federal law.
(d) The State Department of Social Services shall, free of charge,
make available to hospitals, clinics, and other places of birth any
and all informational and training materials for the program under
this chapter, as well as the paternity declaration form. The State
Department of Social Services shall make training available to every
hospital, clinic, and other place of birth no later than October 31,
1994.
(e) The State Department of Social Services may adopt regulations,
including emergency regulations, necessary to implement this
chapter.
SEC. 69. Section 7575 of the Family Code is amended to read:
7575. (a) Either parent may rescind the voluntary declaration of
paternity by filing a rescission form with the State Registrar of
Vital Statistics within 60 days of the date of execution of the
declaration by the attesting father or attesting mother, whichever
signature is later, unless a court order for custody, visitation, or
child support has been entered in an action in which the signatory
seeking to rescind was a party. The State Department of Social
Services shall develop a form to be used by parents to rescind the
declaration of paternity and instructions on how to complete and file
the rescission with the State Registrar of Vital Statistics. The
form shall include a declaration under penalty of perjury completed
by the person filing the rescission form that certifies that a copy
of the rescission form was sent by any form of mail requiring a
return receipt to the other person who signed the voluntary
declaration of paternity. A copy of the return receipt shall be
attached to the rescission form when filed with the State Registrar
of Vital Statistics. The form and instructions shall be written in
simple, easy to understand language and shall be made available at
the local family support office and the office of local registrar of
births and deaths.
(b) (1) Notwithstanding Section 7573, if the court finds that the
conclusions of all of the experts based upon the results of the
genetic tests performed pursuant to Chapter 2 (commencing with
Section 7550) are that the man who signed the voluntary declaration
is not the father of the child, the court may set aside the voluntary
declaration of paternity.
(2) The notice of motion for genetic tests under this section may
be filed not later than two years from the date of the child's birth
by either the mother or the man who signed the voluntary declaration
of paternity in an action to determine the existence or nonexistence
of the father and child relationship pursuant to Section 7630 or in
any action to establish an order for child custody, visitation, or
child support based upon the voluntary declaration of paternity.
(3) The notice of motion for genetic tests pursuant to this
section shall be supported by a declaration under oath submitted by
the moving party stating the factual basis for putting the issue of
paternity before the court.
(c) (1) Nothing in this chapter shall be construed to prejudice or
bar the rights of either parent to file an action or motion to set
aside the voluntary declaration of paternity on any of the grounds
described in, and within the time limits specified in, Section 473 of
the Code of Civil Procedure and Chapter 10 (commencing with Section
2120) of Part 1 of Division 6. If the action or motion to set aside
the voluntary declaration of paternity based upon an act of fraud or
perjury, the act must have induced the parent to sign the voluntary
declaration of paternity. If the action or motion to set aside a
judgment is required to be filed within a specified time period under
Section 473 of the Code of Civil Procedure or Section 2122, the
period to file the action or motion to set aside the voluntary
declaration of paternity shall commence on the date that the court
makes a finding of paternity based upon the voluntary declaration of
paternity in an action for custody, visitation, or child support.
(2) The parent seeking to set aside the voluntary declaration of
paternity shall have the burden of proof.
(3) Any order for custody, visitation, or child support shall
remain in effect until the court determines that the voluntary
declaration of paternity should be set aside, subject to the court's
power to modify the orders as otherwise provided by law.
(4) Nothing in this section restricts a court from acting as a
court of equity.
(5) If the voluntary declaration of paternity is set aside
pursuant to paragraph (1), the court shall order that the mother,
child, and alleged father submit to genetic tests pursuant to Chapter
2 (commencing with Section 7550). If the court finds that the
conclusions of all the experts, as disclosed by the evidence based
upon the genetic tests, are that the person who executed the
voluntary declaration of paternity is not the father of the child,
the question of paternity shall be resolved accordingly. If the
person who executed the declaration as the father of the child is not
excluded as a possible father, the question of paternity shall be
resolved as otherwise provided by law. If the person who executed
the declaration of paternity is ultimately determined to be the
father of the child, any child support that accrued under an order
based upon the voluntary declaration of paternity shall remain due
and owing.
(6) The Judicial Council shall develop the forms and procedures
necessary to effectuate this subdivision.
SEC. 70. Section 1505 of the Financial Code is amended to read:
1505. The Legislature finds and declares that it is important to
inform taxpayers that they may make voluntary contributions to
certain funds or programs, as provided on the state income tax
return. The Legislature further finds and declares that many
taxpayers remain unaware of the voluntary contribution check-offs on
the state income tax return. Therefore, it is the intent of the
Legislature to encourage all persons who prepare state income tax
returns to inform their clients in writing, prior to the completion
of any tax return, that they may make a contribution to any voluntary
contribution check-off on the state income tax return if they so
choose.
SEC. 71. Section 13081 of the Financial Code is amended to read:
13081. (a) In enacting this section, the Legislature finds and
declares all of the following:
(1) It is in the best interest of consumers in this state to be
aware of fees they may be charged for using point-of-sale devices
prior to being obligated to pay those fees.
(2) In 1996, the Legislature enacted Assembly Bill 3366 (Chapter
98 of the Statutes of 1996), which required operators of automatic
teller machines (ATMs) to electronically disclose fees for
transactions at those ATMs. That legislation did not require
disclosure of fees at point-of-sale devices.
(3) In order to maximize consumer awareness of fees at
point-of-sale devices, and to create equity between operators of ATMs
and operators of point-of-sale devices, it is the intent of the
Legislature in enacting this section to require the maximum feasible
disclosure of fees at point-of-sale devices.
(b) No operator of a point-of-sale device in this state shall
impose any fee upon a customer for the use of that device unless that
fee is disclosed to the customer prior to the customer being
obligated to pay for any goods or services. That disclosure shall be
placed on or at the point-of-sale device as follows:
(1) For all point-of-sale devices, the fee disclosure shall be on
a label meeting federal standards.
(2) For point-of-sale devices purchased on or after January 1,
2001, that have electronic displays, the fee disclosure shall also be
electronic.
(c) For purposes of this section, the term "point-of-sale device"
includes any device used for the purchase of a good or service where
a personal identification number (PIN) is required, but does not
include an access device as defined in subdivision (b) of Section
13020.
(d) For the purposes of this section, the term "operator of a
point-of-sale device" means the person who imposes the fee on a
customer for using a point-of-sale device to pay for a good or
service.
SEC. 72. Section 22050 of the Financial Code is amended to read:
22050. (a) This division does not apply to any person doing
business under any law of this state or of the United States relating
to banks, trust companies, savings and loan associations, industrial
loan companies, credit unions, small business investment companies,
California business and industrial development corporations, or
licensed pawnbrokers.
(b) This division does not apply to a broker-dealer acting
pursuant to a certificate, then in effect, issued pursuant to Section
25211 of the Corporations Code.
(c) This division does not apply to a college or university making
a loan for the purpose of permitting a person to pursue a program or
course of study leading to a degree or certificate.
(d) This division does not apply to a check casher who holds a
valid permit issued pursuant to Section 1789.37 of the Civil Code
when acting under the authority of that permit.
(e) This division does not apply to any person who makes no more
than one loan in a 12-month period as long as that loan is a
commercial loan as defined in Section 22502.
SEC. 73. Section 1348.2 of the Fish and Game Code is amended to
read:
1348.2. When the board acquires real property, other than by
eminent domain, the purchase price for the real property shall not
exceed the fair market value of the property, as defined in Section
1263.320 of the Code of Civil Procedure. The fair market value shall
be set forth in an appraisal that is (a) prepared by a licensed real
estate appraiser, and (b) approved by the Department of General
Services.
SEC. 74. Section 2052.1 of the Fish and Game Code is amended to
read:
2052.1. The Legislature further finds and declares that if any
provision of this chapter requires a person to provide mitigation
measures or alternatives to address a particular impact on a
candidate species, threatened species, or endangered species, the
measures or alternatives required shall be roughly proportional in
extent to any impact on those species that is caused by that person.
Where various measures or alternatives are available to meet this
obligation, the measures or alternatives required shall maintain the
person's objectives to the greatest extent possible consistent with
this section. All required measures or alternatives shall be capable
of successful implementation. This section governs the full extent
of mitigation measures or alternatives that may be imposed on a
person pursuant to this chapter. This section shall not affect the
state's obligations set forth in Section 2052.
SEC. 75. Section 4600 of the Fish and Game Code is amended to
read:
4600. It is unlawful to kill, wound, capture, or have in
possession any undomesticated burro.
An undomesticated burro is a wild burro or a burro which has not
been tamed or domesticated for a period of three years after its
capture. The fact that a burro was killed, wounded, or captured on
publicly owned land, or on land owned by a person other than the
person who killed, wounded, or captured the burro is prima facie
evidence that the burro was an undomesticated burro at the time it
was killed, wounded, or captured.
Neither the commission nor any other department or agency has any
power to modify the provisions of this section by any order, rule, or
regulation.
SEC. 76. Section 4606 of the Fish and Game Code is repealed.
SEC. 77. Section 7151 of the Fish and Game Code is amended to
read:
7151. (a) Upon application to the department, the following
persons, who have not been convicted of any violation of this code,
shall be issued, free of any charge or fee, a free sportfishing
license, which is valid for the calendar year of issue or, if issued
after the beginning of the year, for the remainder thereof, and which
authorizes the licensee to take any fish, reptile, or amphibia
anywhere in this state for purposes other than profit:
(1) A blind person upon presentation of proof of blindness.
"Blind person" means a person with central vision acuity of 20/200 or
less in the better eye, with the aid of the best possible correcting
glasses, or central visual acuity better than 20/200 if the widest
diameter of the remaining visual field is no greater than 20 degrees.
Proof of blindness shall be by certification from a qualified
licensed optometrist or ophthalmologist or by presentation of a
license issued pursuant to this paragraph in the preceding license
year.
(2) Every resident Native American who, in the discretion of the
department, is financially unable to pay the fee required for the
license.
(3) Upon certification by the person in charge of a state
hospital, a person who is a ward of the state and who is a patient
in, and resides in, the state hospital.
(4) Upon certification by the person in charge of the regional
center for the developmentally disabled, a developmentally disabled
person receiving services from the regional center.
(5) A person who is a resident of the state and who is so severely
physically disabled as to be permanently unable to move from place
to place without the aid of a wheelchair, walker, forearm crutches,
or a comparable mobility-related device. Proof of the disability
shall be by certification from a licensed physician and surgeon or,
beginning January 1, 1997, by presentation of a license issued
pursuant to this paragraph for the preceding year.
(b) Upon application to the department, the department may issue,
free of any charge or fee, a sportfishing permit to fish to groups of
mentally or physically handicapped persons under the care of a
certified federal, state, county, city, or private licensed care
center, as set forth in Section 1502 of the Health and Safety Code,
to organizations exempt from taxation under Section 501(c)(3) of the
federal Internal Revenue Code, or to schools or school districts.
Any organization that applies for a group fishing permit shall
provide evidence that it is
a legitimate private licensed care center, tax-exempt
organization, school, or school district. The permit shall be issued
to the person in charge of the group and shall be in his or her
possession when the group is fishing. Employees of private licensed
care centers, tax-exempt organizations, schools, or school districts
are exempt from Section 7145 only while assisting physically or
mentally disabled persons fishing under the authority of a valid
permit issued pursuant to this section. The permit shall include the
location where the activity will take place, the date or dates of
the activity, and the maximum number of people in the group. The
permitholder shall notify the local department office before fishing
and indicate where, when, and how long the group will fish.
(c) On January 15 of each year, the department shall determine the
number of free sportfishing licenses issued under subdivisions (a)
and (b) to blind persons, indigent resident Native Americans, wards
of the state, developmentally disabled persons, and physically
disabled persons.
(d) There shall be appropriated from the General Fund a sum equal
to two dollars ($2) per free sportfishing license issued under
subdivisions (a) and (b), as determined by the department pursuant to
subdivision (c). That sum may be appropriated annually in the
Budget Act for transfer to the Fish and Game Preservation Fund and
appropriated in the Budget Act from the Fish and Game Preservation
Fund to the department for the purposes of this part.
SEC. 78. The heading of Article 2 (commencing with Section 11241)
of Chapter 2 of Part 4 of Division 5 of the Food and Agricultural
Code is repealed.
SEC. 79. Section 12803 of the Food and Agricultural Code is
amended to read:
12803. The director, by regulation, may exempt from all or part
of the requirements of this division a pesticide exempted pursuant to
Section 25(b) of the federal Insecticide, Fungicide, and Rodenticide
Act (7 U.S.C. Sec. 136w (b)) as a pesticide that is determined to be
of a character unnecessary to be subject to that act, if both of the
following apply:
(a) The director individually evaluates each listed substance
exempted pursuant to the federal authority and concurs in the
decision by the United States Environmental Protection Agency
Administrator to exempt that substance.
(b) The director excludes from the exempting regulation those
specific requirements of this division that may otherwise be
applicable that are necessary to protect the public health or the
environment. Notwithstanding any other provision of law, the
director shall retain authority to regulate any substance exempted
pursuant to this section whether registered or not.
SEC. 80. The heading of Chapter 4 (commencing with Section 16701)
of Part 1 of Division 9 of the Food and Agricultural Code is
repealed.
SEC. 81. The heading of Chapter 5 (commencing with Section 16801)
of Part 1 of Division 9 of the Food and Agricultural Code is
repealed.
SEC. 82. The heading of Article 5 of Chapter 8 of Part 3 of
Division 15 of the Food and Agricultural Code is repealed.
SEC. 83. Section 6254 of the Government Code is amended to read:
6254. Except as provided in Sections 6254.7 and 6254.13, nothing
in this chapter shall be construed to require disclosure of records
that are any of the following:
(a) Preliminary drafts, notes, or interagency or intra-agency
memoranda that are not retained by the public agency in the ordinary
course of business, provided that the public interest in withholding
those records clearly outweighs the public interest in disclosure.
(b) Records pertaining to pending litigation to which the public
agency is a party, or to claims made pursuant to Division 3.6
(commencing with Section 810), until the pending litigation or claim
has been finally adjudicated or otherwise settled.
(c) Personnel, medical, or similar files, the disclosure of which
would constitute an unwarranted invasion of personal privacy.
(d) Contained in or related to:
(1) Applications filed with any state agency responsible for the
regulation or supervision of the issuance of securities or of
financial institutions, including, but not limited to, banks, savings
and loan associations, industrial loan companies, credit unions, and
insurance companies.
(2) Examination, operating, or condition reports prepared by, on
behalf of, or for the use of, any state agency referred to in
paragraph (1).
(3) Preliminary drafts, notes, or interagency or intra-agency
communications prepared by, on behalf of, or for the use of, any
state agency referred to in paragraph (1).
(4) Information received in confidence by any state agency
referred to in paragraph (1).
(e) Geological and geophysical data, plant production data, and
similar information relating to utility systems development, or
market or crop reports, that are obtained in confidence from any
person.
(f) Records of complaints to, or investigations conducted by, or
records of intelligence information or security procedures of, the
office of the Attorney General and the Department of Justice, and any
state or local police agency, or any investigatory or security files
compiled by any other state or local police agency, or any
investigatory or security files compiled by any other state or local
agency for correctional, law enforcement, or licensing purposes,
except that state and local law enforcement agencies shall disclose
the names and addresses of persons involved in, or witnesses other
than confidential informants to, the incident, the description of any
property involved, the date, time, and location of the incident, all
diagrams, statements of the parties involved in the incident, the
statements of all witnesses, other than confidential informants, to
the victims of an incident, or an authorized representative thereof,
an insurance carrier against which a claim has been or might be made,
and any person suffering bodily injury or property damage or loss,
as the result of the incident caused by arson, burglary, fire,
explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or
a crime as defined by subdivision (c) of Section 13960, unless the
disclosure would endanger the safety of a witness or other person
involved in the investigation, or unless disclosure would endanger
the successful completion of the investigation or a related
investigation. However, nothing in this division shall require the
disclosure of that portion of those investigative files that reflect
the analysis or conclusions of the investigating officer.
Other provisions of this subdivision notwithstanding, state and
local law enforcement agencies shall make public the following
information, except to the extent that disclosure of a particular
item of information would endanger the safety of a person involved in
an investigation or would endanger the successful completion of the
investigation or a related investigation:
(1) The full name and occupation of every individual arrested by
the agency, the individual's physical description including date of
birth, color of eyes and hair, sex, height and weight, the time and
date of arrest, the time and date of booking, the location of the
arrest, the factual circumstances surrounding the arrest, the amount
of bail set, the time and manner of release or the location where the
individual is currently being held, and all charges the individual
is being held upon, including any outstanding warrants from other
jurisdictions and parole or probation holds.
(2) Subject to the restrictions imposed by Section 841.5 of the
Penal Code, the time, substance, and location of all complaints or
requests for assistance received by the agency and the time and
nature of the response thereto, including, to the extent the
information regarding crimes alleged or committed or any other
incident investigated is recorded, the time, date, and location of
occurrence, the time and date of the report, the name and age of the
victim, the factual circumstances surrounding the crime or incident,
and a general description of any injuries, property, or weapons
involved. The name of a victim of any crime defined by Section 220,
261, 262, 264, 264.1, 273a, 273d, 273.5, 286, 288, 288a, 289, 422.6,
422.7, 422.75, or 646.9 of the Penal Code may be withheld at the
victim's request, or at the request of the victim's parent or
guardian if the victim is a minor. When a person is the victim of
more than one crime, information disclosing that the person is a
victim of a crime defined by Section 220, 261, 262, 264, 264.1, 273a,
273d, 286, 288, 288a, 289, 422.6, 422.7, 422.75, or 646.9 of the
Penal Code may be deleted at the request of the victim, or the victim'
s parent or guardian if the victim is a minor, in making the report
of the crime, or of any crime or incident accompanying the crime,
available to the public in compliance with the requirements of this
paragraph.
(3) Subject to the restrictions of Section 841.5 of the Penal Code
and this subdivision, the current address of every individual
arrested by the agency and the current address of the victim of a
crime, where the requester declares under penalty of perjury that the
request is made for a scholarly, journalistic, political, or
governmental purpose, or that the request is made for investigation
purposes by a licensed private investigator as described in Chapter
11.3 (commencing with Section 7512) of Division 3 of the Business and
Professions Code, except that the address of the victim of any crime
defined by Section 220, 261, 262, 264, 264.1, 273a, 273d, 273.5,
286, 288, 288a, 289, 422.6, 422.7, 422.75, or 646.9 of the Penal Code
shall remain confidential. Address information obtained pursuant to
this paragraph shall not be used directly or indirectly to sell a
product or service to any individual or group of individuals, and the
requester shall execute a declaration to that effect under penalty
of perjury.
(g) Test questions, scoring keys, and other examination data used
to administer a licensing examination, examination for employment, or
academic examination, except as provided for in Chapter 3
(commencing with Section 99150) of Part 65 of the Education Code.
(h) The contents of real estate appraisals or engineering or
feasibility estimates and evaluations made for or by the state or
local agency relative to the acquisition of property, or to
prospective public supply and construction contracts, until all of
the property has been acquired or all of the contract agreements
obtained. However, the law of eminent domain shall not be affected
by this provision.
(i) Information required from any taxpayer in connection with the
collection of local taxes that is received in confidence and the
disclosure of the information to other persons would result in unfair
competitive disadvantage to the person supplying the information.
(j) Library circulation records kept for the purpose of
identifying the borrower of items available in libraries, and library
and museum materials made or acquired and presented solely for
reference or exhibition purposes. The exemption in this subdivision
shall not apply to records of fines imposed on the borrowers.
(k) Records the disclosure of which is exempted or prohibited
pursuant to federal or state law, including, but not limited to,
provisions of the Evidence Code relating to privilege.
(l) Correspondence of and to the Governor or employees of the
Governor's office or in the custody of or maintained by the Governor'
s legal affairs secretary, provided that public records shall not be
transferred to the custody of the Governor's legal affairs secretary
to evade the disclosure provisions of this chapter.
(m) In the custody of or maintained by the Legislative Counsel,
except those records in the public data base maintained by the
Legislative Counsel that are described in Section 10248.
(n) Statements of personal worth or personal financial data
required by a licensing agency and filed by an applicant with the
licensing agency to establish his or her personal qualification for
the license, certificate, or permit applied for.
(o) Financial data contained in applications for financing under
Division 27 (commencing with Section 44500) of the Health and Safety
Code, where an authorized officer of the California Pollution Control
Financing Authority determines that disclosure of the financial data
would be competitively injurious to the applicant and the data is
required in order to obtain guarantees from the United States Small
Business Administration. The California Pollution Control Financing
Authority shall adopt rules for review of individual requests for
confidentiality under this section and for making available to the
public those portions of an application which are subject to
disclosure under this chapter.
(p) Records of state agencies related to activities governed by
Chapter 10.3 (commencing with Section 3512), Chapter 10.5 (commencing
with Section 3525), and Chapter 12 (commencing with Section 3560) of
Division 4 of Title 1, that reveal a state agency's deliberative
processes, impressions, evaluations, opinions, recommendations,
meeting minutes, research, work products, theories, or strategy, or
that provide instruction, advice, or training to employees who do not
have full collective bargaining and representation rights under
these chapters. Nothing in this subdivision shall be construed to
limit the disclosure duties of a state agency with respect to any
other records relating to the activities governed by the employee
relations acts referred to in this subdivision.
(q) Records of state agencies related to activities governed by
Articles 2.6 (commencing with Section 14081), 2.8 (commencing with
Section 14087.5), and 2.91 (commencing with Section 14089) of Chapter
7 of Part 3 of Division 9 of the Welfare and Institutions Code, that
reveal the special negotiator's deliberative processes, discussions,
communications, or any other portion of the negotiations with
providers of health care services, impressions, opinions,
recommendations, meeting minutes, research, work product, theories,
or strategy, or that provide instruction, advice, or training to
employees.
Except for the portion of a contract containing the rates of
payment, contracts for inpatient services entered into pursuant to
these articles, on or after April 1, 1984, shall be open to
inspection one year after they are fully executed. In the event that
a contract for inpatient services that is entered into prior to
April 1, 1984, is amended on or after April 1, 1984, the amendment,
except for any portion containing the rates of payment, shall be open
to inspection one year after it is fully executed. If the
California Medical Assistance Commission enters into contracts with
health care providers for other than inpatient hospital services,
those contracts shall be open to inspection one year after they are
fully executed.
Three years after a contract or amendment is open to inspection
under this subdivision, the portion of the contract or amendment
containing the rates of payment shall be open to inspection.
Notwithstanding any other provision of law, the entire contract or
amendment shall be open to inspection by the Joint Legislative Audit
Committee. The Joint Legislative Audit Committee shall maintain the
confidentiality of the contracts and amendments until the time a
contract or amendment is fully open to inspection by the public.
(r) Records of Native American graves, cemeteries, and sacred
places maintained by the Native American Heritage Commission.
(s) A final accreditation report of the Joint Commission on
Accreditation of Hospitals that has been transmitted to the State
Department of Health Services pursuant to subdivision (b) of Section
1282 of the Health and Safety Code.
(t) Records of a local hospital district, formed pursuant to
Division 23 (commencing with Section 32000) of the Health and Safety
Code, or the records of a municipal hospital, formed pursuant to
Article 7 (commencing with Section 37600) or Article 8 (commencing
with Section 37650) of Chapter 5 of Division 3 of Title 4 of this
code, that relate to any contract with an insurer or nonprofit
hospital service plan for inpatient or outpatient services for
alternative rates pursuant to Section 10133 or 11512 of the Insurance
Code. However, the record shall be open to inspection within one
year after the contract is fully executed.
(u) Information contained in applications for licenses to carry
firearms issued pursuant to Section 12050 of the Penal Code by the
sheriff of a county or the chief or other head of a municipal police
department that indicates when or where the applicant is vulnerable
to attack or that concerns the applicant's medical or psychological
history or that of members of his or her family.
(v) (1) Records of the Major Risk Medical Insurance Program
related to activities governed by Part 6.3 (commencing with Section
12695), and Part 6.5 (commencing with Section 12700), of Division 2
of the Insurance Code, and that reveal the deliberative processes,
discussions, communications, or any other portion of the negotiations
with health plans, or the impressions, opinions, recommendations,
meeting minutes, research, work product, theories, or strategy of the
board or its staff, or records that provide instructions, advice, or
training to employees.
(2) (A) Except for the portion of a contract that contains the
rates of payment, contracts for health coverage entered into pursuant
to Part 6.3 (commencing with Section 12695), or Part 6.5 (commencing
with Section 12700), of Division 2 of the Insurance Code, on or
after July 1, 1991, shall be open to inspection one year after they
have been fully executed.
(B) In the event that a contract for health coverage that is
entered into prior to July 1, 1991, is amended on or after July 1,
1991, the amendment, except for any portion containing the rates of
payment shall be open to inspection one year after the amendment has
been fully executed.
(3) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The Joint Legislative Audit
Committee shall maintain the confidentiality of the contracts and
amendments thereto, until the contract or amendments to a contract is
open to inspection pursuant to paragraph (3).
(w) (1) Records of the Major Risk Medical Insurance Program
related to activities governed by Chapter 14 (commencing with Section
10700) of Part 2 of Division 2 of the Insurance Code, and that
reveal the deliberative processes, discussions, communications, or
any other portion of the negotiations with health plans, or the
impressions, opinions, recommendations, meeting minutes, research,
work product, theories, or strategy of the board or its staff, or
records that provide instructions, advice, or training to employees.
(2) Except for the portion of a contract that contains the rates
of payment, contracts for health coverage entered into pursuant to
Chapter 14 (commencing with Section 10700) of Part 2 of Division 2 of
the Insurance Code, on or after January 1, 1993, shall be open to
inspection one year after they have been fully executed.
(3) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The Joint Legislative Audit
Committee shall maintain the confidentiality of the contracts and
amendments thereto, until the contract or amendments to a contract is
open to inspection pursuant to paragraph (2).
(x) Financial data contained in applications for registration, or
registration renewal, as a service contractor filed with the Director
of the Department of Consumer Affairs pursuant to Chapter 20
(commencing with Section 9800) of Division 3 of the Business and
Professions Code, for the purpose of establishing the service
contractor's net worth, or, financial data regarding the funded
accounts held in escrow for service contracts held in force in this
state by a service contractor.
(y) (1) Records of the Managed Risk Medical Insurance Board
related to activities governed by Part 6.2 (commencing with Section
12693) of Division 2 of the Insurance Code, and that reveal the
deliberative processes, discussions, communications, or any other
portion of the negotiations with health plans, or the impressions,
opinions, recommendations, meeting minutes, research, work product,
theories, or strategy of the board or its staff, or records that
provide instructions, advice, or training to employees.
(2) (A) Except for the portion of a contract that contains the
rates of payment, contracts entered into pursuant to Part 6.2
(commencing with Section 12693) of Division 2 of the Insurance Code,
on or after January 1, 1998, shall be open to inspection one year
after they have been fully executed.
(B) In the event that a contract entered into pursuant to Part 6.2
(commencing with Section 12693) of Division 2 of the Insurance Code
is amended, the amendment shall be open to inspection one year after
the amendment has been fully executed.
(3) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The Joint Legislative Audit
Committee shall maintain the confidentiality of the contracts and
amendments thereto until the contract or amendments to a contract are
open to inspection pursuant to paragraph (2) or (3).
Nothing in this section prevents any agency from opening its
records concerning the administration of the agency to public
inspection, unless disclosure is otherwise prohibited by law.
Nothing in this section prevents any health facility from
disclosing to a certified bargaining agent relevant financing
information pursuant to Section 8 of the National Labor Relations
Act.
SEC. 84. Chapter 12.8 (commencing with Section 7070) of Division 7
of Title 1 of the Government Code, as added by Chapter 953 of the
Statutes of 1997, is repealed.
SEC. 85. Section 12940 of the Government Code is amended to read:
12940. It shall be an unlawful employment practice, unless based
upon a bona fide occupational qualification, or, except where based
upon applicable security regulations established by the United States
or the State of California:
(a) For an employer, because of the race, religious creed, color,
national origin, ancestry, physical disability, mental disability,
medical condition, marital status, or sex of any person, to refuse to
hire or employ the person or to refuse to select the person for a
training program leading to employment, or to bar or to discharge the
person from employment or from a training program leading to
employment, or to discriminate against the person in compensation or
in terms, conditions, or privileges of employment.
(1) Nothing in this part shall prohibit an employer from refusing
to hire or discharging an employee with a physical or mental
disability, or subject an employer to any legal liability resulting
from the refusal to employ or the discharge of an employee with a
physical or mental disability, where the employee, because of his or
her physical or mental disability, is unable to perform his or her
essential duties even with reasonable accommodations, or cannot
perform those duties in a manner that would not endanger his or her
health or safety or the health and safety of others even with
reasonable accommodations.
(2) Nothing in this part shall prohibit an employer from refusing
to hire or discharging an employee who, because of the employee's
medical condition, is unable to perform his or her essential duties
even with reasonable accommodations, or cannot perform those duties
in a manner that would not endanger the employee's health or safety
or the health or safety of others even with reasonable
accommodations. Nothing in this part shall subject an employer to
any legal liability resulting from the refusal to employ or the
discharge of an employee who, because of the employee's medical
condition, is unable to perform his or her essential duties, or
cannot perform those duties in a manner that would not endanger the
employee's health or safety or the health or safety of others even
with reasonable accommodations.
(3) Nothing in this part relating to discrimination on account of
marital status shall do either of the following:
(A) Affect the right of an employer to reasonably regulate, for
reasons of supervision, safety, security, or morale, the working of
spouses in the same department, division, or facility, consistent
with the rules and regulations adopted by the commission.
(B) Prohibit bona fide health plans from providing additional or
greater benefits to employees with dependents than to those employees
without or with fewer dependents.
(4) Nothing in this part relating to discrimination on account of
sex shall affect the right of an employer to use veteran status as a
factor in employee selection or to give special consideration to
Vietnam era veterans.
(b) For a labor organization, because of the race, religious
creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, or sex of any person,
to exclude, expel or restrict from its membership the person, or to
provide only second-class or segregated membership or to discriminate
against any person because of the race, religious creed, color,
national origin, ancestry, physical disability, mental disability,
medical condition, marital status, or sex of the person in the
election of officers of the labor organization or in the selection of
the labor organization's staff or to discriminate in any way against
any of its members or against any employer or against any person
employed by an employer.
(c) For any person to discriminate against any person in the
selection or training of that person in any apprenticeship training
program or any other training program leading to employment because
of the race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital
status, or sex of the
person discriminated against.
(d) For any employer or employment agency, unless specifically
acting in accordance with federal equal employment opportunity
guidelines and regulations approved by the commission, to print or
circulate or cause to be printed or circulated any publication, or to
make any non-job-related inquiry, either verbal or through use of an
application form, which expresses, directly or indirectly, any
limitation, specification, or discrimination as to race, religious
creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, or sex, or any intent
to make that limitation, specification or discrimination. Except as
provided in the Americans with Disabilities Act of 1990 (Public Law
101-336) and the regulations adopted pursuant thereto, nothing in
this subdivision shall prohibit any employer from making, in
connection with prospective employment, an inquiry as to, or a
request for information regarding, the physical fitness, medical
condition, physical condition, or medical history of applicants if
that inquiry or request for information is directly related and
pertinent to the position the applicant is applying for or directly
related to a determination of whether the applicant would endanger
his or her health or safety or the health or safety of others.
(e) For any employer, labor organization, or employment agency to
harass, discharge, expel, or otherwise discriminate against any
person because the person has made a report pursuant to Section
11161.8 of the Penal Code, which prohibits retaliation against
hospital employees who report suspected patient abuse by health
facilities or community care facilities.
(f) For any employer, labor organization, employment agency, or
person to discharge, expel, or otherwise discriminate against any
person because the person has opposed any practices forbidden under
this part or because the person has filed a complaint, testified, or
assisted in any proceeding under this part.
(g) For any person to aid, abet, incite, compel, or coerce the
doing of any of the acts forbidden under this part, or to attempt to
do so.
(h) (1) For an employer, labor organization, employment agency,
apprenticeship training program or any training program leading to
employment, or any other person, because of race, religious creed,
color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, sex, or age, to harass
an employee or applicant. Harassment of an employee or applicant by
an employee other than an agent or supervisor shall be unlawful if
the entity, or its agents or supervisors, knows or should have known
of this conduct and fails to take immediate and appropriate
corrective action. An entity shall take all reasonable steps to
prevent harassment from occurring. Loss of tangible job benefits
shall not be necessary in order to establish harassment.
(2) This subdivision is declaratory of existing law, except for
the new duties imposed on employers with regard to harassment.
(3) (A) For purposes of this subdivision only, "employer" means
any person regularly employing one or more persons, or any person
acting as an agent of an employer, directly or indirectly, the state,
or any political or civil subdivision thereof, and cities.
(B) Notwithstanding subparagraph (A), for purposes of this
subdivision, "employer" does not include a religious association or
corporation not organized for private profit.
(C) For purposes of this subdivision, "harassment" because of sex
includes sexual harassment, gender harassment, and harassment based
on pregnancy, childbirth, or related medical conditions.
(4) For other types of discrimination as enumerated in subdivision
(a), an employer remains as defined in subdivision (d) of Section
12926.
(5) Nothing contained in this subdivision shall be construed to
apply the definition of employer found in this subdivision to
subdivision (a).
(i) For an employer, labor organization, employment agency,
apprenticeship training program, or any training program leading to
employment, to fail to take all reasonable steps necessary to prevent
discrimination and harassment from occurring.
(j) For an employer or other entity covered by this part to refuse
to hire or employ a person or to refuse to select a person for a
training program leading to employment or to bar or to discharge a
person from employment or from a training program leading to
employment, or to discriminate against a person in compensation or in
terms, conditions, or privileges of employment because of a conflict
between the person's religious belief or observance and any
employment requirement, unless the employer or other entity covered
by this part demonstrates that it has explored any available
reasonable alternative means of accommodating the religious belief or
observance, including the possibilities of excusing the person from
those duties that conflict with his or her religious belief or
observance or permitting those duties to be performed at another time
or by another person, but is unable to reasonably accommodate the
religious belief or observance without undue hardship on the conduct
of the business of the employer or other entity covered by this part.
Religious belief or observance, as used in this section, includes,
but is not limited to, observance of a Sabbath or other religious
holy day or days, and reasonable time necessary for travel prior and
subsequent to a religious observance.
(k) For an employer or other entity covered by this part to fail
to make reasonable accommodation for the known physical or mental
disability of an applicant or employee. Nothing in this subdivision
or in paragraph (1) or (2) of subdivision (a) shall be construed to
require an accommodation that is demonstrated by the employer or
other covered entity to produce undue hardship to its operation.
(l) Initial application of this section to discrimination by
employers on the basis of mental disability shall be in accordance
with the following schedule:
(1) Commencing January 1, 1993, for employers with 25 or more
employees, the state, and its municipalities and political
subdivisions.
(2) Commencing July 26, 1994, for all other employers specified in
paragraph (2) of the subdivision of Section 12926 that defines
"employer."
SEC. 86. Section 15814.26 of the Government Code is amended to
read:
15814.26. A local government that enters into an energy service
contract with the State Public Works Board pursuant to this chapter
shall do both of the following:
(a) Include in the contract specific provisions to meet its energy
service contract obligation determined pursuant to this chapter.
(b) Authorize the Controller, as part of the energy service
contract, to withhold sufficient payments, from specific moneys that
it otherwise would receive from the state, in order to meet its
annual energy service contract obligation determined pursuant to this
chapter, if the provisions of subdivision (a) are for any reason
insufficient to meet that annual energy service contract obligation.
SEC. 87. Section 15814.27 of the Government Code is amended to
read:
15814.27. If a local government enters into an energy service
contract with the State Public Works Board pursuant to this chapter,
its governing body shall annually budget and appropriate the amounts
payable under that energy service contract during that fiscal year.
If the governing body fails or neglects to make the appropriations,
the officer of the local government with responsibility for
disbursing its funds shall transfer, from any money available in any
fund of the treasury of that local government, the sums necessary to
meet its energy service contract obligation determined pursuant to
this chapter, and this transfer shall have the same force and effect
as it would have had if the required appropriation had been made by
the governing body of the local government.
SEC. 88. Section 21290 of the Government Code is amended to read:
21290. (a) Upon the legal separation or dissolution of marriage
of a member, the court shall include in the judgment or a court order
the date on which the parties separated.
(b) If the community property is divided in accordance with
paragraph (3) of subdivision (a) of Section 2610 of the Family Code,
the court shall order that the accumulated contributions and service
credit attributable to periods of service during the marriage be
divided into two separate and distinct accounts in the name of the
member and the nonmember, respectively. Any service credit or
accumulated contributions that are not explicitly awarded by the
judgment or court order shall be deemed the exclusive property of the
member.
(c) The court shall address the rights of the nonmember to the
following:
(1) The right to a retirement allowance, and the consequent right
to elect an optional settlement and designate a beneficiary.
(2) The right to a refund of accumulated contributions.
(3) The right to redeposit accumulated contributions that are
eligible for redeposit by the member under Sections 20750 and 20752.
(4) The right to purchase service credit that is eligible for
purchase by the member under Article 4 (commencing with Section
20990) and Article 5 (commencing with Section 21020) of Chapter 11.
(5) The right to designate a beneficiary to receive his or her
accumulated contributions payable where death occurs prior to
retirement.
(6) The right to designate a beneficiary for any unpaid allowance
payable at the time of the nonmember's death.
(7) The right to elect coverage in the Second Tier for that member
service that is subject to the Second Tier, provided that the
election is made within one year of the establishment of the
nonmember account or prior to the nonmember's retirement, whichever
occurs first. Immediately upon establishment of a nonmember account,
the board shall provide, by certified mail, the necessary form and
information so that the election may be made.
(d) In the capacity of nonmember, he or she shall not be entitled
to any disability or industrial disability retirement allowance, any
basic death benefit, any special death benefit, any monthly allowance
for survivors of a member or retired person, any insurance benefit,
or retired member lump-sum death benefit. No survivor continuance
allowance shall be payable to a survivor of a nonmember.
SEC. 89. Section 22825.5 of the Government Code is amended to
read:
22825.5. (a) A contracting agency may amend its contract to
provide that subdivision (c) of Section 22825.3 is applicable to
employees who retire for service and who are first employed after the
operative date of the amendment if the contract is amended to
contain the following provisions:
(1) The employer's contribution for each officer, employee, or
annuitant shall be based upon the principles prescribed for state
officers, employees, or annuitants in Section 22825.1.
(2) The employer has, in the case of employees represented by a
bargaining unit, reached an agreement with that bargaining unit to be
subject to this section for the period specified in that memorandum
of understanding.
(3) The employer certifies to the board, in the case of employees
not represented by a bargaining unit, that there is no applicable
memorandum of understanding.
(4) The credited service for purposes of determining the
percentage of employer contributions applicable under this section
shall mean service as defined in Section 20069, except that not less
than five years of that service shall be performed entirely with that
employer.
(5) The employer agrees to provide the board any information
requested necessary to implement this section.
(b) This section shall apply to the Calaveras County Water
District, the Alameda County Water District, the City of Fontana, and
the City of Lincoln.
SEC. 90. Section 29550.2 of the Government Code, as added by
Chapter 697 of the Statutes of 1992, is repealed.
SEC. 91. Section 51017.1 of the Government Code is amended to
read:
51017.1. (a) Utilizing GIS-based location information furnished
by the State Department of Health Services and the State Water
Resources Control Board, at least once every two years the State Fire
Marshal shall determine the identity of each pipeline or pipeline
segment that is regulated by the State Fire Marshal pursuant to this
chapter that transports petroleum product when that pipeline is
located within 1,000 feet of a public drinking water well.
(b) With assistance from the State Department of Health Services
and the State Water Resources Control Board, the State Fire Marshal
shall notify the operator of the pipelines identified in subdivision
(a) of the following information:
(1) That the specific pipeline or pipeline segment has been
identified as being located within 1,000 feet of a public drinking
water well.
(2) The name of the water purveyor and the location of the public
drinking water well affected. With advice from the GIS mapping
advisory committee, created pursuant to subdivision (b) of Section
25299.97 of the Health and Safety Code, the identification of the
pipelines and notification of pipeline owners by the State Fire
Marshal pursuant to subdivision (a) and this subdivision shall begin
once the GIS mapping system created by Section 25299.97 of the Health
and Safety Code is able to provide accurate and useful information
on pipeline and wellhead locations.
(c) Each pipeline operator notified pursuant to subdivision (b)
shall prepare a pipeline wellhead protection plan as required by
Section 51017.2 and submit the plan to the State Fire Marshal within
180 days from the date of either receiving the notification specified
in subdivision (b), or adoption of regulations by the State Fire
Marshal pursuant to Section 51017.2, whichever is later.
(d) With the advice of the State Department of Health Services,
the State Water Resources Control Board, appropriate California
regional water quality control boards, and local water purveyors, the
State Fire Marshal shall review each wellhead protection plan
submitted by a pipeline operator, and approve those plans that meet
the criteria of the regulations adopted by the State Fire Marshal
pursuant to Section 51017.2. The State Fire Marshal shall have
discretion to allow a wellhead protection plan to address multiple
wellheads where the conditions creating the risk to the wellheads are
substantially similar. The pipeline operator shall implement the
wellhead protection plan within 180 days from the date of receiving
approval from the State Fire Marshal.
(e) Each pipeline operator having a wellhead protection plan
approved by the State Fire Marshal pursuant to subdivision (d) shall
evaluate that plan at least once every five years to ensure that the
plan is in compliance with the current regulations established by the
State Fire Marshal pursuant to Section 51017.2. The pipeline
operator shall provide either written documentation to the State Fire
Marshal that the previously approved wellhead protection plan has
been evaluated and that no changes are warranted, or submit a new
wellhead protection plan to remain in compliance with existing
regulations or to meet the requirements of regulations adopted since
the plan was approved.
(f) The pipeline operator subject to subdivision (c) may petition
the State Fire Marshal in writing for an exemption from the
requirements of subdivision (c). With advice from the State Water
Resources Control Board, the State Department of Health Services, the
California regional water quality control boards, and local water
purveyors, the State Fire Marshal may approve the exemption if the
petition demonstrates that the pipeline either does not transport
motor vehicle fuel, or does not pose a significant threat to the
public drinking water well based upon, but not limited to, the
following criteria:
(1) Pipeline parameters, such as operation pressure, operating
temperature, age, design, fabrication materials, construction,
corrosive nature of the surrounding soil, cathodic protection, and
feasibility of internal inspection or evaluation tools (smart pigs).
(2) Hydrogeologic parameters, such as soil permeability, direction
and velocity of groundwater flow, aquifer location or depth, and
hydrogeologic barriers or conduits.
(3) Water well parameters, such as depth of well and well
construction.
(4) The nature of the fuel and its ability to migrate to public
drinking water wells.
(5) The impact of human activity that may elevate or reduce the
risk to the drinking water well.
SEC. 92. Section 53125 of the Government Code is amended to read:
53125. (a) The Legislature finds and declares that the efficient
and effective use of the "911" emergency telephone system has
recently been compromised by an increase in nonemergency calls to
that number. The Legislature further finds and declares that these
nonemergency calls can burden the "911" system, diverting "911"
call-takers and radio dispatchers from true emergencies. For these
reasons, the Legislature finds and declares that a need exists to
implement procedures to limit the use of the "911" system to true
emergencies, and to provide citizens with an alternative phone system
for nonemergencies. The purpose of the pilot program is to assess
whether the establishment of a "311" nonemergency telephone system
will substantially decrease the use of the "911" system for
nonemergencies.
(b) The Division of Telecommunications of the Department of
General Services shall conduct a pilot program to evaluate
alternative means to reduce the use of the "911" telephone number for
nonemergency assistance. The pilot program shall consist of the
following two approaches:
(1) The use of a "311" telephone number as a means of reaching
local public safety agencies for nonemergency assistance.
(2) Improved marketing of the use of and access to existing
nonemergency telephone numbers for nonemergency assistance, which may
include, but shall not be limited to, providing decals for each
individual telephone within the study area, which include the
nonemergency telephone numbers of public safety entities serving the
area in which the telephone is located.
(c) The pilot program shall be implemented as soon as the Division
of Telecommunications determines that it is practicable to do so,
but in no event later than July 1, 1998. The division may select one
or more locations to implement the pilot program, and shall, to the
extent possible, select areas with comparable characteristics to
serve as a study area for one of the two approaches specified in
subdivision (b) to permit reasonable comparisons of the two
alternative approaches, and is encouraged to share the costs of the
pilot program with the local agency or agencies. Participation in
the pilot program shall be on a voluntary basis on the part of the
local agency or agencies. The division shall assess the
effectiveness of each of the two approaches specified in subdivision
(b) by evaluating the following factors:
(1) The overall impact of each of the two approaches specified in
subdivision (b) on the "911" system.
(2) The costs associated with the establishment, operation, and
maintenance of either approach specified in subdivision (b).
(3) The difficulties associated with appropriately routing
emergency calls placed to the "311" telephone number or the existing
nonemergency telephone number.
(4) The staffing requirements for "311" operators as compared to
"911" dispatchers.
(5) Whether the use of either the "311" number or the existing
nonemergency telephone number has caused confusion to the public,
particularly with respect to the mistaken use of either "311" or the
existing nonemergency telephone number instead of "911" by children.
(d) The pilot program shall be deemed to have demonstrated the
success of either approach specified in subdivision (b) if the
assessment required by subdivision (c) finds that the "311" telephone
number or the existing nonemergency telephone number does not create
confusion with the "911" program and finds that either approach
specified in subdivision (b) has contributed to:
(1) Reducing "911" calls.
(2) Improving answer time for "911" calls.
(3) Reducing unanswered "911" calls.
(4) Reducing nonemergency "911" calls.
(e) The division shall submit a report to the Governor and the
Legislature on the results of the pilot program and its assessment
and comparison of each approach specified in subdivision (b) by July
1, 1999.
(f) This section shall remain in effect until January 1, 2000.
SEC. 93. Section 54902.5 of the Government Code is amended to
read:
54902.5. (a) Notwithstanding Section 6103, the State Board of
Equalization shall establish a schedule of fees for filing and
processing the statements and maps or plats that are required to be
filed with the board pursuant to Section 54902.
(1) The schedule shall not include any fee that exceeds the
reasonably anticipated cost to the board of performing the work to
which the fee relates, or an amount equal to 25 percent of the
anticipated total tax revenue that will be collected by the city or
district during the first full fiscal year, beginning on July 1, that
the boundary changes are effective, as determined by the county
auditor, whichever amount is less.
(2) For purposes of this subdivision, "anticipated total tax
revenue" means the tax revenues that will be allocated to the city or
district from all property located within the boundaries of the city
or district, including the area affected by the boundary change.
(b) The city, district, or executive officer of a local agency
formation commission, forwarding the statement to the tax or
assessment levying authority for filing pursuant to Section 54900,
shall accompany the statement with the necessary fee for transmittal
to the board. However, with respect to a newly created city or
district, no fee shall be required until the time that the city or
district receives its first revenues.
SEC. 94. The heading of Chapter 2.1 (commencing with Section
68650) of Title 8 of the Government Code, as added by Chapter 869 of
the Statutes of 1997, is amended and renumbered to read:
CHAPTER 2.3. CALIFORNIA HABEAS RESOURCE CENTER
SEC. 95. Section 68650 of the Government Code, as added by Section
3 of Chapter 869 of the Statutes of 1997, is amended and renumbered
to read:
68660. As used in this chapter, "center" means the California
Habeas Resource Center, and "board" means the board of directors of
the center.
SEC. 96. Section 68651 of the Government Code, as added by Section
3 of Chapter 869 of the Statutes of 1997, is amended and renumbered
to read:
68661. There is hereby created in the judicial branch of state
government the California Habeas Resource Center, which shall have
all of the following general powers and duties:
(a) To employ up to 30 attorneys who may be appointed by the
Supreme Court to represent any person convicted and sentenced to
death in this state, who is without counsel and who is determined by
a court of competent jurisdiction to be indigent, for the purpose of
instituting and prosecuting postconviction actions in the state and
federal courts, challenging the legality of the judgment or sentence
imposed against that person, and preparing petitions for executive
clemency. Any such appointment may be concurrent with the
appointment of the State Public Defender or other counsel for
purposes of direct appeal under Section 11 of Article VI of the
California Constitution.
(b) To file motions seeking compensation for representation and
reimbursement for expenses pursuant to Section 3006A of Title 18 of
the United States Code when providing representation to indigent
persons in the federal courts, and transmit those payments to the
treasurer for deposit in a special account in the General Fund which,
upon appropriation, shall be available for the purposes of the
center.
(c) To work with the Supreme Court in recruiting members of the
private bar to accept death penalty habeas case appointments.
(d) To establish and periodically update a roster of attorneys
qualified as counsel in postconviction proceedings in capital cases.
(e) To establish and periodically update a roster of experienced
investigators and experts who are qualified to assist counsel in
postconviction proceedings in capital cases.
(f) To employ investigators and experts as staff to provide
services to appointed counsel upon request of counsel, provided that
where the provision of those services is to private counsel under
appointment by the Supreme Court, those services shall be pursuant to
contract between appointed counsel and the center.
(g) To provide legal or other advice or, to the extent not
otherwise available, any other assistance to appointed counsel in
postconviction proceedings as is appropriate where not prohibited by
law.
(h) To develop a brief bank of pleadings and related materials on
significant, recurring issues which arise in postconviction
proceedings in capital cases and to make those briefs available to
appointed counsel.
(i) To evaluate cases and recommend assignment by the court of
appropriate attorneys.
(j) To provide assistance and case progress monitoring as needed.
(k) To timely review case billings and recommend compensation of
members of the private bar to the court.
(l) The center shall annually report to the Legislature, the
Governor, and the Supreme Court on the status of the appointment of
counsel for indigent prisoners in postconviction capital cases, and
on the operations of the office. On or before January 1, 2000, the
office of the Legislative Analyst shall evaluate the available
reports.
SEC. 97. Section 68652 of the Government Code, as added by Section
3 of Chapter 869 of the Statutes of 1997, is amended and renumbered
to read:
68662. The Supreme Court shall offer to appoint counsel to
represent all state prisoners subject to a capital sentence for
purposes of state postconviction proceedings, and shall enter an
order containing one of the following:
(a) The appointment of one or more counsel to represent the
prisoner in postconviction state proceedings upon a finding that the
person is indigent and has accepted the offer to appoint counsel or
is unable to competently decide whether to accept or reject that
offer.
(b) A finding, after
a hearing if necessary, that the prisoner rejected the offer to
appoint counsel and made that decision with full understanding of the
legal consequences of the decision.
(c) The denial to appoint counsel upon a finding that the person
is not indigent.
SEC. 98. Section 68653 of the Government Code, as added by Section
3 of Chapter 869 of the Statutes of 1997, is amended and renumbered
to read:
68663. No counsel appointed to represent a state prisoner under
capital sentence in state postconviction proceedings shall have
previously represented the prisoner at trial or on direct appeal in
the case for which the appointment is made, unless the prisoner and
counsel expressly requests continued representation.
SEC. 99. Section 68654 of the Government Code, as added by Section
3 of Chapter 869 of the Statutes of 1997, is amended and renumbered
to read:
68664. (a) The center shall be managed by an executive director
who shall be responsible for the day-to-day operations of the center.
(b) The executive director shall be chosen by a five-member board
of directors and confirmed by the Senate. Each Appellate Project
shall appoint one board member, all of whom shall be attorneys.
However, no attorney who is employed as a judge, prosecutor, or in a
law enforcement capacity shall be eligible to serve on the board.
The executive director shall serve at the will of the board.
(c) Each member of the board shall be appointed to serve a
four-year term, and vacancies shall be filled in the same manner as
the original appointment. Members of the board shall receive no
compensation, but shall be reimbursed for all reasonable and
necessary expenses incidental to their duties. The first members of
the board shall be appointed no later than February 1, 1998.
(d) The executive director shall meet the appointment
qualifications of the State Public Defender as specified in Section
15400.
(e) The executive director shall receive the salary that shall be
specified for the executive director in Chapter 6 (commencing with
Section 11550) of Part 1 of Division 3 of Title 2.
SEC. 100. Section 68655 of the Government Code, as added by
Section 3 of Chapter 869 of the Statutes of 1997, is amended and
renumbered to read:
68665. The Judicial Council and the Supreme Court shall adopt, by
rule of court, binding and mandatory competency standards for the
appointment of counsel in death penalty direct appeals and habeas
corpus proceedings.
SEC. 100.5. Section 68656 of the Government Code, as added by
Section 3 of Chapter 869 of the Statutes of 1997, is amended and
renumbered to read:
68666. (a) The Supreme Court may compensate counsel representing
indigent defendants in automatic appeals arising out of a judgment of
death or for state postconviction proceedings in those cases, at a
rate of at least one hundred twenty-five dollars ($125) per allowable
hour, as defined by the court's Payment Guidelines for Appointed
Counsel Representing Indigent Criminal Appellants. However, nothing
in this section is intended to prohibit the hiring of counsel under a
flat-fee arrangement.
(b) The Supreme Court may raise the guideline limitation on
investigative and other expenses allowable for counsel to adequately
investigate and present collateral claims to up to twenty-five
thousand dollars ($25,000) without an order to show cause.
(c) It is the intent of the Legislature that payments to appointed
counsel be made within 60 days of submission of a billing.
SEC. 101. Section 73759 of the Government Code is amended to read:
73759. (a) Clerical employees of the district may be appointed,
as follows:
(1) Borden Division:
(A) One municipal court supervisor who shall receive the salary
specified in range 15.5 to increase to range 17 effective February 1,
1997.
(B) Two municipal court clerks III who shall receive the salary
specified in range 12, to increase to range 13 effective April 1,
1997.
(C) Two and one-half municipal court clerks II who shall receive
the salary specified in range 11, to increase to range 12 effective
March 1, 1997.
(2) Chowchilla Division:
(A) One municipal court supervisor who shall receive the salary
specified in range 16.5.
(B) Two municipal court clerks III's who shall receive the salary
specified in range 12, to increase to range 13 effective April 1,
1997.
(C) One municipal court clerk II who shall receive the salary
specified in range 11, to increase to range 12 effective March 1,
1997.
(3) Madera Division:
(A) One municipal court supervisor who shall receive the salary
specified in range 15.5, to increase to range 17 effective February
1, 1997.
(B) One senior municipal court clerk who shall receive the salary
specified in range 14 effective February 1, 1997.
(C) One municipal court clerk III who shall receive the salary
specified in range 12, to increase to range 13, effective April 1,
1997.
(D) Eight and one-quarter municipal court clerks I or II.
Municipal court clerks I shall receive the salary specified in range
8.5 to increase to 9.5 effective March 1, 1997. Municipal court
clerks II shall receive the salary specified in range 11, to increase
to range 12 effective March 1, 1997.
(E) One office assistant I who shall receive the salary specified
in range 5.
(F) One court interpreter who shall receive the salary specified
in range 34 (Table B).
(4) Sierra Division:
(A) One municipal court supervisor who shall receive the salary
specified in range 15.5, to increase to range 17 effective February
1, 1997.
(B) Two municipal court clerks III who shall receive the salary
specified in range 12, to increase to range 13 effective April 1,
1997.
(C) Two municipal court clerks II who shall receive the salary
specified in range 11, to increase to range 12 effective March 1,
1997.
(b) Notwithstanding the provisions of Article 4 (commencing with
Section 72150), and the provisions of this article, whenever the
business of the district requires a greater number of employees in
order to effectively carry out the duties and functions of the
respective divisions, a majority of the judges of the district may,
with the approval of the board, establish new positions for officers,
attaches, and employees in addition to those provided by this
article. The order and approval establishing those positions shall
designate the position, title, and salary range for each position.
(c) At the request of the judges of the district, the county
personnel department shall assist in the recruitment and examination
of court personnel. Personnel hired or appointed as official
reporters, official interpreters, staff attorneys, administrators, or
other nonclerical positions on or after the effective date of this
article shall serve at, and may be terminated at, the pleasure of the
majority of the judges of the district. Other provisions of the
county civil service or personnel rules or procedures do not apply to
those court employees unless made applicable by local court rule.
Benefits other than salary shall, for all court personnel, be the
same as are now or may be hereafter be provided to equivalent county
classifications, as that equivalency is determined by agreement of
the majority of the judges of the district and the board, but shall
not exceed those provided for equivalent county classifications. To
the extent necessary, and for the sole purpose of implementing the
intent of this subdivision, court employees shall be deemed county
employees for inclusion in those benefit programs provided to county
employees as a group or groups. All court employees, except pro
tempore court reporters shall, if otherwise eligible under statutory
and retirement system membership requirements, be included in the
county's retirement system.
SEC. 102. Section 75050 of the Government Code is amended to read:
75050. (a) Upon the legal separation or dissolution of marriage
of a member, the court shall include in the judgment or a court order
the date on which the parties separated.
(b) If the court orders the division of the community property
interest in the system pursuant to paragraph (3) of subdivision (a)
of Section 2610 of the Family Code, the accumulated contributions and
service credit attributable to periods of service during the
marriage shall be divided into two separate and distinct accounts in
the name of the member and nonmember, respectively. Any service
credit or accumulated contributions which are not explicitly awarded
by the judgment or court order shall be deemed the exclusive property
of the member.
(c) Upon receipt of the court order separating the account of the
member and the nonmember pursuant to this section, the board shall
determine the rights of the nonmember, taking into consideration the
court order and the account of the member. These rights may include
the following:
(1) The right to a retirement allowance.
(2) The right to a refund of accumulated retirement contributions.
(3) The right to redeposit accumulated contributions which are
eligible for redeposit by the member under Section 75028.5.
(4) The right to purchase service credit which is eligible for
purchase by the member under Sections 75029 to 75030.5.
(5) The right to designate a beneficiary to receive his or her
accumulated contributions payable where death occurs prior to
retirement.
(6) The right to designate a beneficiary for any unpaid allowance
payable at the time of the nonmember's death.
(d) In the capacity of nonmember, the nonmember shall not be
entitled to any disability retirement allowance.
SEC. 103. Section 95022 of the Government Code is amended to read:
95022. The statewide system of early intervention shall be
administered by the State Department of Developmental Services in
collaboration with the State Department of Education and with the
advice and assistance of an interagency coordinating council
established pursuant to federal regulations and shall include all of
the following mandatory components:
(a) A central directory that includes information about early
intervention services, resources, and experts available in the state,
professionals and other groups providing services to eligible
infants and toddlers, and research and demonstration projects being
conducted in the state. The central directory shall specify the
nature and scope of the services available and the telephone number
and address for each of the sources listed in the directory.
(b) A public awareness program focusing on early identification of
eligible infants and toddlers and the dissemination of information
about the purpose and scope of the system of early intervention
services and how to access evaluation and other early intervention
services.
(c) Personnel standards that ensure that personnel are
appropriately and adequately prepared and trained.
(d) A comprehensive system of personnel development that provides
training for personnel including, but not limited to, public and
private providers, primary referral sources, paraprofessionals, and
persons who will serve as service coordinators. The training shall
specifically address at least all of the following:
(1) Understanding the early intervention services system,
including the family service plan process.
(2) Meeting the interrelated social, emotional, and health needs
of eligible infants and toddlers.
(3) Assisting families in meeting the special developmental needs
of the infant or toddler, assisting professionals to utilize best
practices in family focused early intervention services and promoting
family professional collaboration.
(4) Reflecting the unique needs of local communities and promoting
culturally competent service delivery.
(e) A comprehensive child-find system, including policies and
procedures that ensure that all infants and toddlers who may be
eligible for services under this title are identified, located, and
evaluated, that services are coordinated between participating
agencies, and that infants and toddlers are referred to the
appropriate agency.
(f) A surrogate parent program established pursuant to Section
303.406 of Title 34 of the Code of Federal Regulations to be used by
regional centers and local education agencies.
SEC. 104. Section 651 of the Harbors and Navigation Code, as
amended by Chapter 1106 of the Statutes of 1989, is repealed.
SEC. 105. Section 1206 of the Health and Safety Code is amended to
read:
1206. This chapter does not apply to the following:
(a) Except with respect to the option provided with regard to
surgical clinics in paragraph (1) of subdivision (b) of Section 1204
and, further, with respect to specialty clinics specified in
paragraph (2) of subdivision (b) of Section 1204, any place or
establishment owned or leased and operated as a clinic or office by
one or more licensed health care practitioners and used as an office
for the practice of their profession, within the scope of their
license, regardless of the name used publicly to identify the place
or establishment.
(b) Any clinic directly conducted, maintained or operated by the
United States or by any of its departments, officers, or agencies,
and any primary care clinic specified in subdivision (a) of Section
1204 which is directly conducted, maintained, or operated by this
state or by any of its political subdivisions or districts, or by any
city. Nothing in this subdivision precludes the state department
from adopting regulations which utilize clinic licensing standards as
eligibility criteria for participation in programs funded wholly or
partially under Title XVIII or XIX of the federal Social Security
Act.
(c) Any clinic conducted, maintained, or operated by a federally
recognized Indian tribe or tribal organization, as defined in Section
450 or 1601 of Title 25 of the United States Code, and which is
located on land recognized as tribal land by the federal government.
(d) Clinics conducted, operated, or maintained as outpatient
departments of hospitals.
(e) Any facility licensed as a health facility under Chapter 2
(commencing with Section 1250).
(f) Any freestanding clinical or pathological laboratory licensed
under Chapter 3 (commencing with Section 1200) of Division 2 of the
Business and Professions Code.
(g) A clinic operated by, or affiliated with, any institution of
learning which teaches a recognized healing art and is approved by
the state board or commission vested with responsibility for
regulation of the practice of that healing art.
(h) A clinic which is operated by a primary care community or free
clinic and which is operated on separate premises from the licensed
clinic and is only open for limited services of no more than 20 hours
a week. An intermittent clinic as described in this paragraph
shall, however, meet all other requirements of law, including
administrative regulations and requirements, pertaining to fire and
life safety.
(i) The offices of physicians in group practice who provide a
preponderance of their services to members of a comprehensive group
practice prepayment health care service plan subject to Chapter 2.2
(commencing with Section 1340) of Division 2.
(j) Student health centers operated by public institutions of
higher education.
(k) Nonprofit speech and hearing centers, as defined in Section
1201.5. Any nonprofit speech and hearing clinic desiring an
exemption under this subdivision shall make application therefor to
the director, who shall grant the exception to any facility meeting
the criteria of Section 1201.5. Notwithstanding the licensure
exemption contained in this subdivision, a nonprofit speech and
hearing center shall be deemed to be an organized outpatient clinic
for purposes of qualifying for reimbursement as a rehabilitation
center under the Medi-Cal Act, Chapter 7 (commencing with Section
14000) of Part 3 of Division 9 of the Welfare and Institutions Code.
(l) A clinic operated by a nonprofit corporation exempt from
federal income taxation under paragraph (3) of subsection (c) of
Section 501 of the Internal Revenue Code of 1954, as amended, or a
statutory successor thereof, which conducts medical research and
health education and provides health care to its patients through a
group of 40 or more physicians and surgeons, who are independent
contractors representing not less than 10 board-certified
specialties, and not less than two-thirds of whom practice on a
full-time basis at the clinic.
(m) Any clinic, limited to in vivo diagnostic services by magnetic
resonance imaging functions or radiological services under the
direct and immediate supervision of a physician and surgeon who is
licensed to practice in California. This shall not be construed to
permit cardiac catheterization or any treatment modality in these
clinics.
(n) A clinic operated by an employer or jointly by two or more
employers for their employees only, or by a group of employees, or
jointly by employees and employers, without profit to the operators
thereof or to any other person, for the prevention and treatment of
accidental injuries to, and the care of the health of, the employees
comprising the group.
(o) A community mental health center as defined in Section 5601.5
of the Welfare and Institutions Code.
(p) (1) A clinic operated by a nonprofit corporation exempt from
federal income taxation under paragraph (3) of subsection (c) of
Section 501 of the Internal Revenue Code of 1954, as amended, or a
statutory successor thereof, as an entity organized and operated
exclusively for scientific and charitable purposes and that satisfies
all of the following requirements:
(A) Commenced conducting medical research on or before January 1,
1982, and continues to conduct medical research.
(B) Conducted research in, among other areas, prostatic cancer,
cardiovascular disease, electronic neural prosthetic devices,
biological effects and medical uses of lasers, and human magnetic
resonance imaging and spectroscopy.
(C) Sponsored publication of at least 200 medical research
articles in peer-reviewed publications.
(D) Received grants and contracts from the National Institutes of
Health.
(E) Held and licensed patents on medical technology.
(F) Received charitable contributions and bequests totaling at
least five million dollars ($5,000,000).
(G) Provides health care services to patients only:
(i) In conjunction with research being conducted on procedures or
applications not approved or only partially approved for payment (I)
under the Medicare program pursuant to Section 1359y (a)(1)(A) of
Title 42 of the United States Code, or (II) by a health care service
plan registered under Chapter 2.2 (commencing with Section 1340) of
Division 2 or a disability insurer regulated under Chapter 1
(commencing with Section 10110) of Part 2 of Division 2 of the
Insurance Code; provided that services may be provided by the clinic
for an additional period of up to three years following such
approvals, but only to the extent necessary to maintain clinical
expertise in the procedure or application for purposes of actively
providing training in the procedure or application for physicians and
surgeons unrelated to the clinic.
(ii) Through physicians and surgeons who, in the aggregate, devote
no more than 30 percent of their professional time for the entity
operating, the clinic, on an annual basis, to direct patient care
activities for which charges for professional services are paid.
(H) Makes available to the public the general results of its
research activities on at least an annual basis, subject to good
faith protection of proprietary rights in its intellectual property.
(I) Is a freestanding clinic, whose operations under this
subdivision are not conducted in conjunction with any affiliated or
associated health clinic or facility defined under Division 2
(commencing with Section 1200), except a clinic exempt from licensure
under subdivision (m). For purposes of this subparagraph, a
freestanding clinic is defined as "affiliated" only if it directly,
or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, a clinic or health
facility defined under Division 2 (commencing with Section 1200),
except a clinic exempt from licensure under subdivision (m). For
purposes of this subparagraph, a freestanding clinic is defined as
"associated" only if more than 20 percent of the directors or
trustees of the clinic are also the directors or trustees of any
individual clinic or health facility defined under Division 2
(commencing with Section 1200), except a clinic exempt from licensure
under subdivision (m). Any activity by a clinic under this
subdivision in connection with an affiliated or associated entity
shall fully comply with the requirements of this subdivision. This
subparagraph shall not apply to agreements between a clinic and any
entity for purposes of coordinating medical research.
(2) This subdivision shall remain operative only until January 1,
2003. Prior to extending or deleting that operative date, the
Legislature shall receive a report from each clinic meeting the
criteria of this subdivision and any other interested party
concerning the operation of the clinic's activities. The report
shall include, but not be limited to, an evaluation of how the clinic
impacted competition in the relevant health care market, and a
detailed description of the clinic's research results and the level
of acceptance by the payer community of the procedures performed at
the clinic. The report shall also include a description of
procedures performed both in clinics governed by this subdivision and
those performed in other settings.
SEC. 106. Section 1357.52 of the Health and Safety Code is amended
to read:
1357.52. Except in the case of a late enrollee, or for
satisfaction of a preexisting condition clause in the case of initial
coverage of an eligible employee, a plan may not exclude any
eligible employee or dependent who would otherwise be entitled to
health care services on the basis of any of the following: the
health status, the medical condition, including both physical and
mental illnesses, the claims experience, the medical history, the
genetic information, or the disability or evidence of insurability
including conditions arising out of acts of domestic violence of that
employee or dependent. No plan contract may limit or exclude
coverage for a specific eligible employee or dependent by type of
illness, treatment, medical condition, or accident, except for
preexisting conditions as permitted by Section 1357.06.
SEC. 107. Section 1746 of the Health and Safety Code is amended to
read:
1746. As used in this chapter, the following definitions shall
apply:
(a) "Bereavement services" means those services available to the
surviving family members for a period of at least one year after the
death of the patient. These services shall include an assessment of
the needs of the bereaved family, and the development of a care plan
that meets these needs, both prior to, and following the death of the
patient.
(b) "Hospice" means a specialized form of interdisciplinary health
care that is designed to provide palliative care, alleviate the
physical, emotional, social, and spiritual discomforts of an
individual who is experiencing the last phases of life due to the
existence of a terminal disease, to provide supportive care to the
primary care giver and the family of the hospice patient, and which
meets all of the following criteria:
(1) Considers the patient and the patient's family, in addition to
the patient, as the unit of care.
(2) Utilizes an interdisciplinary team to assess the physical,
medical, psychological, social, and spiritual needs of the patient
and the patient's family.
(3) Requires the interdisciplinary team to develop an overall plan
of care and to provide coordinated care which emphasizes supportive
services, including, but not limited to, home care, pain control, and
limited inpatient services. Limited inpatient services are intended
to ensure both continuity of care and appropriateness of services
for those patients who cannot be managed at home because of acute
complications or the temporary absence of a capable primary care
giver.
(4) Provides for the palliative medical treatment of pain and
other symptoms associated with a terminal disease, but does not
provide for efforts to cure the disease.
(5) Provides for bereavement services following death to assist
the family to cope with social and emotional needs associated with
the death of the patient.
(6) Actively utilizes volunteers in the delivery of hospice
services.
(7) To the extent appropriate, based on the medical needs of the
patient, provides services in the patient's home or primary place of
residence.
(c) "Inpatient care arrangements" means arranging for those short
inpatient stays that may become necessary to manage acute symptoms or
due to the temporary absence, or need for respite, of a capable
primary caregiver. The hospice shall arrange for these stays,
ensuring both continuity of care and the appropriateness of services.
(d) "Medical direction" means those services provided by a
licensed physician and surgeon who is charged with the responsibility
of acting as a consultant to the interdisciplinary team, a
consultant to the patient's attending physician and surgeon, as
requested, with regard to pain and symptom management, and liaison
with physicians and surgeons in the community.
(e) "An interdisciplinary team" means the hospice care team that
includes, but is not limited to, the patient and patient's family, a
physician and surgeon, a registered nurse, a social worker, a
volunteer, and a spiritual caregiver. The team shall be coordinated
by a registered nurse and shall be under medical direction. The team
shall meet regularly to develop and maintain an appropriate plan of
care.
(f) "Plan of care" means a written plan developed by the attending
physician and surgeon, the medical director or physician and surgeon
designee, and the interdisciplinary team that addresses the needs of
a patient and family admitted to the hospice program. The hospice
shall retain overall responsibility for the development and
maintenance of the plan of care and quality of services delivered.
(g) "Skilled nursing services" means nursing services provided by
or under the supervision of a registered nurse under a plan of care
developed by the interdisciplinary team and the patient's physician
and surgeon to a patient
and his or her family that pertain to the palliative, supportive
services required by patients with a terminal illness. Skilled
nursing services include, but are not limited to, patient assessment,
evaluation and case management of the medical nursing needs of the
patient, the performance of prescribed medical treatment for pain and
symptom control, the provision of emotional support to both the
patient and his or her family, and the instruction of caregivers in
providing personal care to the patient. Skilled nursing services
shall provide for the continuity of services for the patient and his
or her family. Skilled nursing services shall be available on a
24-hour on-call basis.
(h) "Social service/counseling services" means those counseling
and spiritual care services that assist the patient and his or her
family to minimize stresses and problems that arise from social,
economic, psychological, or spiritual needs by utilizing appropriate
community resources, and maximize positive aspects and opportunities
for growth.
(i) "Terminal disease" or "terminal illness" means a medical
condition resulting in a prognosis of life of one year or less, if
the disease follows its natural course.
(j) "Volunteer services" means those services provided by trained
hospice volunteers who have agreed to provide service under the
direction of a hospice staff member who has been designated by the
hospice to provide direction to hospice volunteers. Hospice
volunteers may be used to provide support and companionship to the
patient and his or her family during the remaining days of the
patient's life and to the surviving family following the patient's
death.
(k) "Multiple location" means a location or site from which a
hospice makes available basic hospice services within the service
area of the parent agency. A multiple location shares
administration, supervision, policies and procedures, and services
with the parent agency in a manner that renders it unnecessary for
the site to independently meet the licensing requirements.
(l) "Home health aide" has the same meaning as set forth in
subdivision (c) of Section 1727.
(m) "Home health aide services" means those services as set forth
in subdivision (d) of Section 1727 provided for the personal care of
the terminally ill patient and the performance of related tasks in
the patient's home in accordance with the plan of care in order to
increase the level of comfort and to maintain personal hygiene and a
safe, healthy environment for the patient.
(n) "Parent agency" means the part of the hospice that is licensed
pursuant to this chapter, and develops and maintains administrative
controls of multiple locations. All services provided by the
multiple location and parent agency are the responsibility of the
parent agency.
SEC. 108. Section 40928 of the Health and Safety Code is amended
and renumbered to read:
40717.8. (a) For purposes of this section, the following terms
have the following meaning:
(1) "Event center" means a community center, activity center,
auditorium, convention center, stadium, coliseum, arena, sports
facility, racetrack, pavilion, amphitheater, theme park, amusement
park, fairgrounds, or other building, collection of buildings, or
facility which is used exclusively or primarily for the holding of
sporting events, athletic contests, contests of skill, exhibitions,
conventions, meetings, spectacles, concerts, or shows, or for
providing public amusement or entertainment.
(2) "Average vehicle ridership" means the total number of
attendees arriving in vehicles parking in areas controlled by the
event center, divided by the total number of those vehicles parking
in areas controlled by the event center.
(b) (1) Notwithstanding Section 40717, or any other provision of
this chapter, and to the extent consistent with federal law, no
district, or regional or local agency to which a district has
delegated the authority to implement transportation control measures
pursuant to Section 40717, and which is acting pursuant to that
delegated authority, shall do either of the following:
(A) Require an event center which achieves an average vehicle
ridership greater than 2.20 to implement any transportation control
requirements that are intended to achieve reductions in vehicle trips
or vehicle miles traveled by event center attendees.
(B) Require an event center which, since 1987, has achieved a 12.5
percent reduction in vehicle trips or vehicle miles traveled, to
implement additional transportation control requirements that are
also intended to achieve reductions in vehicle trips or vehicle miles
traveled by event center attendees.
(2) A district, or regional or local agency, may require event
centers which achieve an average vehicle ridership greater than 2.20,
or which, since 1987, has achieved a 12.5 percent reduction in
vehicle trips or vehicle miles traveled, to implement approved
alternative strategies which will achieve emission reductions that
are equivalent to those that would be achieved by the imposition of
transportation control requirements intended to reduce vehicle trips
or vehicle miles traveled by event center attendees, including, but
not limited to, those strategies specified in subdivision (c).
(c) A district or regional or local agency may impose requirements
on any event center, without permitting that event center to
implement alternative strategies to achieve equivalent emissions
reductions, for any of the following purposes:
(1) Traffic management before and after events.
(2) Parking management and vehicle flow within parking areas
controlled by the event center.
(3) Reducing the amount of vehicle idling before and after events.
(4) Implementing marketing or education programs designed to
educate attendees on mass transit or other alternative transportation
methods for transit to and from the event center.
(5) Achieving a designated average vehicle ridership for vehicles
which carry persons who are traveling to or from their employment at
an event center.
(6) Other emission reduction strategies not relating to reductions
in vehicle trips or vehicle miles traveled by event center
attendees.
SEC. 109. Section 40929 of the Health and Safety Code is amended
and renumbered to read:
40717.9. (a) Notwithstanding Section 40454, 40457, 40717,
40717.1, or 40717.5, or any other provision of law, a district,
congestion management agency, as defined in subdivision (b) of
Section 65088.1 of the Government Code, or any other public agency
shall not require an employer to implement an employee trip reduction
program unless the program is expressly required by federal law and
the elimination of the program will result in the imposition of
federal sanctions, including, but not limited to, the loss of federal
funds for transportation purposes.
(b) Nothing in this section shall preclude a public agency from
regulating indirect sources in any manner that is not specifically
prohibited by this section, where otherwise authorized by law.
SEC. 110. The heading of Article 1.5 (commencing with Section
42320) of Chapter 4 of Part 4 of the Health and Safety Code is
amended and renumbered to read:
Article 1.3. Air Pollution Permit Streamlining Act
SEC. 111. Section 44056 of the Health and Safety Code is amended
to read:
44056. (a) Except as otherwise provided in Sections 44051 and
44051.5, any person who violates this chapter, or any order, rule, or
regulation of the department adopted pursuant to this chapter, is
liable for a civil penalty of not less than one hundred fifty dollars
($150) and not more than two thousand five hundred dollars ($2,500)
for each day in which each violation occurs. Any action to recover
civil penalties shall be brought by the Attorney General in the name
of the state on behalf of the department, or may be brought by any
district attorney, city attorney, or attorney for a district.
(b) The penalties specified in subdivision (a) do not apply to an
owner or operator of a motor vehicle, except an owner or operator who
does any of the following:
(1) Obtains, or who attempts to obtain, a certificate of
compliance or noncompliance, a repair cost waiver, or an economic
hardship extension without complying with Section 44015.
(2) Obtains, or attempts to obtain, a certificate of compliance, a
repair cost waiver, or an economic hardship extension by means of
fraud, including, but not limited to, offering or giving any form of
financial or other inducement to any person for the purpose of
obtaining a certificate of compliance for a vehicle that has not been
tested or has been tested improperly.
(3) Registers a motor vehicle at an address other than the owner's
or operator's residence address for the purpose of avoiding the
requirements of this chapter.
(4) Obtains, or attempts to obtain, a certificate of compliance by
other means when required to report to the test-only facility after
being identified as a tampered vehicle or gross polluter pursuant to
Section 44015 or 44081.
(c) Any person who obtains or attempts to obtain a repair cost
waiver, or economic hardship extension pursuant to this chapter by
falsifying information shall be subject to a civil penalty of not
less than one hundred fifty dollars ($150) and not more than one
thousand dollars ($1,000), and shall be made ineligible for receiving
any repair assistance of any kind pursuant to this chapter.
SEC. 112. Section 44401 of the Health and Safety Code is amended
to read:
44401. As used in this part, the following terms have the
following meaning:
(a) "Commercial space program" means all nongovernmental
activities and equipment at a facility, as defined in subdivision
(b), that involve the manufacture or assembly of space vehicles,
space launch vehicles, or satellites for purposes of commercial space
launch, or that engage in the preparation for launch or the launch
of those vehicles or satellites, that have a Standard Industrial
Classification code other than national security, and that are the
responsibility of, and are controlled by, the owner or operator of
the facility.
(b) "Facility" means every structure, appurtenance, and
improvement that is located on one or more contiguous or adjacent
properties under the control of the same person, or under the common
control of the same persons.
(c) "Space vehicle" or "expendable space launch vehicle" means a
fabricated part, assembly of parts, or completed unit designed to
boost payload spacecraft into the atmosphere and which is consumed or
destroyed in the process of boosting the payload from the launchpad.
(d) "Space launch" means to place or attempt to place a space
vehicle or expendable space launch vehicle and any payload in
suborbital trajectory, in Earth orbit in outer space, or otherwise in
outer space.
SEC. 113. Section 102425 of the Health and Safety Code is amended
to read:
102425. (a) The certificate of live birth for any live birth
occurring on or after January 1, 1980, shall contain those items
necessary to establish the fact of the birth and shall contain only
the following information:
(1) Full name and sex of the child.
(2) Date of birth, including month, day, hour, and year.
(3) Planned place of birth and place of birth.
(4) Full name of the father, birthplace, and date of birth of the
father including month, day, and year. If the parents are not
married to each other, the father's name shall not be listed on the
birth certificate unless the father and the mother sign a voluntary
declaration of paternity at the hospital before the birth certificate
is prepared. The birth certificate may be amended to add the father'
s name at a later date only if paternity for the child has been
established by a judgment of a court of competent jurisdiction or by
the filing of a voluntary declaration of paternity.
(5) Full birth name of the mother, birthplace, and date of birth
of the mother including month, day, and year.
(6) Multiple births and birth order of multiple births.
(7) Signature, and relationship to the child, of a parent or other
informant, and date signed.
(8) Name, title, and mailing address of the attending physician
and surgeon or principal attendant, signature, and certification of
live birth by the attending physician and surgeon or principal
attendant or certifier, date signed, and name and title of the
certifier if other than the attending physician and surgeon or
principal attendant.
(9) Date accepted for registration and signature of local
registrar.
(10) A state birth certificate number and local registration
district and number.
(11) A blank space for entry of the date of death with a caption
reading "Date of Death."
(b) In addition to the items listed in subdivision (a), the
certificate of live birth shall contain the following medical and
social information, provided that the information is kept
confidential pursuant to Sections 102430 and 102447 and is clearly
labeled "Confidential Information for Public Health Use Only:"
(1) Birth weight.
(2) Pregnancy history.
(3) Race and ethnicity of the mother and father.
(4) Residence address of the mother.
(5) A blank space for entry of census tract for the mother's
address.
(6) Month prenatal care began and number of prenatal visits.
(7) Date of last normal menses.
(8) Description of complications of pregnancy and concurrent
illnesses, congenital malformation, and any complication of labor and
delivery, including surgery, provided that this information is
essential medical information and appears in total on the face of the
certificate.
(9) Mother's and father's occupations and kind of business or
industry.
(10) Education level of the mother and father.
(11) Principal source of payment for prenatal care, which shall
include all of the following: Medi-Cal, health maintenance
organization or prepaid health plan, private insurance companies,
medically indigent, self-pay, and other sources which shall include
Medicare, workers' compensation, Title V, other government or
nongovernment programs, no charge, and other categories as determined
by the State Department of Health Services.
This paragraph shall become inoperative on January 1, 1999, or on
the implementation date of the decennial birth certificate revision
due to occur on or about January 1, 1999, whichever occurs first.
(12) Expected principal source of payment for delivery, which
shall include all of the following: Medi-Cal, health maintenance
organization or prepaid health plan, private insurance companies,
medically indigent, self-pay, and other sources which shall include
Medicare, workers' compensation, Title V, other government or
nongovernment programs, no charge, and other categories as determined
by the State Department of Health Services.
This paragraph shall become inoperative on January 1, 1999, or on
the implementation date of the decennial birth certificate revision
due to occur on or about January 1, 1999, whichever occurs first.
(13) An indication of whether or not the child's parent desires
the automatic issuance of a social security number to the child.
(14) On and after January 1, 1995, the social security numbers of
the mother and father, unless subdivision (b) of Section 102150
applies.
(c) Item 8, specified in subdivision (b), shall be completed by
the attending physician and surgeon or the attending physician's and
surgeon's designated representative. The names and addresses of
children born with congenital malformations who require followup
treatment, as determined by the child's physician and surgeon, shall
be furnished by the physician and surgeon to the local health
officer, if permission is granted by either parent of the child.
(d) The parent shall only be asked to sign the form after both the
public portion and the confidential medical and social information
items have been entered upon the certificate of live birth.
(e) The State Registrar shall instruct all local registrars to
collect the information specified in this section with respect to
certificates of live birth. The information shall be transcribed on
the certificate of live birth in use at the time and shall be limited
to the information specified in this section.
Information relating to concurrent illnesses, complications of
pregnancy and delivery, and congenital malformations shall be
completed by the physician and surgeon, or the physician's and
surgeon's designee, who shall insert in the space provided on the
confidential portion of the certificate the appropriate number or
numbers listed on the VS-10A supplemental worksheet. The VS-10A
supplemental form shall be used as a worksheet only and shall not in
any manner be linked with the identity of the child or the mother,
nor submitted with the certificate to the State Registrar. All
information transferred from the worksheet to the certificate shall
be fully explained to the parent or other informant prior to the
signing of the certificate. No questions relating to drug or alcohol
abuse may be asked.
(f) If the implementation date of the decennial birth certificate
revision occurs prior to January 1, 1999, within 30 days of this
implementation date the State Department of Health Services shall
file a letter with the Secretary of the Senate and with the Chief
Clerk of the Assembly, so certifying.
SEC. 114. Section 111940 of the Health and Safety Code is amended
to read:
111940. (a) If any person violates any provision of Chapter 4
(commencing with Section 111950), Chapter 5 (commencing with Section
112150), Chapter 6 (commencing with Section 112350), Chapter 7
(commencing with Section 112500), Chapter 8 (commencing with Section
112650), Chapter 10 (commencing with Section 113025), or Article 3
(commencing with Section 113250) of Chapter 11, or Chapter 4
(commencing with Section 108100) of Part 3, or any regulation adopted
pursuant to these provisions, the department may assess a civil
penalty against that person as provided by this section.
(b) The penalty may be in an amount not to exceed one thousand
dollars ($1,000) per day. Each day that a violation continues shall
be considered a separate violation.
(c) If, after examination of a possible violation and the facts
surrounding that possible violation, the department concludes that a
violation has occurred, the department may issue a complaint to the
person charged with the violation. The complaint shall allege the
acts or failures to act that constitute the basis for the violation
and the amount of the penalty. The complaint shall be served by
personal service or by certified mail and shall inform the person so
served of the right to a hearing.
(d) Any person served with a complaint pursuant to subdivision (c)
of this section may, within 20 days after service of the complaint,
request a hearing by filing with the department a notice of defense.
A notice of defense is deemed to have been filed within the 20-day
period if it is postmarked within the 20-day period. If a hearing is
requested by the person, it shall be conducted within 90 days after
the receipt by the department of the notice of defense. If no notice
of defense is filed within 20 days after service of the complaint,
the department shall issue an order setting the penalty as proposed
in the complaint unless the department and the person have entered
into a settlement agreement, in that case the department shall issue
an order setting the penalty in the amount specified in the
settlement agreement. When the person has not filed a notice of
defense or where the department and the person have entered into a
settlement agreement, the order shall not be subject to review by any
court or agency.
(e) Any hearing required under this section shall be conducted
pursuant to the procedures specified in Section 100171, except to the
extent they are inconsistent with the specific requirements of this
section.
(f) Orders setting civil penalties under this section shall become
effective and final upon issuance thereof, and payment shall be made
within 30 days of issuance. A copy of the order shall be served by
personal service or by certified mail upon the person served with the
complaint.
(g) Within 30 days after service of a copy of a decision issued by
the director after a hearing, any person so served may file with the
superior court a petition for writ of mandate for review of the
decision. Any person who fails to file the petition within this
30-day period may not challenge the reasonableness or validity of the
decision or order of the director in any judicial proceeding brought
to enforce the decision or order or for other remedies. Section
1094.5 of the Code of Civil Procedure shall govern any proceedings
conducted pursuant to this subdivision. In all proceedings pursuant
to this subdivision, the court shall uphold the decision of the
director if the decision is based upon substantial evidence in the
whole record. The filing of a petition for writ of mandate shall not
stay any corrective action required pursuant to the Miscellaneous
Food, Food Facility, and Hazardous Substances Act (Section 27) or the
accrual of any penalties assessed pursuant to this section. This
subdivision does not prohibit the court from granting any appropriate
relief within its jurisdiction.
(h) The remedies under this section are in addition to, and do not
supersede, or limit, any and all other remedies, civil or criminal.
SEC. 115. Section 1760.5 of the Insurance Code is amended to read:
1760.5. (a) The provisions of this chapter limiting the insurance
that may be placed with nonadmitted insurers and requiring any
report thereof shall not apply to any of the following:
(1) Reinsurance of the liability of an admitted insurer.
(2) Insurance against perils of navigation, transit or
transportation upon hulls, freights or disbursements, or other
shipowner interests; upon goods, wares, merchandise and all other
personal property and interests therein, in course of exportation
from or importation into any country, or transportation coastwise,
including transportation by land or water from point of origin to
final destination and including war risks; and marine builder's
risks, drydocks and marine railways, including insurance of ship
repairer's liability, and protection and indemnity insurance, but
excluding insurance covering bridges or tunnels.
(3) Aircraft or spacecraft insurance.
(4) Insurance on property or operations of railroads engaged in
interstate commerce.
(b) The insurance specified in paragraphs (2), (3), and (4) of
subdivision (a) may be placed with a nonadmitted insurer only by and
through a special lines' surplus line broker. The license of a
special lines' surplus line broker shall be applied for and procured
and shall be subject to the same fees for filing on issuance in the
same manner as the license of a surplus line broker, except that in
lieu of the bond required by Section 1765, there shall be delivered
to the commissioner a bond in the form, amounts, and conditions
specified in Sections 1663 and 1665 for an insurance broker and only
one fee shall be collected from one person for both licenses. The
licensee in respect to the business shall be subject to all the
provisions of this chapter except Sections 1761, 1763, 1765.1, and
1775.5.
(c) The commissioner may address to any licensed special lines'
surplus line broker a written request for full and complete
information respecting the financial stability, reputation, and
integrity of any nonadmitted insurer with whom the licensee has dealt
or proposes to deal in the transaction of insurance specified in
paragraphs (2), (3), or (4) of subdivision (a). The licensee so
addressed shall promptly furnish in written or printed form so much
of the information requested as he or she can produce together with a
signed statement identifying the same and giving reasons for
omissions, if any. After due examination of the information and
accompanying statement, the commissioner may, if he or she believes
it to be in the public interest, order in writing the licensee to
place no further insurance business on property located or operations
conducted within or on the lives of persons who are residents of
this state with that nonadmitted insurer on behalf of any person.
Any placement with that nonadmitted insurer made by a licensee after
receipt of the order is a violation of this chapter. The
commissioner may issue an order if he or she finds that a nonadmitted
insurer with whom the licensee has dealt or proposes to deal in the
transaction of insurance is in an unsound financial condition, is
disreputable, or is lacking in integrity. The order shall also
include notice of a hearing to be held at a time and place fixed
therein, which shall be not less than 20 nor more than 30 days from
service of the order upon the licensee.
(d) The commissioner may, with respect to business written or
placed under the provisions of this section, require information and
reports thereof that the commissioner considers necessary,
convenient, or advisable.
(e) Each placing of insurance in violation of this chapter is a
misdemeanor.
(f) The commissioner may revoke, suspend, or deny any license
granted pursuant to this code in accordance with the procedure
provided in Article 13 (commencing with Section 1737) of Chapter 5,
or any certificate of authority granted pursuant to this code in
accordance with the procedure provided in Section 704 whenever the
commissioner finds that the licensee or holder of the certificate has
committed a violation of this section.
(g) The premium for insurance placed by or through a special lines'
surplus line broker pursuant to this section shall not be subject to
the tax imposed upon the broker based upon gross premiums paid for
insurance placed under authority conferred by the license.
SEC. 116. Section 10273.4 of the Insurance Code is amended to
read:
10273.4. All disability insurers writing, issuing, or
administering group health benefit plans shall make all of these
health benefit plans renewable with respect to the policyholder,
contractholder, or employer except as follows:
(a) For nonpayment of the required premiums by the policyholder,
contractholder, or employer.
(b) For fraud or other intentional misrepresentation by the
policyholder, contractholder, or employer.
(c) For noncompliance with a material health benefit plan contract
provision.
(d) If the insurer ceases to provide or arrange for the provision
of health care services for new group health benefit plans in this
state, provided that the following conditions are satisfied:
(1) Notice of the decision to cease writing, issuing, or
administering new or existing group health benefit plans in that
state is provided to the commissioner and to either the policyholder,
contractholder, or employer at least 180 days prior to
discontinuation of that coverage.
(2) Group health benefit plans shall not be canceled for 180 days
after the date of the notice required under paragraph (1) and for
that business of a plan that remains in force, any disability insurer
that ceases to write, issue, or administer new group health benefit
plans shall continue to be governed by this section with respect to
business conducted under this section.
(3) Except as authorized under subdivision (h) of Section 10705,
or unless the commissioner had made a determination pursuant to
subdivision (q) of Section 10712, a disability insurer that ceases to
write, issue, or administer new group health benefit plans in this
state after the effective date of this section shall be prohibited
from writing, issuing, or administering new group health benefit
plans to employers in this state for a period of five years from the
date of notice to the commissioner.
(e) If a disability insurer withdraws a group health benefit plan
from the market, provided that the plan notifies all affected
contractholders, policyholders, or employers and the commissioner at
least 90 days prior to the discontinuation of the health benefit
plans, and that the insurer makes available to the contractholder,
policyholder, or employer all health benefit plans that it makes
available to new employer business without regard to the claims
experience of health-related factors of insureds or individuals who
may become eligible for the coverage.
(f) For the purposes of this section, "health benefit plan" shall
have the same meaning as in subdivision (a) of Section 10198.6 and
Section 10198.61.
(g) For the purposes of this section, "eligible employee" shall
have the same meaning as in Section 10700, except that it applies to
all health benefit plans issued to employer groups of two or more
employees.
SEC. 117. Section 10700 of the Insurance Code is amended to read:
10700. As used in this chapter:
(a) "Agent or broker" means a person or entity licensed under
Chapter 5 (commencing with Section 1621) of Part 2 of Division 1.
(b) "Benefit plan design" means a specific health coverage product
issued by a carrier to small employers, to trustees of associations
that include small employers, or to individuals if the coverage is
offered through employment or sponsored by an employer. It includes
services covered and the levels of copayment and deductibles, and it
may include the professional providers who are to provide those
services and the sites where those services are to be provided. A
benefit plan design may also be an integrated system for the
financing and delivery of quality health care services which has
significant incentives for the covered individuals to use the system.
(c) "Board" means the Major Risk Medical Insurance Board.
(d) "Carrier" means any disability insurance company or any other
entity that writes, issues, or administers health benefit plans that
cover the employees of small employers, regardless of the situs of
the contract or master policyholder. For the purposes of Article 3
(commencing with Section 10719) and Article 4 (commencing with
Section 10730), "carrier" also includes health care service plans.
(e) "Dependent" means the spouse or child of an eligible employee,
subject to applicable terms of the health benefit plan covering the
employee, and includes dependents of guaranteed association members
if the association elects to include dependents under its health
coverage at the same time it determines its membership composition
pursuant to subdivision (z).
(f) "Eligible employee" means either of the following:
(1) Any permanent employee who is actively engaged on a full-time
basis in the conduct of the business of the small employer with a
normal workweek of at least 30 hours, in the small employer's regular
place of business, who has met any statutorily authorized applicable
waiting period requirements. The term includes sole proprietors or
partners of a partnership, if they are actively engaged on a
full-time basis in the small employer's business, and they are
included as employees under a health benefit plan of a small
employer, but does not include employees who work on a part-time,
temporary, or substitute basis. It includes any eligible employee as
defined in this paragraph who obtains coverage through a guaranteed
association. Employees of employers purchasing through a guaranteed
association shall be deemed to be eligible employees if they would
otherwise meet the definition except for the number of persons
employed by the employer.
(2) Any member of a guaranteed association as defined in
subdivision (z).
(g) "Enrollee" means an eligible employee or dependent who
receives health coverage through the program from a participating
carrier.
(h) "Financially impaired" means, for the purposes of this
chapter, a carrier that, on or after the effective date of this
chapter, is not insolvent and is either:
(1) Deemed by the commissioner to be potentially unable to fulfill
its contractual obligations.
(2) Placed under an order of rehabilitation or conservation by a
court of competent jurisdiction.
(i) "Fund" means the California Small Group Reinsurance Fund.
(j) "Health benefit plan" means a policy or contract written or
administered by a carrier that arranges or provides health care
benefits for the covered eligible employees of a small employer and
their dependents. The term does not include accident only, credit,
disability income, coverage of Medicare services pursuant to
contracts with the United States government, Medicare supplement,
long-term care insurance, dental, vision, coverage issued as a
supplement to liability insurance, automobile medical payment
insurance, or insurance under which benefits are payable with or
without regard to fault and that is statutorily required to be
contained in any liability insurance policy or equivalent
self-insurance.
(k) "In force business" means an existing health benefit plan
issued by the carrier to a small employer.
(l) "Late enrollee" means an eligible employee or dependent who
has declined health coverage under a health benefit plan offered by a
small employer at the time of the initial enrollment period provided
under the terms of the health benefit plan, and who subsequently
requests enrollment in a health benefit plan of that small employer,
provided that the initial enrollment period shall be a period of at
least 30 days. It also means any member of an association that is a
guaranteed association as well as any other person eligible to
purchase through the guaranteed association when that person has
failed to purchase coverage during the initial enrollment period
provided under the terms of the guaranteed association's health
benefit plan and who subsequently requests enrollment in the plan,
provided that the initial enrollment period shall be a period of at
least 30 days. However, an eligible employee, another person
eligible for coverage through a guaranteed association pursuant to
subdivision (z), or dependent shall not be considered a late enrollee
if: (1) the individual meets all of the following: (A) was covered
under another employer health benefit plan or no share-of-cost
Medi-Cal coverage at the time the individual was eligible to enroll;
(B) certified at the time of the initial enrollment that coverage
under another employer health benefit plan or no share-of-cost
Medi-Cal coverage was the reason for declining enrollment provided
that, if the individual was covered under another employer health
plan, the individual was given the opportunity to make the
certification required by this subdivision and was notified that
failure to do so could result in later treatment as a late enrollee;
(C) has lost or will lose coverage under another employer health
benefit plan as a result of termination of employment of the
individual or of a person through whom the individual was covered as
a dependent, change in employment status of the individual, or of a
person through whom the individual was covered as a dependent, the
termination of the other plan's coverage, cessation of an employer's
contribution toward an employee or dependent's coverage, death of the
person through whom the individual was covered as a dependent,
divorce, or loss of no share-of-cost Medi-Cal coverage; and (D)
requests enrollment within 30 days after termination of coverage or
employer contribution toward coverage provided under another employer
health benefit plan; (2) the individual is employed by an employer
who offers multiple health benefit plans and the individual elects a
different plan during an open enrollment period; (3) a court has
ordered that coverage be provided for a spouse or minor child under a
covered employee's health benefit plan; (4) (A) in the case of an
eligible employee as defined in paragraph (1) of subdivision (f), the
carrier cannot produce a written statement from the employer stating
that the individual or the person through whom an individual was
eligible to be covered as a dependent, prior to declining coverage,
was provided with, and signed acknowledgment of, an explicit written
notice in boldface type specifying that failure to elect coverage
during the initial enrollment period permits the carrier to impose,
at the time of the individual's later decision to elect coverage, an
exclusion from coverage for a period of 12 months as well as a
six-month preexisting condition exclusion unless the individual meets
the criteria specified in paragraph (1), (2), or (3); (B) in the
case of an eligible employee who is a guaranteed association member,
the plan cannot produce a written statement from the guaranteed
association stating that the association sent a written notice in
boldface type to all association members at their last known address
prior to the initial enrollment period informing members that failure
to elect coverage during the initial enrollment period permits the
plan to impose, at the time of the member's later decision to elect
coverage, an exclusion from coverage for a period of 12 months as
well as a six-month preexisting condition exclusion unless the member
can demonstrate that he or she meets the requirements of
subparagraphs (A), (C), and (D) of paragraph (1) or paragraph (2) or
(3); or (C) in the case of an employer or person who is not a member
of an association, was eligible to purchase coverage through a
guaranteed association, and did not do so, and would not be eligible
to purchase guaranteed coverage unless purchased through a guaranteed
association, the employer or person can demonstrate that he or she
meets the requirements of subparagraphs (A), (C), and (D) of
paragraph (1), or paragraph (2) or (3), or that he or she recently
had a change in status that would make him or her eligible and that
application for coverage was made within 30 days of the change; (5)
the individual is an employee or dependent who meets the criteria
described in paragraph (1) and was under a COBRA continuation
provision and the coverage under that provision has been exhausted.
For purposes of this section, the definition of "COBRA" set forth in
subdivision (e) of Section 1373.621 of the Health and Safety Code
shall apply; or (6) the individual is a dependent of an enrolled
eligible employee who has lost or will lose his or her no
share-of-cost Medi-Cal coverage and requests enrollment within 30
days after notification of this loss of coverage.
(m) "New business" means a health benefit plan issued to a small
employer that is not the carrier's in force business.
(n) "Participating carrier" means a carrier that has entered into
a contract with the program to provide health benefits coverage under
this part.
(o) "Plan of operation" means the plan of operation of the fund,
including articles, bylaws and operating rules adopted by the fund
pursuant to Article 3 (commencing with Section 10719).
(p) "Program" means the Health Insurance Plan of California.
(q) "Preexisting condition provision" means a policy provision
that excludes coverage for charges or expenses incurred during a
specified period following the insured's effective date of coverage,
as to a condition for which medical advice, diagnosis, care, or
treatment was recommended or received during a specified period
immediately preceding the effective date of coverage.
(r) "Creditable coverage" means:
(1) Any individual or group policy, contract, or program, that is
written or administered by a disability insurer, health care service
plan, fraternal benefits society, self-insured employer plan, or any
other entity, in this state or elsewhere, and that arranges or
provides medical, hospital, and surgical coverage not designed to
supplement other private or governmental plans. The term includes
continuation or conversion coverage but does not include accident
only, credit, coverage for onsite medical clinics, disability income,
Medicare supplement, long-term care, dental, vision, coverage issued
as a supplement to liability insurance, insurance arising out of a
workers' compensation or similar law, automobile medical payment
insurance, or insurance under which benefits are payable with or
without regard to fault and that is statutorily required to be
contained in any liability insurance policy or equivalent
self-insurance.
(2) The federal Medicare program pursuant to Title XVIII of the
Social Security Act.
(3) The medicaid program pursuant to Title XIX of the Social
Security Act.
(4) Any other publicly sponsored program, provided in this state
or elsewhere, of medical, hospital, and surgical care.
(5) 10 U.S.C.A. Chapter 55 (commencing with Section 1071)
(Civilian Health and Medical Program of the Uniformed Services
(CHAMPUS)).
(6) A medical care program of the Indian Health Service or of a
tribal organization.
(7) A state health benefits risk pool.
(8) A health plan offered under 5 U.S.C.A. Chapter 89 (commencing
with Section 8901) (Federal Employees Health Benefits Program
(FEHBP)).
(9) A public health plan as defined in federal regulations
authorized by Section 2701(c)(1)(I) of the Public Health Service Act,
as amended by Public Law 104-191, the Health Insurance Portability
and Accountability Act of 1996.
(10) A health benefit plan under Section 5(e) of the Peace Corps
Act (22 U.S.C.A. Sec. 2504(e)).
(11) Any other creditable coverage as defined by subdivision (c)
of Section 2701 of Title XXVII of the federal Public Health Services
Act (42 U.S.C. Sec. 300gg(c)).
(s) "Rating period" means the period for which premium rates
established by a carrier are in effect and shall be no less than six
months.
(t) "Risk adjusted employee risk rate" means the rate determined
for an eligible employee of a small employer in a particular risk
category after applying the risk adjustment factor.
(u) "Risk adjustment factor" means the percent adjustment to be
applied equally to each standard employee risk rate for a particular
small employer, based upon any expected deviations from standard
claims. This factor may not be more than 120 percent or less than 80
percent until July 1, 1996. Effective July 1, 1996, this factor may
not be more than 110 percent or less than 90 percent.
(v) "Risk category" means the following characteristics of an
eligible employee: age, geographic region, and family size of the
employee, plus the benefit plan design selected by the small
employer.
(1) No more than the following age categories may be used in
determining premium rates:
Under 30
30-39
40-49
50-54
55-59
60-64
65 and over
However, for the 65 and over age category, separate premium rates
may be specified depending upon whether coverage under the health
benefit plan will be primary or secondary to benefits provided by the
federal Medicare program pursuant to Title XVIII of the federal
Social Security Act.
(2) Small employer carriers shall base rates to small employers
using no more than the following family size categories:
(A) Single.
(B) Married couple.
(C) One adult and child or children.
(D) Married couple and child or children.
(3) (A) In determining rates for small employers, a carrier that
operates statewide shall use no more than nine geographic regions in
the state, have no region smaller than an area in which the first
three digits of all its ZIP Codes are in common within a county and
shall divide no county into more than two regions. Carriers shall be
deemed to be operating statewide if their coverage area includes 90
percent or more of the state's population. Geographic regions
established pursuant to this section shall, as a group, cover the
entire state, and the area encompassed in a geographic region shall
be separate and distinct from areas encompassed in other geographic
regions. Geographic regions may be noncontiguous.
(B) In determining rates for small employers, a carrier that does
not operate statewide shall use no more than the number of geographic
regions in the state than is determined by the following formula:
the population, as determined in the last federal census, of all
counties which are included in their entirety in a carrier's service
area divided by the total population of the state, as determined in
the last federal census, multiplied by nine. The resulting number
shall be rounded to the nearest whole integer. No region may be
smaller than an area in which the first three digits of all its ZIP
Codes are in common within a county and no county may be divided into
more than two regions. The area encompassed in a geographic region
shall be separate and distinct from areas encompassed in other
geographic regions. Geographic regions may be noncontiguous. No
carrier shall have less than one geographic area.
(w) "Small employer" means either of the following:
(1) Any person, proprietary or nonprofit firm, corporation,
partnership, public agency, or association that is actively engaged
in business or service that, on at least 50 percent of its working
days during the preceding calendar quarter, or preceding calendar
year, employed at least two, but not more than 50, eligible
employees, the majority of whom were employed within this state, that
was not formed primarily for purposes of buying health insurance and
in which a bona fide employer-employee relationship exists. In
determining whether to apply the calendar quarter or calendar year
test, the insurer shall use the test that ensures eligibility if only
one test would establish eligibility. However, for purposes of
subdivisions (b) and (h) of Section 10705, the definition shall
include employers with at least three eligible employees until July
1, 1997, and two eligible employees thereafter. In determining the
number of eligible employees, companies that are affiliated companies
and that are eligible to file a combined income tax return for
purposes of state taxation shall be considered one employer.
Subsequent to the issuance of a health benefit plan to a small
employer pursuant to this chapter, and for the purpose of determining
eligibility, the size of a small employer shall be determined
annually. Except as otherwise specifically provided, provisions of
this chapter that apply to a small employer shall continue to apply
until the health benefit plan anniversary following the date the
employer no longer meets the requirements of this definition. It
includes any small employer as defined in this paragraph who
purchases coverage through a guaranteed association, and any employer
purchasing coverage for employees through a guaranteed association.
(2) Any guaranteed association, as defined in subdivision (y),
that purchases health coverage for members of the association.
(x) "Standard employee risk rate" means the rate applicable to an
eligible employee in a particular risk category in a small employer
group.
(y) "Guaranteed association" means a nonprofit organization
comprised of a group of individuals or employers who associate based
solely on participation in a specified profession or industry,
accepting for membership any individual or employer meeting its
membership criteria which (1) includes one or more small employers as
defined in paragraph (1) of subdivision (w), (2) does not condition
membership directly or indirectly on the health or claims history of
any person, (3) uses membership dues solely for and in consideration
of the membership and membership benefits, except that the amount of
the dues shall not depend on whether the member applies for or
purchases insurance offered by the association, (4) is organized and
maintained in good faith for purposes unrelated to insurance, (5) has
been in active existence on January 1, 1992, and for at least five
years prior to that date, (6) has been offering health insurance to
its members for at least five years prior to January 1, 1992, (7) has
a constitution and bylaws, or other analogous governing documents
that provide for election of the governing board of the association
by its members, (8) offers any benefit plan design that is purchased
to all individual members and employer members in this state, (9)
includes any member choosing to enroll in the benefit plan design
offered to the association provided that the member has agreed to
make the required premium payments, and (10) covers at least 1,000
persons with the carrier with which it contracts. The requirement of
1,000 persons may be met if component chapters of a statewide
association contracting separately with the same carrier cover at
least 1,000 persons in the aggregate.
This subdivision applies regardless of whether a master policy by
an admitted insurer is delivered directly to the association or a
trust formed for or sponsored by an association to administer
benefits for association members.
For purposes of this subdivision, an association formed by a
merger of two or more associations after January 1, 1992, and
otherwise meeting the criteria of this subdivision shall be deemed to
have been in active existence on January 1, 1992, if its predecessor
organizations had been in active existence on January 1, 1992, and
for at least five years prior to that date and otherwise met the
criteria of this subdivision.
(z) "Members of a guaranteed association" means any individual or
employer meeting the association's membership criteria if that person
is a member of the association and chooses to purchase health
coverage through the association. At the association's discretion,
it may also include employees of association members, association
staff, retired members, retired employees of members, and surviving
spouses and dependents of deceased members. However, if an
association chooses to include those persons as members of the
guaranteed association, the association must so elect in advance of
purchasing coverage from a plan. Health plans may require an
association to adhere to the membership composition it selects for up
to 12 months.
(aa) "Affiliation period" means a period that, under the terms of
the health benefit plan, must expire before health care services
under the plan become effective.
SEC. 118. Section 10841 of the Insurance Code is amended to read:
10841. (a) A purchasing alliance shall comply with all
requirements pertaining to the underwriting, rating and renewal
practices for small employers, pursuant to subdivisions (a) and (b)
of Section 1357.12 of the Health and Safety Code and subdivisions (a)
and (b) of Section 10714, and subdivision (f) of Section 1357.03 of
the Health and Safety Code.
(b) A purchasing alliance shall comply with all requirements
pertaining to the marketing practices for small employers who
participate in the purchasing alliance, pursuant to subdivision (d)
of Section 1357.03 of the Health and Safety Code and subdivisions (f)
and (j) of Section 10705.
(c) A purchasing alliance shall comply with all requirements
pertaining to the participation requirements for small employers who
participate in the purchasing alliance, pursuant to subdivision (b)
of Section 1357.03 of the Health and Safety Code and Section 10706.
A carrier participating in a purchasing alliance shall be deemed to
be in compliance with this requirement.
SEC. 119. Section 14029 of the Insurance Code is amended to read:
14029. (a) The business of each licensee shall be operated under
the active direction, control, charge, or management, in this state,
of the licensee, if the licensee is qualified, or the person who has
qualified to act as the licensee's manager, if the licensee is not
qualified.
(b) No person shall act as a manager of a licensee until he or she
has complied with each of the following:
(1) Demonstrated his or her qualifications by a written or oral
examination, or a combination of both, if required by the
commissioner.
(2) Made a satisfactory showing to the commissioner that he or she
has the qualifications prescribed by Section 14025 and that none of
the facts stated in Section 14028 exist as to him or her.
(c) If the manager, who has qualified as provided in this section,
ceases for any reason whatsoever to be connected with the licensee
to whom the license is issued, the licensee shall notify the
commissioner in writing 30 days from the cessation. If notice is
given, the license shall remain in force for a reasonable length of
time to be determined by the rules of the commissioner pending the
qualifications, as provided in this chapter, of another manager. If
the licensee fails to notify the commissioner within the 30-day
period, his or her license shall be subject to suspension or
revocation and may be reinstated only upon the filing of an
application for reinstatement, payment of the reinstatement fee, if
any is due, and the qualification of a manager as provided herein.
(d) Every manager shall renew his or her authority by satisfying
the requirements of Article 8 (commencing with Section 14090).
SEC. 120. Section 1295.5 of the Labor Code is amended to read:
1295.5. (a) Notwithstanding Section 1391 of this code or Section
49116 of the Education Code, minors 14 years of age and older may be
employed during the hours permitted by subdivision (b) to perform
sports-attending services in
professional baseball as enumerated in subsection (b) of Section
570.35 of Title 29 of the Code of Federal Regulations. No employer
may employ a minor 14 or 15 years of age to perform sports-attending
services in professional baseball without the prior written approval
of either the school district of the school in which the minor is
enrolled or the county board of education of the county in which that
school district is located.
(b) Any minor 14 or 15 years of age who performs sports-attending
services in professional baseball pursuant to subdivision (a) may be
employed outside of school hours until 12:30 a.m. during any evening
preceding a nonschoolday and until 10 p.m. during any evening
preceding a schoolday. No employer may employ a minor 14 or 15 years
of age to perform sports-attending services in professional baseball
pursuant to subdivision (a) for more than five hours in any
schoolday, for more than 18 hours in any week while school is in
session, for more than eight hours in any nonschoolday, or for more
than 40 hours in any week that school is not in session. An employer
may employ a minor 16 or 17 years of age outside of school hours to
perform sports-attending services in professional baseball pursuant
to subdivision (a) for up to five hours in any schoolday.
(c) The school authority issuing the permit to the minor to
perform sports-attending services in professional baseball shall both
(1) provide the local office of the Division of Labor Standards
Enforcement with a copy of the permit within five business days after
the date the permit is issued and (2) monitor the academic
achievement of the minor to ensure that the educational progress of
the minor is being maintained or improves during the period of
employment.
SEC. 121. Section 1776 of the Labor Code, as amended by Section 3
of Chapter 757 of the Statutes of 1997, is amended to read:
1776. (a) Each contractor and subcontractor shall keep an
accurate payroll record, showing the name, address, social security
number, work classification, and straight time and overtime hours
worked each day and week, and the actual per diem wages paid to each
journeyman, apprentice, worker, or other employee employed by him or
her in connection with the public work.
(b) The payroll records enumerated under subdivision (a) shall be
certified and shall be available for inspection at all reasonable
hours at the principal office of the contractor on the following
basis:
(1) A certified copy of an employee's payroll record shall be made
available for inspection or furnished to the employee or his or her
authorized representative on request.
(2) A certified copy of all payroll records enumerated in
subdivision (a) shall be made available for inspection or furnished
upon request to a representative of the body awarding the contract,
the Division of Labor Standards Enforcement, and the Division of
Apprenticeship Standards of the Department of Industrial Relations.
(3) A certified copy of all payroll records enumerated in
subdivision (a) shall be made available upon request by the public
for inspection or for copies thereof. However, a request by the
public shall be made through either the body awarding the contract,
the Division of Apprenticeship Standards, or the Division of Labor
Standards Enforcement. If the requested payroll records have not
been provided pursuant to paragraph (2), the requesting party shall,
prior to being provided the records, reimburse the costs of
preparation by the contractor, subcontractors, and the entity through
which the request was made. The public shall not be given access to
the records at the principal office of the contractor.
(c) The certified payroll records shall be on forms provided by
the Division of Labor Standards Enforcement or shall contain the same
information as the forms provided by the division.
(d) Each contractor shall file a certified copy of the records
enumerated in subdivision (a) with the entity that requested the
records within 10 days after receipt of a written request.
(e) Any copy of records made available for inspection as copies
and furnished upon request to the public or any public agency by the
awarding body, the Division of Apprenticeship Standards, or the
Division of Labor Standards Enforcement, shall be marked or
obliterated in a manner so as to prevent disclosure of an individual'
s name, address, and social security number. The name and address of
the contractor awarded the contract or performing the contract shall
not be marked or obliterated.
(f) The contractor shall inform the body awarding the contract of
the location of the records enumerated under subdivision (a),
including the street address, city and county, and shall, within five
working days, provide a notice of a change of location and address.
(g) The contractor shall have 10 days in which to comply
subsequent to receipt of written notice specifying in what respects
the contractor must comply with this section. In the event that the
contractor fails to comply within the 10-day period, he or she shall,
as a penalty to the state or political subdivision on whose behalf
the contract is made or awarded, forfeit twenty-five dollars ($25)
for each calendar day, or portion thereof, for each worker, until
strict compliance is effectuated. Upon the request of the Division
of Apprenticeship Standards or the Division of Labor Standards
Enforcement, these penalties shall be withheld from progress payments
then due.
(h) The body awarding the contract shall cause to be inserted in
the contract stipulations to effectuate this section. These
stipulations shall fix the responsibility for compliance with this
section on the prime contractor.
(i) The director shall adopt rules consistent with the California
Public Records Act, (Chapter 3.5 (commencing with Section 6250),
Division 7, Title 1, Government Code) and the Information Practices
Act of 1977, (Title 1.8 (commencing with Section 1798), Part 4,
Division 3, Civil Code) governing the release of these records,
including the establishment of reasonable fees to be charged for
reproducing copies of records required by this section.
(j) This section shall become operative January 1, 2003.
SEC. 122. Section 1813 of the Labor Code, as amended by Section 5
of Chapter 757 of the Statutes of 1997, is amended to read:
1813. The contractor shall, as a penalty to the state or
political subdivision on whose behalf the contract is made or
awarded, forfeit twenty-five dollars ($25) for each workman employed
in the execution of the contract by the contractor or by any
subcontractor for each calendar day during which the workman is
required or permitted to work more than 8 hours in any one calendar
day and 40 hours in any one calendar week in violation of the
provisions of this article. In awarding any contract for public
work, the awarding body shall cause to be inserted therein a
stipulation to this effect. The awarding body shall take cognizance
of all violations of this article committed in the course of the
execution of the contract, and shall report them to the officer of
the state or political subdivision who is authorized to pay the
contractor money due him or her under the contract.
This section shall become operative January 1, 2003.
SEC. 123. Section 3710.3 of the Labor Code is amended to read:
3710.3. Whenever a stop order has been issued pursuant to Section
3710.1 to a motor carrier of property subject to the jurisdiction
and control of the Department of Motor Vehicles or to a household
goods carrier, passenger stage corporation, or charter-party carrier
of passengers subject to the jurisdiction and control of the Public
Utilities Commission, the director shall transmit the stop order to
the Public Utilities Commission or the Department of Motor Vehicles,
whichever has jurisdiction over the affected carrier, within 30 days.
SEC. 124. Section 4064 of the Labor Code is amended to read:
4064. (a) The employer shall be liable for the cost of each
reasonable and necessary comprehensive medical-legal evaluation
obtained by the employee pursuant to Sections 4060, 4061, and 4062.
Each comprehensive medical-legal evaluation shall address all
contested medical issues arising from all injuries reported on one or
more claim forms. An unrepresented employee who has already
obtained a medical evaluation under Section 4060, 4061, or 4062
shall not obtain any additional comprehensive medical evaluations at
the employer's expense for the same disputed medical issue.
(b) Subject to Section 4906, if an employer files an application
for adjudication and the employee is unrepresented at the time the
application is filed, the employer shall be liable for any attorney's
fees incurred by the employee in connection with the application for
adjudication.
(c) The employer shall not be liable for the cost of any
comprehensive medical evaluations obtained by the employee other than
those authorized pursuant to Sections 4060, 4061, and 4062.
However, no party is prohibited from obtaining any medical evaluation
or consultation at the party's own expense. In no event shall an
employer or employee be liable for an evaluation obtained in
violation of subdivision (b) of Section 4060. All comprehensive
medical evaluations obtained by any party shall be admissible in any
proceeding before the appeals board except as provided in
subdivisions (d) and (m) of Section 4061 and subdivisions (b) and (e)
of Section 4062.
SEC. 125. Section 4600.3 of the Labor Code is amended to read:
4600.3. (a) (1) Notwithstanding Section 4600, if a self-insured
employer, group of self-insured employers, or the insurer of an
employer contracts with at least two health care organizations
certified pursuant to Section 4600.5 for health care services
required by this article to be provided to injured employees, the
employees subject to the contract shall receive medical services in
the manner prescribed in the contract, provided that the employee may
choose to be treated by a personal physician or personal
chiropractor he or she has designated prior to the injury, in which
case the employee shall not be treated by the health care
organization. Every employee shall be given an affirmative choice at
the time of employment and at least annually thereafter to designate
or change the designation of a health care organization or a
personal physician or personal chiropractor. The choice shall be
memorialized in writing and maintained in the employee's personnel
records. The employee who has designated a personal physician or
personal chiropractor may change physicians at any time prior to the
injury. Any employee who fails to choose between health care
organizations or to designate a personal physician or personal
chiropractor shall be treated by the health care organization
selected by the employer.
(2) Each contract described in paragraph (1) shall comply with the
certification standards provided in Section 4600.5, and shall
provide all medical, surgical, chiropractic, and hospital treatment,
including nursing, medicines, medical and surgical supplies,
crutches, and apparatus, including artificial members, that is
reasonably required to cure or relieve the effects of the injury, as
required by this division, without any payment by the employee of
deductibles, copayments, or any share of the premium. However, an
employee may receive immediate emergency medical treatment that is
compensable from a medical service or health care provider who is not
a member of the health care organization.
(3) The employee shall be allowed to choose from at least two
health care organizations, of which at least one must be compensated
on a fee-for-service basis. If one or more of the health care
organizations offered by the employer is the workers' compensation
insurer that covers the employee or is an entity that controls or is
controlled by that insurer, as defined by Section 1215 of the
Insurance Code, the employee shall be allowed to choose from at least
one additional health care organization, that is not the workers'
compensation insurer that covers the employee, or entities that
control or are controlled by that insurer, of which at least one must
be compensated on a fee-for-service basis.
(4) Insurers of employers, a group of self-insured employers, or
self-insured employers who contract with a health care organization
for medical services shall give notice to employees of eligible
medical service providers and any other information regarding the
contract and manner of receiving medical services as the
administrative director may prescribe. Employees shall be duly
notified that if they choose to receive care from the health care
organization they must receive treatment for all occupational
injuries and illnesses as prescribed by this section.
(b) Notwithstanding subdivision (a), no employer that is required
to bargain with an exclusive or certified bargaining agent that
represents employees of the employer in accordance with state or
federal employer-employee relations law shall contract with a health
care organization for purposes of Section 4600.5 with regard to
employees whom the bargaining agent is recognized or certified to
represent for collective bargaining purposes pursuant to state or
federal employer-employee relations law, unless authorized to do so
by mutual agreement between the bargaining agent and the employer.
If the collective bargaining agreement is subject to the National
Labor Relations Act, the employer may contract with a health care
organization for purposes of Section 4600.5 at any time when the
employer and bargaining agent have bargained to impasse to the extent
required by federal law.
(c) (1) When an employee is not receiving or is not eligible to
receive health care coverage for nonoccupational injuries or
illnesses provided by the employer, if 90 days from the date the
injury is reported the employee who has been receiving treatment from
a health care organization or his or her physician, chiropractor, or
other agent notifies his or her employer in writing that he or she
desires to stop treatment by the health care organization, he or she
shall have the right to be treated by a physician or at a facility of
his or her own choosing within a reasonable geographic area.
(2) When an employee is receiving or is eligible to receive health
care coverage for nonoccupational injuries or illnesses provided by
the employer, and has agreed to receive care for occupational
injuries and illnesses from a health care organization provided by
the employer, the employee may be treated for occupational injuries
and diseases by a physician of his or her own choice or at a facility
of his or her own choice within a reasonable geographic area if the
employee or his or her physician, chiropractor, or other agent
notifies his or her employer in writing only after 180 days from the
date the injury was reported, or upon the date of contract renewal or
open enrollment of the health care organization, whichever occurs
first, but in no case until 90 days from the date the injury was
reported.
(3) If the employee is receiving or is eligible to receive health
care coverage for nonoccupational injuries or illnesses provided by
the employer, and his or her physician or chiropractor for
nonoccupational illnesses or injuries is participating in at least
one of the health care organizations offered to the employee, and he
or she has chosen treatment by one of these health care organizations
for occupational injuries or illnesses, the employee may be treated
by a physician of his or her own choice or at a facility of his or
her own choice within a reasonable geographic area if the employee or
his or her physician, chiropractor, or other agent notifies his or
her employer in writing only after 365 days from the date the injury
was reported, or upon the date of contract renewal or open
enrollment, whichever occurs first, but in no case until 90 days from
the date the injury was reported.
(4) For purposes of this subdivision, an employer shall be deemed
to provide health care coverage for nonoccupational injuries and
illnesses if the employer pays more than one-half the costs of the
coverage, or if the plan is established pursuant to collective
bargaining.
(d) An employee and employer may agree to other forms of therapy
pursuant to Section 3209.7.
(e) An employee enrolled in a health care organization shall have
the right to no less than one change of physician on request, and
shall be given a choice of physicians affiliated with the health care
organization. The health care organization shall provide the
employee a choice of participating physicians within five days of
receiving a request. In addition, the employee shall have the right
to a second opinion from a participating physician on a matter
pertaining to diagnosis from a participating physician.
(f) Nothing in this section or Section 4600.5 shall be construed
to prohibit a self-insured employer, a group of self-insured
employers, or insurer from engaging in any activities permitted by
Section 4600.
(g) Notwithstanding subdivision (c), in the event that the
employer, group of employers, or the employer's workers' compensation
insurer no longer contracts with the health care organization that
has been treating an injured employee, the employee may continue
treatment provided or arranged by the health care organization. If
the employee does not choose to continue treatment by the health care
organization, the employer may control the employee's treatment for
30 days from the date the injury was reported. After that period,
the employee may be treated by a physician of his or her own choice
or at a facility of his or her own choice within a reasonable
geographic area.
SEC. 126. Section 5433 of the Labor Code is amended to read:
5433. (a) Any advertisement or other device designed to produce
leads based on a response from a person to file a workers'
compensation claim or to engage or consult counsel or a medical care
provider or clinic shall disclose that an agent may contact the
individual if that is the fact. In addition, an individual who makes
contact with a person as a result of acquiring that individual's
name from a lead generating device shall disclose that fact in the
initial contact with that person.
(b) No person shall solicit persons to file a workers'
compensation claim or to engage or consult counsel or a medical care
provider or clinic to consider a workers' compensation claim through
the use of a true or fictitious name which is deceptive or misleading
with regard to the status, character, or proprietary or
representative capacity of the entity or person, or to the true
purpose of the advertisement.
(c) For purposes of this section, an advertisement includes a
solicitation in any newspaper, magazine, circular, form letter, or
open publication, published, distributed, or circulated in this
state, or on any billboard, card, label, transit advertisement, or
other written advertising medium, and includes envelopes, stationery,
business cards, or other material designed to encourage the filing
of a workers' compensation claim.
(d) Advertisements shall not employ words, initials, letters,
symbols, or other devices which are so similar to those used by
governmental agencies, a nonprofit or charitable institution, or
other entity that they could have the capacity or tendency to mislead
the public. Examples of misleading materials include, but are not
limited to, those that imply any of the following:
(1) The advertiser is in some way provided by or is endorsed by a
governmental agency or charitable institution.
(2) The advertisement is the same as, is connected with, or
endorsed by a governmental agency or charitable institution.
(e) Advertisements may not use the name of a state or political
subdivision thereof in an advertising solicitation.
(f) Advertisements may not use any name, service mark, slogan,
symbol, or any device in any manner which implies that the
advertiser, or any person or entity associated with the advertiser,
or that any agency who may call upon the person in response to the
advertisement, is connected with a governmental agency.
(g) Advertisements may not imply that the reader, listener, or
viewer may lose a right or privilege or benefits under federal,
state, or local law if he or she fails to respond to the
advertisement.
SEC. 127. Section 1011 of the Military and Veterans Code is
amended to read:
1011. (a) There is in the department a Veterans' Home of
California, Yountville, situated in Yountville, Napa County.
(b) (1) The department may establish and construct a second home
that shall be situated in the County of Imperial, Los Angeles,
Orange, Riverside, San Bernardino, San Diego, or Ventura. The home
may be located on one or more sites. The department shall operate
the second home concurrently with the first home.
(2) The initial site is the Veterans' Home of California, Barstow,
situated in Barstow, San Bernardino County.
(3) When completed, the second site shall be the Veterans' Home of
California, Chula Vista, situated in Chula Vista, San Diego County,
pursuant to the recommendations made by the commission established
pursuant to Section 1011.5.
(4) When completed, the third site shall be the Veterans' Home of
California, Lancaster, situated in Lancaster, Los Angeles County,
pursuant to the recommendations made by the commission established
pursuant to Section 1011.5.
(5) When completed, the fourth site shall be the Veterans' Home of
California, Ventura, situated in the community of Saticoy, Ventura
County.
(6) There shall be an administrator for, and located at, each site
of the southern California home.
(7) The department may complete any preapplication process
necessary with the United States Department of Veterans Affairs for
construction of the second home.
(c) The Legislature hereby finds and declares that the second home
is a new state function. The department may perform any or all work
in operating the second home by independent contractors, except the
overall administration and management of the home. Any and all
actions of the department taken before September 17, 1996, that are
consistent with this subdivision are hereby ratified and confirmed,
it having at all times been the intent of the Legislature that the
department be so authorized.
SEC. 128-129. Section 290 of the Penal Code is amended to read:
290. (a) (1) (A) Every person described in paragraph (2), for the
rest of his or her life while residing in, or, if he or she has no
residence, while located within California, shall be required to
register with the chief of police of the city in which he or she is
residing, or if he or she has no residence, is located, or the
sheriff of the county if he or she is residing, or if he or she has
no residence, is located, in an unincorporated area or city that has
no police department, and, additionally, with the chief of police of
a campus of the University of California, the California State
University, or community college if he or she is residing, or if he
or she has no residence, is located upon the campus or in any of its
facilities, within five working days of coming into any city, county,
or city and county in which he or she temporarily resides, or, if he
or she has no residence, is located.
(B) If the person who is registering has no residence address, he
or she shall update his or her registration no less than once every
90 days in addition to the requirement in subparagraph (A), on a form
as may be required by the Department of Justice, with the entity or
entities described in subparagraph (A) in whose jurisdiction he or
she is located at the time he or she is updating the registration.
(C) Beginning on his or her first birthday following registration
or change of address, the person shall be required to register
annually, within five working days of his or her birthday, to update
his or her registration with the entities described in subparagraph
(A), including, verifying his or her name and address, or temporary
location, on a form as may be required by the Department of Justice.
(D) In addition, every person who is a sexually violent predator,
as defined in Section 6600 of the Welfare and Institutions Code,
shall, after his or her release from custody, verify his or her
address every 90 days in a manner established by the Department of
Justice.
(E) No entity shall require a person to pay a fee to register or
update his or her registration pursuant to this section.
(2) The following persons shall be required to register pursuant
to paragraph (1):
(A) Any person who, since July 1, 1944, has been, or hereafter is
convicted in any court in this state or in any federal or military
court of a violation of Section 207 or 209 committed with intent to
violate Section 261, 286, 288, 288a, or 289, Section 220, except
assault to commit mayhem, Section 243.4, paragraph (1), (2), (3),
(4), or (6) of subdivision (a) of Section 261, or paragraph (1) of
subdivision (a) of Section 262 involving the use of force or violence
for which the person is sentenced to the state prison, Section
264.1, 266, 266c, subdivision (b) of Section 266h, subdivision (b) of
Section 266i, 266j, 267, 269, 285, 286, 288, 288a, 288.5, or 289,
subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4,
311.10, 311.11, or 647.6, former Section 647a, subdivision (c) of
Section 653f, subdivision 1 or 2 of Section 314, any offense
involving lewd or lascivious conduct under Section 272, or any felony
violation of Section 288.2; or any person who since that date has
been or is hereafter convicted of the attempt to commit any of the
above-mentioned offenses.
(B) Any person who, since July 1, 1944, has been, or hereafter is
released, discharged, or paroled from a penal institution where he or
she was confined because of the commission or attempted commission
of one of the offenses described in subparagraph (A).
(C) Any person who, since July 1, 1944, has been, or hereafter is
determined to be a mentally disordered sex offender under Article 1
(commencing with Section 6300) of Chapter 2 of Part 2 of Division 6
of the Welfare and Institutions Code or any person who has been found
guilty in the guilt phase of a trial for an offense for which
registration is required by this section but who has been found not
guilty by reason of insanity in the sanity phase of the trial.
(D) Any person who, since July 1,
1944, has been, or hereafter is convicted in any other court,
including any state, federal, or military court, of any offense
which, if committed or attempted in this state, would have been
punishable as one or more of the offenses described in subparagraph
(A) or any person ordered by any other court, including any state,
federal, or military court, to register as a sex offender for any
offense, if the court found at the time of conviction that the person
committed the offense as a result of sexual compulsion or for
purposes of sexual gratification.
(E) Any person ordered by any court to register pursuant to this
section for any offense not included specifically in this section if
the court finds at the time of conviction that the person committed
the offense as a result of sexual compulsion or for purposes of
sexual gratification. The court shall state on the record the
reasons for its findings and the reasons for requiring registration.
(F) (i) Notwithstanding any other subdivision, a person who was
convicted before January 1, 1976, under subdivision (a) of Section
286, or Section 288a, shall not be required to register pursuant to
this section for that conviction if the conviction was for conduct
between consenting adults that was decriminalized by Chapter 71 of
the Statutes of 1975 or Chapter 1139 of the Statutes of 1976. The
Department of Justice shall remove that person from the Sex Offender
Registry, and the person is discharged from his or her duty to
register pursuant to the following procedure:
(I) The person submits to the Department of Justice official
documentary evidence, including court records or police reports, that
demonstrates that the person's conviction pursuant to either of
those sections was for conduct between consenting adults that was
decriminalized; or
(II) The person submits to the department a declaration stating
that the person's conviction pursuant to either of those sections was
for consensual conduct between adults that has been decriminalized.
The declaration shall be confidential and not a public record, and
shall include the person's name, address, telephone number, date of
birth, and a summary of the circumstances leading to the conviction,
including the date of the conviction and county of the occurrence.
(III) The department shall determine whether the person's
conviction was for conduct between consensual adults that has been
decriminalized. If the conviction was for consensual conduct between
adults that has been decriminalized, and the person has no other
offenses for which he or she is required to register pursuant to this
section, the department shall, within 60 days of receipt of those
documents, notify the person that he or she is relieved of the duty
to register, and shall notify the local law enforcement agency with
which the person is registered that he or she has been relieved of
the duty to register. The local law enforcement agency shall remove
the person's registration from its files within 30 days of receipt of
notification. If the documentary or other evidence submitted is
insufficient to establish the person's claim, the department shall,
within 60 days of receipt of those documents, notify the person that
his or her claim cannot be established, and that the person shall
continue to register pursuant to this section. The department shall
provide, upon the person's request, any information relied upon by
the department in making its determination that the person shall
continue to register pursuant to this section. Any person whose
claim has been denied by the department pursuant to this clause may
petition the court to appeal the department's denial of the person's
claim.
(ii) On or before July 1, 1998, the department shall make a report
to the Legislature concerning the status of persons who may come
under the provisions of this subparagraph, including the number of
persons who were convicted before January 1, 1976, under subdivision
(a) of Section 286 or Section 288a and are required to register under
this section, the average age of these persons, the number of these
persons who have any subsequent convictions for a registerable sex
offense, and the number of these persons who have sought successfully
or unsuccessfully to be relieved of their duty to register under
this section.
(b) (1) Any person who is released, discharged, or paroled from a
jail, state or federal prison, school, road camp, or other
institution where he or she was confined because of the commission or
attempted commission of one of the offenses specified in subdivision
(a) or is released from a state hospital to which he or she was
committed as a mentally disordered sex offender under Article 1
(commencing with Section 6300) of Chapter 2 of Part 2 of Division 6
of the Welfare and Institutions Code, shall, prior to discharge,
parole, or release, be informed of his or her duty to register under
this section by the official in charge of the place of confinement or
hospital, and the official shall require the person to read and sign
any form that may be required by the Department of Justice, stating
that the duty of the person to register under this section has been
explained to the person. The official in charge of the place of
confinement or hospital shall obtain the address where the person
expects to reside upon his or her discharge, parole, or release and
shall report the address to the Department of Justice.
(2) The official in charge of the place of confinement or hospital
shall give one copy of the form to the person and shall send one
copy to the Department of Justice and one copy to the appropriate law
enforcement agency or agencies having jurisdiction over the place
the person expects to reside upon discharge, parole, or release. If
the conviction that makes the person subject to this section is a
felony conviction, the official in charge shall, not later than 45
days prior to the scheduled release of the person, send one copy to
the appropriate law enforcement agency or agencies having local
jurisdiction where the person expects to reside upon discharge,
parole, or release; one copy to the prosecuting agency that
prosecuted the person; and one copy to the Department of Justice.
The official in charge of the place of confinement shall retain one
copy.
(c) Any person who is convicted in this state of the commission or
attempted commission of any of the offenses specified in subdivision
(a) and who is released on probation or discharged upon payment of a
fine shall, prior to release or discharge, be informed of the duty
to register under this section by the probation department, and a
probation officer shall require the person to read and sign any form
that may be required by the Department of Justice, stating that the
duty of the person to register under this section has been explained
to him or her. The probation officer shall obtain the address where
the person expects to reside upon release or discharge and shall
report within three days the address to the Department of Justice.
The probation officer shall give one copy of the form to the person,
send one copy to the Department of Justice, and forward one copy to
the appropriate law enforcement agency or agencies having local
jurisdiction where the person expects to reside upon his or her
discharge, parole, or release.
(d) (1) Any person who, on or after January 1, 1986, is discharged
or paroled from the Department of the Youth Authority to the custody
of which he or she was committed after having been adjudicated a
ward of the juvenile court pursuant to Section 602 of the Welfare and
Institutions Code because of the commission or attempted commission
of any offense described in paragraph (3) shall be subject to
registration under the procedures of this section.
(2) Any person who is discharged or paroled from a facility in
another state that is equivalent to the Department of the Youth
Authority, to the custody of which he or she was committed because of
an offense which, if committed or attempted in this state, would
have been punishable as one or more of the offenses described in
paragraph (3), shall be subject to registration under the procedures
of this section.
(3) Any person described in this subdivision who committed an
offense in violation of any of the following provisions shall be
required to register pursuant to this section:
(A) Assault with intent to commit rape, sodomy, oral copulation,
or any violation of Section 264.1, 288, or 289 under Section 220.
(B) Any offense defined in paragraph (1), (2), (3), (4), or (6) of
subdivision (a) of Section 261, Section 264.1, 266c, or 267,
paragraph (1) of subdivision (b) of, or subdivision (c) or (d) of,
Section 286, Section 288 or 288.5, paragraph (1) of subdivision (b)
of, or subdivision (c) or (d) of, Section 288a, subdivision (a) of
Section 289, or Section 647.6.
(C) A violation of Section 207 or 209 committed with the intent to
violate Section 261, 286, 288, 288a, or 289.
(4) Prior to discharge or parole from the Department of the Youth
Authority, any person who is subject to registration under this
subdivision shall be informed of the duty to register under the
procedures set forth in this section. Department of the Youth
Authority officials shall transmit the required forms and information
to the Department of Justice.
(5) All records specifically relating to the registration in the
custody of the Department of Justice, law enforcement agencies, and
other agencies or public officials shall be destroyed when the person
who is required to register has his or her records sealed under the
procedures set forth in Section 781 of the Welfare and Institutions
Code. This subdivision shall not be construed as requiring the
destruction of other criminal offender or juvenile records relating
to the case that are maintained by the Department of Justice, law
enforcement agencies, the juvenile court, or other agencies and
public officials unless ordered by a court under Section 781 of the
Welfare and Institutions Code.
(e) (1) On or after January 1, 1998, upon incarceration,
placement, or commitment, or prior to release on probation, any
person who is required to register under this section shall
preregister. The preregistering official shall be the admitting
officer at the place of incarceration, placement, or commitment, or
the probation officer if the person is to be released on probation.
The preregistration shall consist of both of the following:
(A) A preregistration statement in writing, signed by the person,
giving information that may be required by the Department of Justice.
(B) The fingerprints and photograph of the person.
(2) Any person who is preregistered pursuant to this subdivision
is required to be preregistered only once.
(3) A person described in paragraph (2) of subdivision (a) shall
register, or reregister if the person has previously registered, upon
release from incarceration, placement, or commitment, pursuant to
paragraph (1) of subdivision (a). The registration shall consist of
all of the following:
(A) A statement in writing signed by the person, giving
information as may be required by the Department of Justice.
(B) The fingerprints and photograph of the person.
(C) The license plate number of any vehicle owned by, regularly
driven by, or registered in the name of, the person.
(D) Notice to the person that, in addition to the requirements of
paragraph (4), he or she may have a duty to register in any other
state where he or she may relocate.
(4) Within three days thereafter, the preregistering official or
the registering law enforcement agency or agencies shall forward the
statement, fingerprints, photograph, and vehicle license plate
number, if any, to the Department of Justice.
(f) (1) If any person who is required to register pursuant to this
section changes his or her residence address, the person shall
inform, in writing within five working days, the law enforcement
agency or agencies with which he or she last registered of the new
address. The law enforcement agency or agencies shall, within three
days after receipt of this information, forward a copy of the change
of address information to the Department of Justice. The Department
of Justice shall forward appropriate registration data to the law
enforcement agency or agencies having local jurisdiction of the new
place of residence.
(2) If any person who is required to register pursuant to this
section changes his or her name, the person shall inform, in person,
the law enforcement agency or agencies with which he or she is
currently registered within five working days. The law enforcement
agency or agencies shall forward a copy of this information to the
Department of Justice within three days of its receipt.
(g) (1) Any person who is required to register under this section
based on a misdemeanor conviction who willfully violates any
requirement of this section is guilty of a misdemeanor punishable by
imprisonment in a county jail not exceeding one year.
(2) Except as provided in paragraph (5), any person who is
required to register under this section based on a felony conviction
who willfully violates any requirement of this section or who has a
prior conviction for the offense of failing to register under this
section and who subsequently and willfully violates any requirement
of this section is guilty of a felony and shall be punished by
imprisonment in the state prison for 16 months, or two or three
years.
If probation is granted or if the imposition or execution of
sentence is suspended, it shall be a condition of the probation or
suspension that the person serve at least 90 days in a county jail.
The penalty described in this paragraph shall apply whether or not
the person has been released on parole or has been discharged from
parole.
(3) Any person determined to be a mentally disordered sex offender
or who has been found guilty in the guilt phase of trial for an
offense for which registration is required under this section, but
who has been found not guilty by reason of insanity in the sanity
phase of the trial, who willfully violates any requirement of this
section is guilty of a misdemeanor and shall be punished by
imprisonment in a county jail not exceeding one year. For any second
or subsequent willful violation of any requirement of this section,
the person is guilty of a felony and shall be punished by
imprisonment in the state prison for 16 months, or two or three
years.
(4) If, after discharge from parole, the person is convicted of a
felony as specified in this subdivision, he or she shall be required
to complete parole of at least one year, in addition to any other
punishment imposed under this subdivision. A person convicted of a
felony as specified in this subdivision may be granted probation only
in the unusual case where the interests of justice would best be
served. When probation is granted under this paragraph, the court
shall specify on the record and shall enter into the minutes the
circumstances indicating that the interests of justice would best be
served by the disposition.
(5) Any person who, as a sexually violent predator, as defined in
Section 6600 of the Welfare and Institutions Code, fails to verify
his or her registration every 90 days as required pursuant to
subparagraph (D) of paragraph (1) of subdivision (a), shall be
punished by imprisonment in the state prison, or in a county jail not
exceeding one year.
(6) In addition to any other penalty imposed under this
subdivision, any person who is required pursuant to subparagraph (B)
of paragraph (1) of subdivision (a) to update his or her registration
every 90 days and willfully fails to update his or her registration
is guilty of a misdemeanor and shall be punished by imprisonment in a
county jail not exceeding six months. Any subsequent violation of
this requirement that persons described in subdivision (B) of
paragraph (1) of subdivision (a) shall update their registration
every 90 days is also a misdemeanor and shall be punished by
imprisonment in a county jail not exceeding six months.
(7) Any person who is required to register under this section who
willfully violates any requirement of this section is guilty of a
continuing offense.
(h) Whenever any person is released on parole or probation and is
required to register under this section but fails to do so within the
time prescribed, the parole authority, the Youthful Offender Parole
Board, or the court, as the case may be, shall order the parole or
probation of the person revoked. For purposes of this subdivision,
"parole authority" has the same meaning as described in Section 3000.
(i) Except as provided in subdivisions (m) and (n) and Section
290.4, the statements, photographs, and fingerprints required by this
section shall not be open to inspection by the public or by any
person other than a regularly employed peace officer or other law
enforcement officer.
(j) In any case in which a person who would be required to
register pursuant to this section for a felony conviction is to be
temporarily sent outside the institution where he or she is confined
on any assignment within a city or county including firefighting,
disaster control, or of whatever nature the assignment may be, the
local law enforcement agency having jurisdiction over the place or
places where the assignment shall occur shall be notified within a
reasonable time prior to removal from the institution. This
subdivision shall not apply to any person who is temporarily released
under guard from the institution where he or she is confined.
(k) As used in this section, "mentally disordered sex offender"
includes any person who has been determined to be a sexual psychopath
or a mentally disordered sex offender under any provision which, on
or before January 1, 1976, was contained in Division 6 (commencing
with Section 6000) of the Welfare and Institutions Code.
(l) (1) Every person who, prior to January 1, 1997, is required to
register under this section, shall be notified whenever he or she
next reregisters of the reduction of the registration period from 14
to five working days. This notice shall be provided in writing by
the registering agency or agencies. Failure to receive this
notification shall be a defense against the penalties prescribed by
subdivision (g) if the person did register within 14 days.
(2) Every person who, as a sexually violent predator, as defined
in Section 6600 of the Welfare and Institutions Code, is required to
verify his or her registration every 90 days, shall be notified
wherever he or she next registers of his or her increased
registration obligations. This notice shall be provided in writing
by the registering agency or agencies. Failure to receive this
notice shall be a defense against the penalties prescribed by
paragraph (5) of subdivision (g).
(m) (1) When a peace officer reasonably suspects, based on
information that has come to his or her attention through information
provided by any peace officer or member of the public, that a child
or other person may be at risk from a sex offender convicted of a
crime listed in paragraph (1) of subdivision (a) of Section 290.4, a
law enforcement agency may, notwithstanding any other provision of
law, provide any of the information specified in paragraph (2) of
this subdivision about that registered sex offender that the agency
deems relevant and necessary to protect the public, to the following
persons, agencies, or organizations the offender is likely to
encounter, including, but not limited to, the following:
(A) Public and private educational institutions, day care
establishments, and establishments and organizations that primarily
serve individuals likely to be victimized by the offender.
(B) Other community members at risk.
(2) The information that may be disclosed pursuant to this section
includes the following:
(A) The offender's full name.
(B) The offender's known aliases.
(C) The offender's gender.
(D) The offender's race.
(E) The offender's physical description.
(F) The offender's photograph.
(G) The offender's date of birth.
(H) Crimes resulting in registration under this section.
(I) The offender's address, which shall be verified prior to
publication.
(J) Description and license plate number of offender's vehicles or
vehicles the offender is known to drive.
(K) Type of victim targeted by the offender.
(L) Relevant parole or probation conditions, such as one
prohibiting contact with children.
(M) Dates of crimes resulting in classification under this
section.
(N) Date of release from confinement.
However, information disclosed pursuant to this subdivision shall
not include information that would identify the victim.
(3) If a law enforcement agency discloses information pursuant to
this subdivision, it shall include, with the disclosure, a statement
that the purpose of the release of the information is to allow
members of the public to protect themselves and their children from
sex offenders.
(4) For purposes of this section, "likely to encounter" means both
of the following:
(A) That the agencies, organizations, or other community members
are in a location or in close proximity to a location where the
offender lives or is employed, or that the offender visits or is
likely to visit on a regular basis.
(B) The types of interaction that ordinarily occur at that
location and other circumstances indicate that contact with the
offender is reasonably probable.
(5) For purposes of this section, "reasonably suspects" means that
it is objectively reasonable for a peace officer to entertain a
suspicion, based upon facts that could cause a reasonable person in a
like position, drawing when appropriate on his or her training and
experience, to suspect that a child or other person is at risk.
(6) For purposes of this section, "at risk" means a person is or
may be exposed to a risk of becoming a victim of a sex offense
committed by the offender.
(7) A law enforcement agency may continue to disclose information
about an offender under this subdivision for as long as the offender
is included in Section 290.4.
(n) In addition to the procedures set forth in this section, a
designated law enforcement entity may advise the public of the
presence of high-risk sex offenders in its community pursuant to this
subdivision.
(1) For purposes of this subdivision:
(A) A high-risk sex offender is a person who has been convicted of
an offense specified in paragraph (1) of subdivision (a) of Section
290.4 and meets any of the following criteria:
(i) Has been convicted of three or more violent sex offenses, at
least two of which were brought and tried separately.
(ii) Has been convicted of two violent sex offenses and one or
more violent nonsex offenses, at least two of which were brought and
tried separately.
(iii) Has been convicted of one violent sex offense and two or
more violent nonsex offenses, at least two of which were brought and
tried separately.
(iv) Has been convicted of either two violent sex offenses or one
violent sex offense and one violent nonsex offense, at least two of
which were brought and tried separately, and has been arrested on
separate occasions for three or more violent sex offenses, violent
nonsex offenses, or associated offenses.
(v) Has been adjudicated a sexually violent predator pursuant to
Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of
Division 6 of the Welfare and Institutions Code.
(B) A violent sex offense means any offense defined in Section
220, except attempt to commit mayhem, 261, 264.1, 286, 288, 288a,
288.5, 289, or 647.6, or infliction of great bodily injury during the
commission of a sex offense, as provided in Section 12022.8.
(C) A violent nonsex offense means any offense defined in Section
187, subdivision (a) of Section 192, or Section 203, 206, 207, or
236, provided that the offense is a felony, subdivision (a) of
Section 273a, Section 273d or 451, or attempted murder, as defined in
Sections 187 and 664.
(D) An associated offense means any offense defined in Section
243.4, provided that the offense is a felony, Section 311.1, 311.2,
311.3, 311.4, 311.5, 311.6, 311.7, or 314, Section 459, provided the
offense is of the first degree, Section 597 or 646.9, subdivision
(d), (h), or (i) of Section 647, Section 653m, or infliction of great
bodily injury during the commission of a felony, as defined in
Section 12022.7.
(E) For purposes of subparagraphs (B) to (D), inclusive, an arrest
or conviction for the statutory predecessor of any of the enumerated
offenses, or an arrest or conviction in any other jurisdiction for
any offense which, if committed or attempted in this state, would
have been punishable as one or more of the offenses described in
those subparagraphs, is to be considered in determining whether an
offender is a high-risk sex offender.
(F) For purposes of subparagraphs (B) to (D), inclusive, an arrest
as a juvenile or an adjudication as a ward of the juvenile court
within the meaning of Section 602 of the Welfare and Institutions
Code for any of the offenses described in those subparagraphs is to
be considered in determining whether an offender is a high-risk sex
offender.
(G) Notwithstanding subparagraphs (A) to (D), inclusive, an
offender shall not be considered to be a high-risk sex offender if
either of the following apply:
(i) The offender's most recent conviction or arrest for an offense
described in subparagraphs (B) to (D), inclusive, occurred more than
five years prior to the high-risk assessment by the Department of
Justice, excluding periods of confinement.
(ii) The offender notifies the Department of Justice, on a form
approved by the department and available at any sheriff's office,
that he or she has not been convicted in the preceding 15 years,
excluding periods of confinement, of an offense for which
registration is required under paragraph (2) of subdivision (a), and
the department is able, upon exercise of reasonable diligence, to
verify the information provided in paragraph (2).
(H) "Confinement" means confinement in a jail, prison, school,
road camp, or other penal institution, confinement in a state
hospital to which the offender was committed as a mentally disordered
sex offender under Article 1 (commencing with Section 6300) of
Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions
Code, or confinement in a facility designated by the Director of
Mental Health to which the offender was committed as
a sexually violent predator under
Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of
Division 6 of the Welfare and Institutions Code.
(I) "Designated law enforcement entity" means a municipal police
department, sheriff's department, district attorney's office, county
probation department, Department of Justice, Department of
Corrections, Department of the Youth Authority, Department of the
California Highway Patrol, or the police department of any campus of
the University of California, the California State University, or any
community college.
(2) The Department of Justice shall continually search the records
provided to it pursuant to subdivision (b) and identify, on the
basis of those records, high-risk sex offenders. Four times each
year, the department shall provide to each chief of police and
sheriff in the state, and to any other designated law enforcement
entity upon request, the following information regarding each
identified high-risk sexual offender: full name; known aliases;
gender; race; physical description; photograph; date of birth; and
crimes resulting in classification under this section.
(3) The Department of Justice and any designated law enforcement
entity to which notice has been given pursuant to paragraph (2) may
cause to be made public, by whatever means the agency deems necessary
to ensure the public safety, based upon information available to the
agency concerning a specific person, including, but not limited to,
the information described in paragraph (2); the offender's address,
which shall be verified prior to publication; description and license
plate number of the offender's vehicles or vehicles the offender is
known to drive; type of victim targeted by the offender; relevant
parole or probation conditions, such as one prohibiting contact with
children; dates of crimes resulting in classification under this
section; and date of release from confinement; but excluding
information that would identify the victim.
(o) Agencies disseminating information to the public pursuant to
Section 290.4 shall maintain records of those persons requesting to
view the CD-ROM or other electronic media for a minimum of five
years. Agencies disseminating information to the public pursuant to
subdivision (n) shall maintain records of the means and dates of
dissemination for a minimum of five years.
(p) Law enforcement agencies and employees of law enforcement
agencies shall be immune from liability for good faith conduct under
this section. For the purposes of this section, "law enforcement
agency" means the Attorney General, any district attorney, and any
state agency expressly authorized by statute to investigate or
prosecute law violators.
(q) Any person who uses information disclosed pursuant to this
section to commit a felony shall be punished, in addition and
consecutive to any other punishment, by a five-year term of
imprisonment in the state prison. Any person who uses information
disclosed pursuant to this section to commit a misdemeanor shall be
subject to, in addition to any other penalty or fine imposed, a fine
of not less than five hundred dollars ($500) and not more than one
thousand dollars ($1,000).
(r) The registration and public notification provisions of this
section are applicable to every person described in this section,
without regard to when his or her crimes were committed or his or her
duty to register pursuant to this section arose, and to every
offense described in this section, regardless of when it was
committed.
SEC. 130. Section 290.4 of the Penal Code is amended to read:
290.4. (a) (1) The Department of Justice shall continually
compile information as described in paragraph (2) regarding any
person required to register under Section 290 for a conviction of
Section 207 or 209 committed with the intent to violate Section 261,
286, 288, 288a, or 289; Section 220, except assault to commit mayhem;
Section 243.4, provided that the offense is a felony; paragraph (1),
(2), (3), (4), or (6) of subdivision (a) of Section 261; Section
264.1; Section 266, provided that the offense is a felony; Section
266c, provided that the offense is a felony; Section 266j; Section
267; paragraph (1) of subdivision (b) of Section 286, provided that
the offense is a felony; paragraph (2) of subdivision (b),
subdivision (c), (d), (f), (g), (i), (j), or (k) of Section 286;
Section 288; paragraph (1) of subdivision (b) of Section 288a,
provided that the offense is a felony; paragraph (2) of subdivision
(b), (c), (d), (f), (g), (i), (j), or (k) of Section 288a; Section
288.5; subdivision (a), (b), (d), (e), (f), (g), or (h) of Section
289, provided that the offense is a felony; subdivision (i) or (j) of
Section 289; Section 647.6; or the statutory predecessor of any of
these offenses or any offense which, if committed or attempted in
this state, would have been punishable as one or more of the offenses
described in this section. This requirement shall not be applied to
a person whose duty to register has been terminated pursuant to
paragraph (5) of subdivision (d) of Section 290, or to a person who
has been relieved of his or her duty to register under Section 290.5.
(2) The information shall be categorized by community of residence
and ZIP Code. The information shall include the names and known
aliases of the person, photograph, a physical description, gender,
race, date of birth, the criminal history, and the address, including
ZIP Code, in which the person resides, and any other information
that the Department of Justice deems relevant, not including
information that would identify the victim.
(3) The department shall operate a "900" telephone number that
members of the public may call and inquire whether a named individual
is listed among those described in this subdivision. The caller
shall furnish his or her first name, middle initial, and last name.
The department shall ascertain whether a named person reasonably
appears to be a person so listed and provide the caller with the
information described in paragraph (2), except the department shall
not disclose the street address or criminal history of a person
listed, except to disclose the ZIP Code area in which the person
resides and to describe the specific crimes for which the registrant
was required to register. The department shall decide whether the
named person reasonably appears to be a person listed, based upon
information from the caller providing information that shall include
either (A) an exact street address, including apartment number,
social security number, California driver's license or identification
number, or birth date along with additional information that may
include any of the following: name, hair color, eye color, height,
weight, distinctive markings, ethnicity, or (B) any combination of at
least six of the above listed characteristics if an exact birth date
or address is not available. If three of the characteristics
provided include ethnicity, hair color, and eye color, a seventh
identifying characteristic shall be provided. Any information
identifying the victim by name, birth date, address, or relation to
the registrant shall be excluded by the department.
(4) (A) On or before July 1, 1997, the department shall provide a
CD-ROM or other electronic medium containing the information
described in paragraph (2), except the person's street address and
criminal history other than the specific crimes for which the person
was required to register, for all persons described in paragraph (1)
of subdivision (a), and shall distribute the CD-ROM or other
electronic medium on a quarterly basis to the sheriff's department in
each county, municipal police departments of cities with a
population of more than 200,000, and each law enforcement agency
listed in subparagraph (I) of paragraph (1) of subdivision (n) of
Section 290. These law enforcement agencies may obtain additional
copies by purchasing a yearly subscription to the CD-ROM or other
electronic medium from the Department of Justice for a yearly
subscription fee. The Department of Justice, the sheriff's
departments, and the municipal police departments of cities with a
population of more than 200,000 shall make, and the other law
enforcement agencies may make, the CD-ROM or other electronic medium
available for viewing by the public in accordance with the following:
The agency may require that a person applying to view the CD-ROM or
other electronic medium express an articulable purpose in order to
have access thereto. The applicant shall provide identification in
the form of a California driver's license or California
identification card, showing the applicant to be at least 18 years of
age, and shall sign a statement, on a form provided by the
Department of Justice, stating that the applicant is not a registered
sex offender, that he or she understands the purpose of the release
of information is to allow members of the public to protect
themselves and their children from sex offenders, and he or she
understands it is unlawful to use information obtained from the
CD-ROM or other electronic medium to commit a crime against any
registrant or to engage in illegal discrimination or harassment of
any registrant. The signed statement shall be maintained in a file
in the designated law enforcement agency's office.
(B) The records of persons requesting to view the CD-ROM or other
electronic medium are confidential, except that a copy of the
applications requesting to view the CD-ROM or other electronic medium
may be disclosed to law enforcement agencies for law enforcement
purposes.
(C) Any information identifying the victim by name, birth date,
address, or relationship to the registrant shall be excluded from the
CD-ROM or other electronic medium.
(5) (A) The income from the operation of the "900" telephone
number shall be deposited in the Sexual Predator Public Information
Account, which is hereby established within the Department of Justice
for the purpose of the implementation of this section by the
Department of Justice, including all actual and reasonable costs
related to establishing and maintaining the information described in
subdivision (a) and the CD-ROM or other electronic medium described
in this subdivision.
(B) The moneys in the Sexual Predator Public Information Account
shall consist of income from the operation of the "900" telephone
number program authorized by this section, proceeds of the loan made
pursuant to Section 6 of Chapter 867 of the Statutes of 1994, and any
other funds made available to the account by the Legislature.
Moneys in the account shall be available to the Department of Justice
upon appropriation by the Legislature for the purpose specified in
subparagraph (A).
(C) When the "900" telephone number is called, a preamble shall be
played before charges begin to accrue. The preamble shall run at
least the length of time required by federal law and shall provide
all of the following information:
(i) Notice that the caller's telephone number will be recorded.
(ii) The charges for use of the "900" telephone number.
(iii) Notice that the caller is required to identify himself or
herself to the operator.
(iv) Notice that the caller is required to be 18 years of age or
older.
(v) A warning that it is illegal to use information obtained
through the "900" telephone number to commit a crime against any
registrant or to engage in illegal discrimination or harassment
against any registrant.
(vi) Notice that the caller is required to have the birth date,
California driver's license or identification number, social security
number, address, or other identifying information regarding the
person about whom information is sought in order to achieve a
positive identification of that person.
(vii) A statement that the number is not a crime hotline and that
any suspected criminal activity should be reported to local
authorities.
(viii) A statement that the caller should have a reasonable
suspicion that a person is at risk.
(D) The Department of Justice shall expend no more than six
hundred thousand dollars ($600,000) per year from any moneys
appropriated by the Legislature from the account.
(b) (1) Any person who uses information disclosed pursuant to this
section to commit a felony shall be punished, in addition and
consecutive to, any other punishment, by a five-year term of
imprisonment in the state prison.
(2) Any person who, without authorization, uses information
disclosed pursuant to this section to commit a misdemeanor shall be
subject to, in addition to any other penalty or fine imposed, a fine
of not less than five hundred dollars ($500) and not more than one
thousand dollars ($1,000).
(c) The record of the compilation of offender information on each
CD-ROM or other electronic medium distributed pursuant to this
section only shall be used for law enforcement purposes and the
public safety purposes specified in this section and Section 290.
This record shall not be distributed or removed from the custody of
the law enforcement agency that is authorized to retain it.
Information obtained from this record shall be disclosed to a member
of the public only as provided in this section or Section 290, or any
other statute expressly authorizing the disclosure.
Any person who copies, distributes, discloses, or receives this
record or information from it, except as authorized by law, is guilty
of a misdemeanor, punishable by imprisonment in a county jail not to
exceed six months or by a fine not exceeding one thousand dollars
($1,000), or by both that imprisonment and fine. This subdivision
does not apply to a law enforcement officer who makes a copy as part
of his or her official duties in the course of a criminal
investigation, court case, or as otherwise authorized by subdivision
(n) of Section 290. This subdivision shall not prohibit copying
information by handwriting.
Notwithstanding Section 6254.5 of the Government Code, disclosure
of information pursuant to this section is not a waiver of exemptions
under Chapter 3.5 (commencing with Section 6250) of Title 1 of
Division 7 of the Government Code and does not affect other statutory
restrictions on disclosure in other situations.
(d) Unauthorized removal or destruction of the CD-ROM or other
electronic medium from the offices of any law enforcement agency is a
misdemeanor, punishable by imprisonment in a county jail not to
exceed one year, or by a fine not exceeding one thousand dollars
($1,000), or by both that imprisonment and fine.
(e) (1) A person is authorized to use information disclosed
pursuant to this section only to protect a person at risk.
This section shall not affect authorized access to, or use of,
information pursuant to, among other provisions, Sections 11105 and
11105.3 of this code, Section 226.55 of the Civil Code, Sections
777.5 and 14409.2 of the Financial Code, Sections 1522.01 and
1596.871 of the Health and Safety Code, or Section 432.7 of the Labor
Code.
(2) Except as authorized under paragraph (1) or any other
provision of law, use of any information, for purposes relating to
any of the following, and that is disclosed pursuant to this section,
is prohibited:
(A) Health insurance.
(B) Insurance.
(C) Loans.
(D) Credit.
(E) Employment.
(F) Education, scholarships, or fellowships.
(G) Housing or accommodations.
(H) Benefits, privileges, or services provided by any business
establishment.
(3) (A) Any use of information disclosed pursuant to this section
for purposes other than those provided by paragraph (1) of
subdivision (e) or in violation of paragraph (2) of subdivision (e)
shall make the user liable for the actual damages, and any amount
that may be determined by a jury or a court sitting without a jury,
not exceeding three times the amount of actual damage, and not less
than two hundred fifty dollars ($250), and attorney's fees, exemplary
damages, or a civil penalty not exceeding twenty-five thousand
dollars ($25,000).
(B) Whenever there is reasonable cause to believe that any person
or group of persons is engaged in a pattern or practice of misuse of
the "900" telephone number in violation of paragraph (2) of
subdivision (e), the Attorney General, any district attorney, or city
attorney, or any person aggrieved by the misuse of that number is
authorized to bring a civil action in the appropriate court
requesting preventive relief, including an application for a
permanent or temporary injunction, restraining order, or other order
against the person or group of persons responsible for the pattern or
practice of misuse. The foregoing remedies shall be independent of
any other remedies or procedures that may be available to an
aggrieved party under other provisions of law, including Part 2
(commencing with Section 43) of Division 1 of the Civil Code.
(f) This section does not authorize the publication, distribution,
or disclosure of the address of any person about whom information
can be published, distributed, or disclosed pursuant to this section.
(g) Community notification shall be governed by subdivisions (m)
and (n) of Section 290.
(h) The Department of Justice shall submit to the Legislature an
annual report on the operation of the "900" telephone number required
by paragraph (3) of subdivision (a) on July 1, 1996, July 1, 1997,
and July 1, 1998. The annual report shall include all of the
following:
(1) Number of calls received.
(2) Amount of income earned per year through operation of the "900"
telephone number.
(3) A detailed outline of the amount of money expended and the
manner in which it was expended for purposes of this section.
(4) Number of calls that resulted in an affirmative response and
the number of calls that resulted in a negative response with regard
to whether a named individual was listed pursuant to subdivision (a).
(5) Number of persons listed pursuant to subdivision (a).
(6) A summary of the success of the "900" telephone number program
based upon selected factors.
(i) Any law enforcement agency and any employee thereof is immune
from liability for good faith conduct under this section. For the
purposes of this section, "law enforcement agency" means the Attorney
General, any district attorney, and any state agency expressly
authorized by statute to investigate or prosecute law violators.
(j) On or before July 1, 2000, the Department of Justice shall
make a report to the Legislature concerning the changes to the
operation of the "900" telephone number program made by the
amendments to this section by Chapter 908 of the Statutes of 1996.
The report shall include all of the following:
(1) Number of calls received by county.
(2) Number of calls that resulted in an affirmative response and
the number of calls that resulted in a negative response with regard
to whether a named individual was listed pursuant to subdivision (a).
(3) Number of persons listed pursuant to subdivision (a).
(4) Statistical information concerning prosecutions of persons for
misuse of the "900" telephone number program, including the outcomes
of those prosecutions.
(5) A summary of the success of the "900" telephone number based
upon selected factors.
(k) The registration and public notification provisions of this
section are applicable to every person described in these sections,
without regard to when his or her crimes were committed or his or her
duty to register pursuant to this section arose, and to every
offense described in these sections, regardless of when it was
committed.
(l) No later than December 31, 1998, the Department of Justice
shall prepare an informational pamphlet that shall be mailed to any
member of the public who makes an inquiry using the "900" telephone
number required by this section and who provides an address. The
pamphlet shall provide basic information concerning appropriate steps
that parents, guardians, and other responsible adults can take to
ensure a child is safe from a suspected child molester, including,
but not limited to, how to identify suspicious activity by an adult,
common facts and myths about child molesters, and how to obtain
additional help and information. A notice to callers to the "900"
telephone number that they will receive the pamphlet, if an address
is provided, shall be included in the preamble required by this
section.
(m) This section shall remain operative only until January 1,
2001, and as of that date is repealed unless a later enacted statute,
which becomes effective on or before that date, deletes or extends
that date.
SEC. 131. Section 629.82 of the Penal Code is amended to read:
629.82. (a) If a peace officer or federal law enforcement
officer, while engaged in intercepting wire, electronic digital
pager, or electronic cellular telephone communications in the manner
authorized by this chapter, intercepts wire, electronic digital
pager, or electronic cellular telephone communications relating to
crimes other than those specified in the order of authorization, but
which are enumerated in subdivision (a) of Section 629.52, (1) the
contents thereof, and evidence derived therefrom, may be disclosed or
used as provided in Sections 629.74 and 629.76 and (2) the contents
and any evidence derived therefrom may be used under Section 629.78
when authorized by a judge if the judge finds, upon subsequent
application, that the contents were otherwise intercepted in
accordance with the provisions of this chapter. The application
shall be made as soon as practicable.
(b) If a peace officer or federal law enforcement officer, while
engaged in intercepting wire, electronic digital pager, or electronic
cellular telephone communications in the manner authorized by this
chapter, intercepts wire, electronic digital pager, or electronic
cellular telephone communications relating to crimes other than those
specified in the order of authorization, the contents thereof, and
evidence derived therefrom, may not be disclosed or used as provided
in Sections 629.74 and 629.76, except to prevent the commission of a
public offense. The contents and any evidence derived therefrom may
not be used under Section 629.78, except where the evidence was
obtained through an independent source or inevitably would have been
discovered, and the use is authorized by a judge who finds that the
contents were intercepted in accordance with this chapter.
(c) The use of the contents of an intercepted wire, electronic
digital pager, or electronic cellular telephone communication
relating to crimes other than those specified in the order of
authorization to obtain a search or arrest warrant entitles the
person named in the warrant to notice of the intercepted wire,
electronic digital pager, or electronic cellular telephone
communication and a copy of the contents thereof that were used to
obtain the warrant.
SEC. 132. Section 830.3 of the Penal Code is amended to read:
830.3. The following persons are peace officers whose authority
extends to any place in the state for the purpose of performing their
primary duty or when making an arrest pursuant to Section 836 of the
Penal Code as to any public offense with respect to which there is
immediate danger to person or property, or of the escape of the
perpetrator of that offense, or pursuant to Section 8597 or 8598 of
the Government Code. These peace officers may carry firearms only if
authorized and under those terms and conditions as specified by
their employing agencies:
(a) Persons employed by the Division of Investigation of the
Department of Consumer Affairs and investigators of the Medical Board
of California and the Board of Dental Examiners, who are designated
by the Director of Consumer Affairs, provided that the primary duty
of these peace officers shall be the enforcement of the law as that
duty is set forth in Section 160 of the Business and Professions
Code. The Director of Consumer Affairs shall designate as peace
officers seven persons who shall at the time of their designation be
assigned to the investigations unit of the Board of Dental Examiners.
(b) Voluntary fire wardens designated by the Director of Forestry
and Fire Protection pursuant to Section 4156 of the Public Resources
Code, provided that the primary duty of these peace officers shall be
the enforcement of the law as that duty is set forth in Section 4156
of that code.
(c) Employees of the Department of Motor Vehicles designated in
Section 1655 of the Vehicle Code, provided that the primary duty of
these peace officers shall be the enforcement of the law as that duty
is set forth in Section 1655 of that code.
(d) Investigators of the California Horse Racing Board designated
by the board, provided that the primary duty of these peace officers
shall be the enforcement of Chapter 4 (commencing with Section 19400)
of Division 8 of the Business and Professions Code and Chapter 10
(commencing with Section 330) of Title 9 of Part 1 of this code.
(e) The State Fire Marshal and assistant or deputy state fire
marshals appointed pursuant to Section 13103 of the Health and Safety
Code, provided that the primary duty of these peace officers shall
be the enforcement of the law as that duty is set forth in Section
13104 of that code.
(f) Inspectors of the food and drug section designated by the
chief pursuant to subdivision (a) of Section 106500 of the Health and
Safety Code, provided that the primary duty of these peace officers
shall be the enforcement of the law as that duty is set forth in
Section 106500 of that code.
(g) All investigators of the Division of Labor Standards
Enforcement designated by the Labor Commissioner, provided that the
primary duty of these peace officers shall be the enforcement of the
law as prescribed in Section 95 of the Labor Code.
(h) All investigators of the State Departments of Health Services,
Social Services, Mental Health, Developmental Services, and Alcohol
and Drug Programs, the Department of Toxic Substances Control, the
Office of Statewide Health Planning and Development, and the Public
Employees' Retirement System, provided that the primary duty of these
peace officers shall be the enforcement of the law relating to the
duties of his or her department, or office. Notwithstanding any
other provision of law, investigators of the Public Employees'
Retirement System shall not carry firearms.
(i) The Chief of the Bureau of Fraudulent Claims of the Department
of Insurance and those investigators designated by the chief,
provided that the primary duty of those investigators shall be the
enforcement of Section 550.
(j) Employees of the Department of Housing and Community
Development designated under Section 18023 of the Health and Safety
Code, provided that the primary duty of these peace officers shall be
the enforcement of the law as that duty is set forth in Section
18023 of that code.
(k) Investigators of the office of the Controller, provided that
the primary duty of these investigators shall be the enforcement of
the law relating to the duties of that office. Notwithstanding any
other law, except as authorized by the Controller, the peace officers
designated pursuant to this subdivision shall not carry firearms.
(l) Investigators of the Department of Corporations designated by
the Commissioner of Corporations, provided that the primary duty of
these investigators shall be the enforcement of the provisions of law
administered by the Department of Corporations. Notwithstanding any
other provision of law, the peace officers designated pursuant to
this subdivision shall not carry firearms.
(m) Persons employed by the Contractors' State License Board
designated by the Director of Consumer Affairs pursuant to Section
7011.5 of the Business and Professions Code, provided that the
primary duty of these persons shall be the enforcement of the law as
that duty is set forth in Section 7011.5, and in Chapter 9
(commencing with Section 7000) of Division 3, of that code. The
Director of Consumer Affairs may designate as peace officers not more
than three persons who shall at the time of their designation be
assigned to the special investigations unit of the board.
Notwithstanding any other provision of law, the persons designated
pursuant to this subdivision shall not carry firearms.
(n) The chief and coordinators of the Law Enforcement Division of
the Office of Emergency Services.
(o) Investigators of the office of the Secretary of State
designated by the Secretary of State, provided that the primary duty
of these peace officers shall be the enforcement of the law as
prescribed in Chapter 3 (commencing with Section 8200) of Division 1
of Title 2 of, and Section 12172.5 of, the Government Code.
Notwithstanding any other provision of law, the peace officers
designated pursuant to this subdivision shall not carry firearms.
(p) The Deputy Director for Security designated by Section 8880.38
of the Government Code, and all lottery security personnel assigned
to the California State Lottery and designated by the director,
provided that the primary duty of any of those peace officers shall
be the enforcement of the laws related to assuring the integrity,
honesty, and fairness of the operation and administration of the
California State Lottery.
(q) Investigators employed by the Investigation Division of the
Employment Development Department designated by the director of the
department, provided that the primary duty of those peace officers
shall be the enforcement of the law as that duty is set forth in
Section 317 of the Unemployment Insurance Code.
Notwithstanding any other provision of law, the peace officers
designated pursuant to this subdivision shall not carry firearms.
(r) The chief and assistant chief of museum security and safety of
the California Science Center, as designated by the executive
director pursuant to Section 4108 of the Food and Agricultural Code,
provided that the primary duty of those peace officers shall be the
enforcement of the law as that duty is set forth in Section 4108 of
the Food and Agricultural Code.
(s) Employees of the Franchise Tax Board designated by the board,
provided that the primary duty of these peace officers shall be the
enforcement of the law as set forth in Chapter 9 (commencing with
Section 19701) of Part 10.2 of Division 2 of the Revenue and Taxation
Code.
(t) Notwithstanding any other provision of this section, a peace
officer authorized by this section shall not be authorized to carry
firearms by his or her employing agency until that agency has adopted
a policy on the use of deadly force by those peace officers, and
until those peace officers have been instructed in the employing
agency's policy on the use of deadly force.
Every peace officer authorized pursuant to this section to carry
firearms by his or her employing agency shall qualify in the use of
the firearms at least every six months.
SEC. 133. Section 1054.2 of the Penal Code is amended to read:
1054.2. (a) (1) Except as provided in paragraph (2), no attorney
may disclose or permit to be disclosed to a defendant, members of the
defendant's family, or anyone else, the address or telephone number
of a victim or witness whose name is disclosed to the attorney
pursuant to subdivision (a) of Section 1054.1, unless specifically
permitted to do so by the court after a hearing and a showing of good
cause.
(2) Notwithstanding paragraph (1), an attorney may disclose or
permit to be disclosed the address or telephone number of a victim or
witness to persons employed by the attorney or to persons appointed
by the court to assist in the preparation of a defendant's case if
that disclosure is required for that preparation. Persons provided
this information by an attorney shall be informed by the attorney
that further dissemination of the information, except as provided by
this section, is prohibited.
(3) Willful violation of this subdivision by an attorney, persons
employed by the attorney, or persons appointed by the court is a
misdemeanor.
(b) If the defendant is acting as his or her own attorney, the
court shall endeavor to protect the address and telephone number of a
victim or witness by providing for contact only through a private
investigator licensed by the Department of Consumer Affairs and
appointed by the court or by imposing other reasonable restrictions,
absent a showing of good cause as determined by the court.
SEC. 134. Section 1203.1d of the Penal Code is amended to read:
1203.1d. In determining the amount and manner of disbursement
under an order made pursuant to this code requiring a defendant to
make reparation or restitution to a victim of a crime, to pay any
money as reimbursement for legal assistance provided by the court, to
pay any cost of probation or probation investigation, to pay any
cost of jail or other confinement, or to pay any other reimbursable
costs, the court, after determining the amount of any fine and
penalty assessments, and a county financial evaluation officer when
making a financial evaluation, shall first determine the amount of
restitution to be ordered paid to any victim, and shall then
determine the amount of the other reimbursable costs.
If payment is made in full, the payment shall be apportioned and
disbursed in the amounts ordered by the court.
If reasonable and compatible with the defendant's financial
ability, the court may order payments to be made in installments.
With respect to installment payments and amounts collected by the
Franchise Tax Board pursuant to Section 19280 of the Revenue and
Taxation Code, the board of supervisors may establish the priorities
of payment, first between fines, penalty assessments, and reparation
or restitution, and then between other reimbursable costs. The board
of supervisors may also establish priorities of payment between
orders or parts of orders in cases where defendants have been ordered
to pay more than one court order.
Documentary evidence, such as bills, receipts, repair estimates,
insurance payment statements, payroll stubs, business records, and
similar documents relevant to the value of the stolen or damaged
property, medical expenses, and wages and profits lost shall not be
excluded as hearsay evidence.
SEC. 135. Section 11167.5 of the Penal Code is amended to read:
11167.5. (a) The reports required by Sections 11166 and 11166.2
shall be confidential and may be disclosed only as provided in
subdivision (b). Any violation of the confidentiality provided by
this article is a misdemeanor punishable by imprisonment in a county
jail not to exceed six months, by a fine of five hundred dollars
($500), or by both that imprisonment and fine.
(b) Reports of suspected child abuse and information contained
therein may be disclosed only to the following:
(1) Persons or agencies to whom disclosure of the identity of the
reporting party is permitted under Section 11167.
(2) Persons or agencies to whom disclosure of information is
permitted under subdivision (b) of Section 11170.
(3) Persons or agencies with whom investigations of child abuse
are coordinated under the regulations promulgated under Section
11174.
(4) Multidisciplinary personnel teams as defined in subdivision
(d) of Section 18951 of the Welfare and Institutions Code.
(5) Persons or agencies responsible for the licensing of
facilities which care for children, as specified in Section 11165.7.
(6) The State Department of Social Services or any county
licensing agency which has contracted with the state, as specified in
paragraph (3) of subdivision (b) of Section 11170, when an
individual has applied for a community care license or child day care
license, or for employment in an out-of-home care facility, or when
a complaint alleges child abuse by an operator or employee of an
out-of-home care facility.
(7) Hospital scan teams. As used in this paragraph, "hospital
scan team" means a team of three or more persons established by a
hospital, or two or more hospitals in the same county, consisting of
health care professionals and representatives of law enforcement and
child protective services, the members of which are engaged in the
identification of child abuse. The disclosure authorized by this
section includes disclosure among all hospital scan teams.
(8) Coroners and medical examiners when conducting a postmortem
examination of a child.
(9) The Board of Prison Terms, who may subpoena an employee of a
county welfare department who can provide relevant evidence and
reports that both (A) are not unfounded, pursuant to Section
11165.12, and (B) concern only the current incidents upon which
parole revocation proceedings are pending against a parolee charged
with child abuse. The reports and information shall be confidential
pursuant to subdivision (d) of Section 11167.
(10) Personnel from a child protective agency responsible for
making a placement of a child pursuant to Section 361.3 of, and
Article 7 (commencing with Section 305) of Chapter 2 of Part 1 of
Division 2 of, the Welfare and Institutions Code.
(11) Persons who have been identified by the Department of Justice
as listed in the Child Abuse Central Index pursuant to subdivision
(c) of Section 11170. Nothing in this paragraph shall preclude a
submitting agency prior to disclosure from redacting the name,
address, and telephone number of a witness, person who reports under
this article, or victim in order to maintain confidentiality as
required by law.
(12) Out-of-state law enforcement agencies conducting an
investigation of child abuse only when an agency makes the request
for reports of suspected child abuse in writing and on official
letterhead, identifying the suspected abuser or victim by name. The
request shall be signed by the department supervisor of the
requesting law enforcement agency. The written request shall cite
the out-of-state statute or interstate compact provision that
requires that the information contained within these reports is to be
disclosed only to law enforcement, prosecutorial entities, or
multidisciplinary investigative teams, and shall cite the criminal
penalties for unlawful disclosure provided by the requesting state or
the applicable interstate compact provision. In the absence of both
(1) a specific out-of-state statute or interstate compact provision
that requires that the information contained within these reports be
disclosed only to law enforcement, prosecutorial entities, or
multidisciplinary investigative teams, and (2) criminal penalties
equivalent to the penalties in California for unlawful disclosure,
access shall be denied.
(13) Persons who have verified with the Department of Justice that
they are listed in the Child Abuse Central Index as provided by
subdivision (e) of Section 11170. Disclosure under this section
shall be subject to the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code). Nothing in this section prohibits a submitting
agency prior to disclosure from redacting the name, address, and
telephone number of a witness, person who reports under this article,
or victim to maintain confidentiality as required by law.
(14) Each chairperson of a county child death review team, or his
or her designee, to whom disclosure of information is permitted under
this article, relating to the death of one or more children and any
prior child abuse investigation reports maintained involving the same
victim, siblings, or suspects. Local child death review teams may
share any relevant information regarding case reviews involving child
death with other child death review teams.
(c) Authorized persons within county health departments shall be
permitted to receive copies of any reports made by health
practitioners, as defined in Section 11165.8, pursuant to Section
11165.13, and copies of assessments completed pursuant to Sections
123600 and 123605 of the Health and Safety Code, to the extent
permitted by federal law. Any information received pursuant to this
subdivision is protected by subdivision (e).
(d) Nothing in this section requires the Department of Justice to
disclose information contained in records maintained under Section
11169 or under the regulations promulgated pursuant to Section 11174,
except as otherwise provided in this article.
(e) This section shall not be interpreted to allow disclosure of
any reports or records relevant to the reports of child abuse if the
disclosure would be prohibited by any other provisions of state or
federal law applicable to the reports or records relevant to the
reports of child abuse.
SEC. 136. Section 13764 of the Penal Code is amended to read:
13764. By January 1, 2002, the Department of Justice, in
consultation with the appropriate law enforcement agency in the
participating county, shall prepare and submit to the Governor and
the Legislature a report evaluating the success of the pilot project.
Criteria to be considered for determining the success of the pilot
project shall include, but not be limited to, all of the following:
(a) Measurable increase in the number of illegal firearms
retrieved within the hot spot areas.
(b) Measurable decrease in the number of offenses committed using
illegal firearms.
(c) Measurable decrease in the overall crime rate within the hot
spot areas as compared to crime statistics for the same area prior to
the pilot project.
SEC. 137. Section 22050 of the Public Contract Code is amended to
read:
22050. (a) (1) In the case of an emergency, a public agency,
pursuant to a four-fifths vote of its governing body, may repair or
replace a public facility, take any directly related and immediate
action required by that emergency, and procure the necessary
equipment, services, and supplies for those purposes, without giving
notice for bids to let contracts.
(2) Before a governing body takes any action pursuant to paragraph
(1), it shall make a finding, based on substantial evidence set
forth in the minutes of its meeting, that the emergency will not
permit a delay resulting from a competitive solicitation for bids,
and that the action is necessary to respond to the emergency.
(b) (1) The governing body, by a four-fifths vote, may delegate,
by resolution or ordinance, to the appropriate county administrative
officer, city manager, chief engineer, or other nonelected agency
officer, the authority to order any action pursuant to paragraph (1)
of subdivision (a).
(2) If the public agency has no county administrative officer,
city manager, chief engineer, or other nonelected agency officer, the
governing body, by a four-fifths vote, may delegate to an elected
officer the authority to order any action specified in paragraph (1)
of subdivision (a).
(3) If a person with authority delegated pursuant to paragraph (1)
or (2) orders any action specified in paragraph (1) of subdivision
(a), that person shall report to the governing body, at its next
meeting required pursuant to this section, the reasons justifying why
the emergency will not permit a delay resulting from a competitive
solicitation for bids and why the action is necessary to respond to
the emergency.
(c) (1) If the governing body orders any action specified in
subdivision (a), the governing body shall review the emergency action
at its next regularly scheduled meeting and, except as specified
below, at every regularly scheduled meeting thereafter until the
action is terminated, to determine, by a four-fifths vote, that there
is a need to continue the action. If the governing body meets
weekly, it may review the emergency action in accordance with this
paragraph every 14 days.
(2) If a person with authority delegated pursuant to subdivision
(b) orders any action specified in paragraph (1) of subdivision (a),
the governing body shall initially review the emergency action not
later than seven days after the action, or at its next regularly
scheduled meeting if that meeting will occur not later than 14 days
after the action, and at least at every regularly scheduled meeting
thereafter until the action is terminated, to determine, by a
four-fifths vote, that there is a need to continue the action, unless
a person with authority delegated pursuant to subdivision (b) has
terminated that action prior to the governing body reviewing the
emergency action and making a determination pursuant to this
subdivision. If the governing body meets weekly, it may, after the
initial review, review the emergency action in accordance with this
paragraph every 14 days.
(3) When the governing body reviews the emergency action pursuant
to paragraph (1) or (2), it shall terminate the action at the
earliest possible date that conditions warrant so that the remainder
of the emergency action may be completed by giving notice for bids to
let contracts.
(d) As used in this section, "public agency" has the same meaning
as defined in Section 22002.
(e) A three-member governing body may take actions pursuant to
subdivision (a), (b), or (c) by a two-thirds vote.
(f) This section applies only to emergency action taken pursuant
to Sections 20133, 20134, 20168, 20193, 20205.1, 20213, 20223, 20233,
20253, 20273, 20283, 20293, 20303, 20313, 20331, 20567, 20586,
20604, 20635, 20645, 20685, 20736, 20751.1, 20806, 20812, 20914,
20918, 20926, 20931, 20941, 20961, 20991, 21020.2, 21024, 21031,
21043, 21061, 21072, 21081, 21091, 21101, 21111, 21121, 21131, 21141,
21151, 21161, 21171, 21181, 21191, 21196, 21203, 21212, 21221,
21231, 21241, 21251, 21261, 21271, 21290, 21311, 21321, 21331, 21341,
21351, 21361, 21371, 21381, 21391, 21401, 21411, 21421, 21431,
21441, 21451, 21461, 21472, 21482, 21491, 21501, 21511, 21521, 21531,
21541, 21552, 21567, 21572, 21581, 21591, 21601, 21618, 21624,
21631, 21641, and 22035.
SEC. 138. Section 6353 of the Public Utilities Code is amended to
read:
6353. For purpose of calculating the surcharge required in
Section 6352, the energy transporter shall do all of the following:
(a) For each transportation customer, determine the volume of
transported gas or electricity, in therms or kilowatt hours
respectively, subject to the surcharge.
(b) Determine the weighted average cost of the energy transporter'
s gas or electricity. For gas, the energy transporter shall use its
tariffed core subscription weighted average cost of gas (WACOG)
exclusive of any California sourced franchise fee factor. For
electricity, the energy transporter shall use that portion of the
otherwise applicable utility rate or charge which, pursuant to
commissioner order, is removed from the bill of a retail electric
customer who has elected direct access to reflect the fact that the
customer is purchasing energy from a nonutility provider exclusive of
any California sourced franchise fee factor. For an energy
transporter that does not provide gas or electricity at a commission
tariffed rate, the energy transporter shall use the equivalent
tariffed rate of the commission regulated energy transporter
operating in the same service area.
(c) Determine a product for each transportation customer by
multiplying the volume determined pursuant to subdivision (a) by the
weighted average cost determined pursuant to subdivision (b).
(d) Determine the surcharge applicable to each transportation
customer by multiplying the product determined pursuant to
subdivision (c) by the sum of the franchise fee factor plus any
franchise fee surcharge authorized for the energy transporter as
approved by the commission in the energy transporter's most recent
proceeding in which those factors and surcharges were set. An energy
transporter not regulated by the commission shall multiply the
product determined in subdivision (c) by the franchise fee rate
contained in its individual franchise agreement in effect in each
municipality.
(e) The surcharge assessed pursuant to this chapter only applies
to the end use point.
SEC. 139. Section 130051.18 of the Public Utilities Code is
amended to read:
130051.18. Prior to the approval of any contract by the Los
Angeles County Metropolitan Transportation Authority, or by any
organizational unit of the authority, the authority shall adopt and
implement an ordinance for the regulation of lobbying that shall
include, at a minimum, the provisions of this section.
(a) For purposes of this section, the following terms are defined
as follows:
(1) "Activity expense" means any expense incurred, or payment
made, by a lobbyist, lobbying firm, or lobbyist employer, or arranged
by a lobbyist, lobbying firm, or lobbyist employer, that benefits in
whole or in part any authority official or a member of the immediate
family of an authority official.
(2) "Administrative testimony" means influencing or attempting to
influence authority action undertaken by any person or entity who
does not seek to enter into a contract or other arrangement with the
authority by acting as counsel in, appearing as a witness in, or
providing written submissions, including answers to inquiries, which
become a part of the record of, any proceeding of the authority that
is conducted as an open public hearing for which public notice is
given.
(3) "Authority" means the Los Angeles County Metropolitan
Transportation Authority and all of its organizational units as
defined by Section 130051.11.
(4) "Authority action" means the drafting, introduction,
consideration, modification, enactment, or defeat of an ordinance,
resolution, contract, or report by the governing board of an
organizational unit of the authority, or by an authority official,
including any action taken, or required to be taken, by a vote of the
members of the authority or by the members of the governing board of
an organizational unit of the authority, except those actions
relating to Article 10 (commencing with Section 30750) of Chapter 5
of Part 3 of Division 10.
(5) "Authority official" means any member of the authority, member
of an organizational unit of the authority, or employee of the
authority.
(6) "Contribution" means a payment, a forgiveness of a loan, a
payment of a loan by a third party, or an enforceable promise to make
a payment, except to the extent that full and adequate consideration
is received, unless it is clear from the surrounding circumstances
that it is not made for political purposes.
An expenditure made at the behest of a candidate, committee, or
elected officer is a contribution to the candidate, committee, or
elected officer unless full and adequate consideration is received
for making the expenditure.
"Contribution" also includes the purchase of tickets for events
such as dinners, luncheons, rallies, and similar fundraising events;
the candidate's own money or property used on behalf of his or her
candidacy; the granting of discounts or rebates not extended to the
public generally or the granting of discounts or rebates by
television and radio stations and newspapers not extended on an equal
basis to all candidates for the same office; the payment of
compensation by any person for the personal services or expenses of
any other person if those services are rendered or expenses are
incurred on behalf of a candidate or committee without payment of
full and adequate consideration.
"Contribution" also includes any transfer of anything of value
received by a committee from another committee, unless full and
adequate consideration is received.
"Contribution" does not include amounts received pursuant to an
enforceable promise to the extent that those amounts have been
previously reported as a contribution. However, the fact that those
amounts have been received shall be indicated in the appropriate
campaign statement.
"Contribution" does not include a payment made by an occupant of a
home or office for costs related to any meeting or fundraising event
held in the occupant's home or office if the costs for the meeting
or fundraising event are five hundred dollars ($500) or less.
"Contribution" does not include volunteer personal services or
payments made by any individual for his or her own travel expenses if
those payments are made voluntarily without any understanding or
agreement that they shall be, directly or indirectly, repaid to him
or her.
(7) "Employee of the authority" means anyone who receives
compensation from the authority for full-time or part-time
employment, and any contractor, subcontractor, consultant, expert, or
adviser acting on behalf of, or providing advice to, the authority.
(8) "Filing officer" means the individual designated by the
authority with whom statements and reports required by this section
shall be filed.
(9) "Lobbying" means influencing or attempting to influence
authority action through direct or indirect communication, other than
administrative testimony, with an authority official.
(10) "Lobbying firm" means any business entity, including an
individual lobbyist, that meets either of the following criteria:
(A) The business entity receives or becomes entitled to receive
any compensation, other than reimbursement for reasonable travel
expenses, for the purpose of influencing authority action on behalf
of any other person, if any partner, owner, officer, or employee
of the business entity is a
lobbyist.
(B) The business entity receives or becomes entitled to receive
any compensation, other than reimbursement for reasonable travel
expenses, to communicate directly with any agency official for the
purpose of influencing authority action on behalf of any other
person, if a substantial or regular portion of the activities for
which the business entity receives compensation is for the purpose of
influencing authority action.
(11) "Lobbyist" means any individual who receives any economic
consideration, other than reimbursement for reasonable travel
expenses, for lobbying, including consultants and officers or
employees of any business entity seeking to enter into a contract
with the authority.
(12) "Lobbyist employer" means any person, other than a lobbying
firm, who does either of the following:
(A) Employs one or more lobbyists for the purpose of influencing
authority action.
(B) Contracts for the services of a lobbying firm for economic
consideration for the purpose of influencing authority action.
(b) (1) Lobbyists, lobbying firms, and lobbyist employers shall
register with the filing officer within 10 days after qualifying as a
lobbyist, lobbying firm, or lobbyist employer. Registration shall
be completed prior to the commencement of lobbying by the lobbyist.
Registration shall include the filing of a registration statement,
and the payment of any fees authorized by this section. Registration
shall be renewed annually by the filing of a new registration
statement and the payment of a fee.
(2) Each lobbyist, lobbying firm, and lobbyist employer required
to register under this section may be charged a fee by the authority
in an amount necessary to pay the direct costs of implementing this
section.
(3) The lobbyist registration statement shall include all of the
following:
(A) The name, address, and telephone number of the lobbyist.
(B) For each person from whom the lobbyist receives compensation
to provide lobbying services, all of the following:
(i) The full name, business address, and telephone number of the
person.
(ii) A written authorization signed by the person.
(iii) The time period of the contract or employment agreement.
(iv) The lobbying interests of the person.
(C) A statement signed by the lobbyist certifying that he or she
has read and understands the prohibitions contained in subdivisions
(f) and (g).
(4) The registration statement of a lobbying firm shall include
all of the following:
(A) The full name, business address, and telephone number of the
lobbying firm.
(B) A list of the lobbyists who are partners, owners, officers, or
employees of the lobbying firm.
(C) For each person with whom the lobbying firm contracts to
provide lobbying services, all of the following:
(i) The full name, business address, and telephone number of the
person.
(ii) A written authorization signed by the person.
(iii) The time period of the contract.
(iv) Information sufficient to identify the lobbying interests of
the person.
(D) A statement signed by the designated responsible person that
he or she has read and understands the prohibitions contained in
subdivisions (f) and (g).
(5) The registration statement of a lobbyist employer shall
include all of the following:
(A) The full name, business address, and telephone number of the
lobbyist employer.
(B) A list of the lobbyists who are employed by the lobbyist
employer.
(C) The lobbying interests of the lobbyist employer, including
identification of specific contracts or authority actions.
(D) A statement signed by the designated responsible person that
he or she has read and understands the prohibitions contained in
subdivisions (f) and (g).
(6) (A) The registration statement may be amended within 10 days
of a change in the information included in the statement. However,
if the change includes the name of a person by whom a lobbyist is
retained, the registration statement shall be amended to show that
change prior to the commencement of lobbying by the lobbying firm or
the lobbyist.
(B) Lobbying firms and lobbyist employers upon ceasing all
lobbying activity that required registration shall file a notice of
termination within 30 days after the cessation.
(C) Lobbyists and lobbyist firms are subject to subdivisions (f)
and (g) for 12 months after filing a notice of termination.
(c) Lobbyists, lobbying firms, and lobbyist employers that receive
payments, make payments, or incur expenses, or expect to receive
payments, make payments, or incur expenses, in connection with
activities that are reportable pursuant to this section shall keep
detailed accounts, records, bills, and receipts for four years, and
shall make them reasonably available for inspection for the purposes
of auditing for compliance with, or enforcement of, this section.
(d) When a person is required to report activity expenses pursuant
to this section, all of the following information shall be provided:
(1) The date and amount of each activity expense.
(2) The full name and official position, if any, of the
beneficiary of each expense, a description of the benefit, and the
amount of the benefit.
(3) The full name of the payee of each expense if other than the
beneficiary.
(e) (1) A lobbying firm shall file a periodic report containing
all of the following:
(A) The full name, address, and telephone number of the lobbying
firm.
(B) The full name, business address, and telephone number of each
person who contracted with the lobbying firm for lobbying services, a
description of the specific lobbying interests of the person, and
the total payments, including fees and the reimbursement of expenses,
received from the person for lobbying services during the reporting
period.
(C) A copy of the periodic report completed and verified by each
lobbyist in the lobbying firm pursuant to paragraph (2).
(D) Each activity expense incurred by the lobbying firm, including
those reimbursed by a person who contracts with the lobbying firm
for lobbying services.
(E) The date, amount, and the name of the recipient of any
contribution of one hundred dollars ($100) or more made by the filer
to an authority official.
(2) A lobbyist shall complete and verify a periodic report, and
file his or her report with the filing officer, and a copy of the
report with his or her lobbying firm or lobbyist employer. The
periodic report shall contain all of the following:
(A) A report of all activity expenses by the lobbyist during the
reporting period.
(B) A report of all contributions of one hundred dollars ($100) or
more made or delivered by the lobbyist to any authority official
during the reporting period.
(3) A lobbyist employer shall file a periodic report containing
all of the following:
(A) The name, business address, and telephone number of the
lobbyist employer.
(B) The total amount of payments to each lobbying firm.
(C) The total amount of all payments to lobbyists employed by the
filer.
(D) A description of the specific lobbying interests of the filer.
(E) A periodic report, completed and verified by each lobbyist
employed by a lobbyist employer pursuant to paragraph (1) of
subdivision (e).
(F) Each activity expense of the filer and a total of all activity
expenses of the filer.
(G) The date, amount, and the name of the recipient of any
contribution of one hundred dollars ($100) or more made by the filer
to an authority official.
(H) The total of all other payments to influence authority action.
(4) (A) The periodic reports shall be filed within 30 days after
the end of each calendar quarter. The period covered shall be from
the beginning of the calendar year through the last day of the
calendar quarter prior to the 30-day period during which the report
is filed, except that the period covered by the first report a person
is required to file shall begin with the first day of the calendar
quarter in which the filer first registered or qualified.
(B) The original and one copy of each report shall be filed with
the filing officer, retained by the authority for a minimum of four
years, and available for inspection by the public during regular
working hours.
(f) (1) It is unlawful for a lobbyist, a lobbying firm, or a
lobbyist employer to make gifts to an authority official aggregating
more than ten dollars ($10) in a calendar month, to act as an agent
or intermediary in the making of any gift, or to arrange for the
making of any gift by any other person.
(2) It is unlawful for any authority official knowingly to receive
any gift that is made unlawful by this section. For the purposes of
this subdivision, "gift" has the same meaning as defined in Section
130051.17.
(g) No lobbyist or lobbying firm shall do any of the following:
(1) Do anything with the purpose of placing an authority official
under personal obligation to the lobbyist, the lobbying firm, or the
employer of the lobbyist or lobbying firm.
(2) Deceive or attempt to deceive any authority official with
regard to any material fact pertinent to any authority action.
(3) Cause or influence any authority action for the purpose of
thereafter being employed to secure its passage or defeat.
(4) Attempt to create a fictitious appearance of public favor or
disfavor of any authority action, or cause any communications to be
sent to any authority official in the name of any fictitious person
or in the name of any real person, except with the consent of that
real person.
(5) Represent falsely, either directly or indirectly, that the
lobbyist or the lobbying firm can control any authority official.
(6) Accept or agree to accept any payment that is contingent upon
the outcome of any authority action.
(h) Any person who knowingly or willfully violates any provision
of this section is guilty of a misdemeanor.
(i) The District Attorney of the County of Los Angeles is
responsible for the prosecution of violations of this section.
(j) Any person who violates any provision of this section is
liable in a civil action brought by the civil prosecutor or by a
person residing within the jurisdiction of the authority for an
amount up to five hundred dollars ($500), or three times the amount
of an unlawful gift or expenditure, whichever amount is greater.
(k) The authority shall reject any bid or other proposal to enter
into a contract with the authority by any person or entity that has
not complied with the registration and reporting requirements of this
section.
(l) The provisions of this section are not applicable to any of
the following:
(1) An elected public official who is acting in his or her
official capacity to influence authority action.
(2) Any newspaper or other periodical of general circulation, book
publisher, radio or television station that, in the ordinary course
of business, publishes or broadcasts news items, editorials, or other
documents, or paid advertisement, that directly or indirectly urges
authority action, if the newspaper, periodical, book publisher, radio
or television station engages in no further or other activities in
connection with urging authority action other than to appear before
the authority in support of, or in opposition to, the authority
action.
(m) No former authority official shall become a lobbyist for a
period of one year after leaving the authority.
SEC. 140. Section 69.5 of the Revenue and Taxation Code is amended
to read:
69.5. (a) (1) Notwithstanding any other provision of law,
pursuant to subdivision (a) of Section 2 of Article XIIIA of the
California Constitution, any person over the age of 55 years, or any
severely and permanently disabled person, who resides in property
that is eligible for the homeowner's exemption under subdivision (k)
of Section 3 of Article XIII of the California Constitution and
Section 218 may transfer, subject to the conditions and limitations
provided in this section, the base year value of that property to any
replacement dwelling of equal or lesser value that is located within
the same county and is purchased or newly constructed by that person
as his or her principal residence within two years of the sale by
that person of the original property, provided that the base year
value of the original property shall not be transferred to the
replacement dwelling until the original property is sold.
(2) Notwithstanding the limitation in paragraph (1) requiring that
the original property and the replacement dwelling be located in the
same county, this limitation shall not apply in any county in which
the county board of supervisors, after consultation with local
affected agencies within the boundaries of the county, adopts an
ordinance making the provisions of paragraph (1) also applicable to
situations in which replacement dwellings are located in that county
and the original properties are located in another county within this
state. The authorization contained in this paragraph shall be
applicable in a county only if the ordinance adopted by the board of
supervisors complies with all of the following requirements:
(A) It is adopted only after consultation between the board of
supervisors and all other local affected agencies within the county's
boundaries.
(B) It requires that all claims for transfers of base year value
from original property located in another county be granted if the
claims meet the applicable requirements of both subdivision (a) of
Section 2 of Article XIIIA of the California Constitution and this
section.
(C) It requires that all base year valuations of original property
located in another county and determined by its assessor be accepted
in connection with the granting of claims for transfers of base year
value.
(D) The ordinance provides that its provisions shall remain
operative for a period of not less than five years.
(E) The ordinance specifies the date on and after which its
provisions shall be applicable. However, the date specified shall
not be earlier than November 9, 1988. The specified applicable date
may be a date earlier than the date the county adopts the ordinance.
(b) In addition to meeting the requirements of subdivision (a),
any person claiming the property tax relief provided by this section
shall be eligible for that relief only if the following conditions
are met:
(1) The claimant is an owner and a resident of the original
property either at the time of its sale or within two years of the
purchase or new construction of the replacement dwelling.
(2) The original property is eligible for the homeowner's
exemption, as the result of the claimant's ownership and occupation
of the property as his or her principal residence, either at the time
of its sale or within two years of the purchase or new construction
of the replacement dwelling.
(3) At the time of the sale of the original property, the claimant
or the claimant's spouse who resides with the claimant is at least
55 years of age, or is severely and permanently disabled.
(4) At the time of claiming the property tax relief provided by
subdivision (a), the claimant is an owner of a replacement dwelling
and occupies it as his or her principal place of residence and, as a
result thereof, the property is currently eligible for the homeowner'
s exemption or would be eligible for the exemption except that the
property is already receiving the exemption because of an exemption
claim filed by the previous owner.
(5) The original property of the claimant is sold by him or her
within two years of the purchase or new construction of the
replacement dwelling. For purposes of this paragraph, the purchase
or new construction of the replacement dwelling includes the purchase
of that portion of land on which the replacement building,
structure, or other shelter constituting a place of abode of the
claimant will be situated and that, pursuant to paragraph (3) of
subdivision (g), constitutes a part of the replacement dwelling.
(6) The replacement dwelling, including that portion of land on
which it is situated that is specified in paragraph (5), is located
entirely within the same county as the claimant's original property.
(7) The claimant has not previously been granted, as a claimant,
the property tax relief provided by this section, except that this
paragraph shall not apply to any person who becomes severely and
permanently disabled subsequent to being granted, as a claimant, the
property tax relief provided by this section for any person over the
age of 55 years. In order to prevent duplication of claims under
this section within this state, county assessors shall report
quarterly to the State Board of Equalization that information from
claims filed in accordance with subdivision (f) and from county
records as is specified by the board necessary to identify fully all
claims under this section allowed by assessors and all claimants who
have thereby received relief. The board may specify that the
information include all or a part of the names and social security
numbers of claimants and their spouses and the identity and location
of the replacement dwelling to which the claim applies. The
information may be required in the form of data processing media or
other media and in a format that is compatible with the recordkeeping
processes of the counties and the auditing procedures of the state.
(c) The property tax relief provided by this section shall be
available if the original property or the replacement dwelling, or
both, of the claimant, includes, but is not limited to, either of the
following:
(1) A unit or lot within a cooperative housing corporation, a
community apartment project, a condominium project, or a planned unit
development. If the unit or lot constitutes the original property
of the claimant, the assessor shall transfer to the claimant's
replacement dwelling only the base year value of the claimant's unit
or lot and his or her share in any common area reserved as an
appurtenance of that unit or lot. If the unit or lot constitutes the
replacement dwelling of the claimant, the assessor shall transfer
the base year value of the claimant's original property only to the
unit or lot of the claimant and any share of the claimant in any
common area reserved as an appurtenance of that unit or lot.
(2) A mobilehome or a mobilehome and any land owned by the
claimant on which the mobilehome is situated. If the mobilehome or
the mobilehome and the land on which it is situated constitutes the
claimant's original property, the assessor shall transfer to the
claimant's replacement dwelling either the base year value of the
mobilehome or the base year value of the mobilehome and the land on
which it is situated, as appropriate. No transfer of base year value
shall be made by the assessor of that portion of land that does not
constitute a part of the original property, as provided in paragraph
(4) of subdivision (g). If the mobilehome or the mobilehome and the
land on which it is situated constitutes the claimant's replacement
dwelling, the assessor shall transfer the base year value of the
claimant's original property either to the mobilehome or the
mobilehome and the land on which it is situated, as appropriate. No
transfer of base year value shall be made by the assessor to that
portion of land that does not constitute a part of the replacement
dwelling, as provided in paragraph (3) of subdivision (g).
This subdivision shall be subject to the limitations specified in
subdivision (d).
(d) The property tax relief provided by this section shall be
available to a claimant who is the coowner of original property, as a
joint tenant, a tenant in common, or a community property owner,
subject to the following limitations:
(1) If a single replacement dwelling is purchased or newly
constructed by all of the coowners and each coowner retains an
interest in the replacement dwelling, the claimant shall be eligible
under this section whether or not any or all of the remaining
coowners would otherwise be eligible claimants.
(2) If two or more replacement dwellings are separately purchased
or newly constructed by two or more coowners and more than one
coowner would otherwise be an eligible claimant, only one coowner
shall be eligible under this section. These coowners shall determine
by mutual agreement which one of them shall be deemed eligible.
(3) If two or more replacement dwellings are separately purchased
or newly constructed by two coowners who held the original property
as community property, only the coowner who has attained the age of
55 years, or is severely and permanently disabled, shall be eligible
under this section. If both spouses are over 55 years of age, they
shall determine by mutual agreement which one of them is eligible.
In the case of coowners whose original property is a multiunit
dwelling, the limitations imposed by paragraphs (2) and (3) shall
only apply to coowners who occupied the same dwelling unit within the
original property at the time specified in paragraph (2) of
subdivision (b).
(e) Upon the sale of original property, the assessor shall
determine a new base year value for that property in accordance with
subdivision (a) of Section 2 of Article XIIIA of the California
Constitution and Section 110.1, whether or not a replacement dwelling
is subsequently purchased or newly constructed by the former owner
or owners of the original property.
This section shall not apply unless the transfer of the original
property is a change in ownership that either (1) subjects that
property to reappraisal at its current fair market value in
accordance with Section 110.1 or 5803 or (2) results in a base year
value determined in accordance with this section, Section 69, or
Section 69.3 because the property qualifies under this section,
Section 69, or Section 69.3 as a replacement dwelling or property.
(f) A claimant shall not be eligible for the property tax relief
provided by this section unless the claimant provides to the
assessor, on a form that the assessor shall make available upon
request, the following information:
(1) The name and social security number of each claimant and of
any spouse of the claimant who was a record owner of the original
property at the time of its sale or is a record owner of the
replacement dwelling.
(2) Proof that the claimant or the claimant's spouse who resided
on the original property with the claimant was, at the time of its
sale, at least 55 years of age, or severely and permanently disabled.
Proof of severe and permanent disability shall be considered a
certification, signed by a licensed physician and surgeon of
appropriate specialty, attesting to the claimant's severely and
permanently disabled condition. In the absence of available proof
that a person is over 55 years of age, the claimant shall certify
under penalty of perjury that the age requirement is met. In the
case of a severely and permanently disabled claimant either of the
following shall be submitted:
(A) A certification, signed by a licensed physician or surgeon of
appropriate specialty that identifies specific reasons why the
disability necessitates a move to the replacement dwelling and the
disability-related requirements, including any locational
requirements, of a replacement dwelling. The claimant shall
substantiate that the replacement dwelling meets disability-related
requirements so identified and that the primary reason for the move
to the replacement dwelling is to satisfy those requirements. If the
claimant, or the claimant's spouse or guardian, so declares under
penalty of perjury, it shall be rebuttably presumed that the primary
purpose of the move to the replacement dwelling is to satisfy
identified disability-related requirements.
(B) The claimant's substantiation that the primary purpose of the
move to the replacement dwelling is to alleviate financial burdens
caused by the disability. If the claimant, or the claimant's spouse
or guardian, so declares under penalty of perjury, it shall be
rebuttably presumed that the primary purpose of the move is to
alleviate the financial burdens caused by the disability.
(3) The address and, if known, the assessor's parcel number of the
original property.
(4) The date of the claimant's sale of the original property and
the date of the claimant's purchase or new construction of a
replacement dwelling.
(5) A statement by the claimant that he or she occupied the
replacement dwelling as his or her principal place of residence on
the date of the filing of his or her claim.
The State Board of Equalization shall design the form for claiming
eligibility.
Any claim under this section shall be filed within three years of
the date the replacement dwelling was purchased or the new
construction of the replacement dwelling was completed.
(g) For purposes of this section:
(1) "Person over the age of 55 years" means any person or the
spouse of any person who has attained the age of 55 years or older at
the time of the sale of original property.
(2) "Base year value of the original property" means its base year
value, as determined in accordance with Section 110.1, with the
adjustments permitted by subdivision (b) of Section 2 of Article
XIIIA of the California Constitution and subdivision (f) of Section
110.1, determined as of the date immediately prior to the date that
the original property is sold by the claimant.
If the replacement dwelling is purchased or newly constructed
after the transfer of the original property, "base year value of the
original property" also includes any inflation factor adjustments
permitted by subdivision (f) of Section 110.1 for the period
subsequent to the sale of the original property. The base year or
years used to compute the "base year value of the original property"
shall be deemed to be the base year or years of any property to which
that base year value is transferred pursuant to this section.
(3) "Replacement dwelling" means a building, structure, or other
shelter constituting a place of abode, whether real property or
personal property, that is owned and occupied by a claimant as his or
her principal place of residence, and any land owned by the claimant
on which the building, structure, or other shelter is situated. For
purposes of this paragraph, land constituting a part of a
replacement dwelling includes only that area of reasonable size that
is used as a site for a residence, and "land owned by the claimant"
includes land for which the claimant either holds a leasehold
interest described in
subdivision (c) of Section 61 or a land purchase contract. Each
unit of a multiunit dwelling shall be considered a separate
replacement dwelling. For purposes of this paragraph, "area of
reasonable size that is used as a site for a residence" includes all
land if any nonresidential uses of the property are only incidental
to the use of the property as a residential site.
(4) "Original property" means a building, structure, or other
shelter constituting a place of abode, whether real property or
personal property, that is owned and occupied by a claimant as his or
her principal place of residence, and any land owned by the claimant
on which the building, structure, or other shelter is situated. For
purposes of this paragraph, land constituting a part of original
property includes only that area of reasonable size that is used as a
site for a residence, and "land owned by the claimant" includes land
for which the claimant either holds a leasehold interest described
in subdivision (c) of Section 61 or a land purchase contract. Each
unit of a multiunit dwelling shall be considered a separate original
property. For purposes of this paragraph, "area of reasonable size
that is used as a site for a residence" includes all land if any
nonresidential uses of the property are only incidental to the use of
the property as a residential site.
(5) "Equal or lesser value" means that the amount of the full cash
value of a replacement dwelling does not exceed one of the
following:
(A) One hundred percent of the amount of the full cash value of
the original property if the replacement dwelling is purchased or
newly constructed prior to the date of the sale of the original
property.
(B) One hundred and five percent of the amount of the full cash
value of the original property if the replacement dwelling is
purchased or newly constructed within the first year following the
date of the sale of the original property.
(C) One hundred and ten percent of the amount of the full cash
value of the original property if the replacement dwelling is
purchased or newly constructed within the second year following the
date of the sale of the original property.
For the purposes of this paragraph, except as otherwise provided
in paragraph (4) of subdivision (h), if the replacement dwelling is,
in part, purchased and, in part, newly constructed, the date the
"replacement dwelling is purchased or newly constructed" is the date
of purchase or the date of completion of construction, whichever is
later.
(6) "Full cash value of the replacement dwelling" means its full
cash value, determined in accordance with Section 110.1, as of the
date on which it was purchased or new construction was completed, and
after the purchase or the completion of new construction.
(7) "Full cash value of the original property" means its new base
year value, determined in accordance with subdivision (e), without
the application of subdivision (h) of Section 2 of Article XIIIA of
the California Constitution, plus the adjustments permitted by
subdivision (b) of Section 2 of Article XIIIA and subdivision (f) of
Section 110.1 for the period from the date of its sale by the
claimant to the date on which the replacement property was purchased
or new construction was completed.
(8) "Sale" means any change in ownership of the original property
for consideration.
(9) "Claimant" means any person claiming the property tax relief
provided by this section. If a spouse of that person is a record
owner of the replacement dwelling, the spouse is also a claimant for
purposes of determining whether in any future claim filed by the
spouse under this section the condition of eligibility specified in
paragraph (7) of subdivision (b) has been met.
(10) "Property that is eligible for the homeowner's exemption"
includes property that is the principal place of residence of its
owner and is entitled to exemption pursuant to Section 205.5.
(11) "Person" means any individual, but does not include any firm,
partnership, association, corporation, company, or other legal
entity or organization of any kind.
(12) "Severely and permanently disabled" means any person
described in subdivision (b) of Section 74.3.
(h) (1) Upon the timely filing of a claim, the assessor shall
adjust the new base year value of the replacement dwelling in
conformity with this section. This adjustment shall be made as of
the latest of the following dates:
(A) The date the original property is sold.
(B) The date the replacement dwelling is purchased.
(C) The date the new construction of the replacement dwelling is
completed.
(2) Any taxes that were levied on the replacement dwelling prior
to the filing of the claim on the basis of the replacement dwelling's
new base year value, and any allowable annual adjustments thereto,
shall be canceled or refunded to the claimant to the extent that the
taxes exceed the amount that would be due when determined on the
basis of the adjusted new base year value.
(3) Notwithstanding Section 75.10, Chapter 3.5 (commencing with
Section 75) shall be utilized for purposes of implementing this
subdivision, including adjustments of the new base year value of
replacement dwellings acquired prior to the sale of the original
property.
(4) In the case where a claim under this section has been timely
filed and granted, and new construction is performed upon the
replacement dwelling subsequent to the transfer of base year value,
the property tax relief provided by this section also shall apply to
the replacement dwelling, as improved, and thus there shall be no
reassessment upon completion of the new construction if both of the
following conditions are met:
(A) The new construction is completed within two years of the date
of the sale of the original property and the owner notifies the
assessor in writing of completion of the new construction within 30
days after completion.
(B) The fair market value of the new construction on the date of
completion, plus the full cash value of the replacement dwelling on
the date of acquisition, is not more than the full cash value of the
original property as determined pursuant to paragraph (7) of
subdivision (g) for purposes of granting the original claim.
(i) Any claimant may rescind a claim for the property tax relief
provided by this section and shall not be considered to have received
that relief for purposes of paragraph (7) of subdivision (b), if a
written notice of rescission is delivered to the office of the
assessor in which the original claim was filed and all of the
following have occurred:
(1) The notice is signed by the original filing claimant or
claimants.
(2) The notice is delivered to the office of the assessor before
the date that the county first issues, as a result of relief granted
under this section, a refund check for property taxes imposed upon
the replacement dwelling. If granting relief will not result in a
refund of property taxes, then the notice shall be delivered before
payment is first made of any property taxes, or any portion thereof,
imposed upon the replacement dwelling consistent with relief granted
under this section. If payment of the taxes is not made, then notice
shall be delivered before the first date that those property taxes,
or any portion thereof, imposed upon the replacement dwelling,
consistent with relief granted under this section, are delinquent.
(3) The notice is accompanied by the payment of a fee as the
assessor may require, provided that the fee shall not exceed an
amount reasonably related to the estimated cost of processing a
rescission claim, including both direct costs and developmental and
indirect costs, such as costs for overhead, personnel, supplies,
materials, office space, and computers.
(j) (1) With respect to the transfer of base year value of
original properties to replacement dwellings located in the same
county, this section, except as provided in paragraph (3) or (4),
shall apply to any replacement dwelling that is purchased or newly
constructed on or after November 6, 1986.
(2) With respect to the transfer of base year value of original
properties to replacement dwellings located in different counties,
except as provided in paragraph (4), this section shall apply to any
replacement dwelling that is purchased or newly constructed on or
after the date specified in accordance with subparagraph (E) of
paragraph (2) of subdivision (a) in the ordinance of the county in
which the replacement dwelling is located, but shall not apply to any
replacement dwelling which was purchased or newly constructed before
November 9, 1988.
(3) With respect to the transfer of base year value by a severely
and permanently disabled person, this section shall apply only to
replacement dwellings that are purchased or newly constructed on or
after June 6, 1990.
(4) The amendments made to subdivision (e) by the act adding this
paragraph shall apply only to replacement dwellings under Section 69
that are acquired or newly constructed on or after October 20, 1991,
and shall apply commencing with the 1991-92 fiscal year.
(k) This section shall become operative on January 1, 1999.
SEC. 141. Section 95.31 of the Revenue and Taxation Code is
amended to read:
95.31. (a) (1) Notwithstanding any other provision of law, any
eligible county may, upon the recommendation of the county assessor,
and by resolution of the board of supervisors of that county adopted
not later than December 1 of the fiscal year for which it is to first
apply, elect to participate in the State-County Property Tax
Administration Program.
(2) Except as specified in paragraph (3), for the purposes of this
section, an eligible county shall mean a county in which additional
property tax revenue allocated to school entities would reduce the
amount of General Fund moneys apportioned to school entities.
However, eligibility shall be terminated when, in combination with
resources in the Educational Revenue Augmentation Fund, additional
property tax revenues allocated to school entities will not result in
a reduction in the General Fund apportionments.
(3) Notwithstanding paragraph (2), both the County of Solano and
the County of San Benito shall be deemed eligible counties that may,
upon the recommendation of the county assessor, and by resolution of
the board of supervisors of the county adopted on or before March 31,
1996, elect to participate in the State-County Property Tax
Administration Program.
(b) (1) In each fiscal year from the 1995-96 fiscal year to the
2000-01 fiscal year, inclusive, an eligible county participating in
the State-County Property Tax Administration Program may receive a
loan for up to the amount listed in paragraph (3). The loan shall be
repaid by June 30 of the fiscal year following the year in which the
loan is made. However, at the discretion of the Director of
Finance, the loan may be renewed once for an additional 12-month
period at the request of the participating county board of
supervisors. For the Counties of Fresno, Orange, San Benito, and
Solano any loan agreement signed on or before July 31, 1996, shall be
deemed a loan agreement for the 1995-96 fiscal year for the purposes
of this section.
(2) If an eligible county elects to participate in the
State-County Property Tax Administration Program, it shall enter into
a contractual agreement with the Department of Finance. At a
minimum, the contractual agreement shall include the following:
(A) The loan amount, as determined by the Director of Finance.
(B) Repayment provisions, including the interception of Motor
Vehicle License Fee Account moneys apportioned pursuant to Section
11005 to repay the General Fund.
(C) A listing of the proposed use of the additional resources
including, but not limited to:
(i) Proposed new positions.
(ii) Increased automation costs.
(D) An agreement to provide to the Department of Finance, by March
31 of the fiscal year in which the loan is made, a report projecting
the impact of the increased funding in the current and subsequent
fiscal year.
(3) Upon request of the Department of Finance, the Controller
shall provide a loan to the following counties for up to the amount
specified by the Director of Finance, not to exceed the following
amounts:
Jurisdiction Amount
Alameda .......................... $ 2,152,429
Alpine ........................... 3,124
Amador ........................... 80,865
Butte ............................ 381,956
Calaveras ........................ 109,897
Colusa ........................... 53,957
Contra Costa ..................... 2,022,088
Del Norte ........................ 36,203
El Dorado ........................ 302,795
Fresno ........................... 1,165,249
Glenn ............................ 59,197
Humboldt ......................... 210,806
Imperial ......................... 231,673
Inyo ............................. 100,080
Kern ............................. 1,211,318
Kings............................. 138,653
Lake ............................. 117,376
Lassen ........................... 54,699
Los Angeles ...................... 13,451,670
Madera ........................... 212,991
Marin ............................ 790,490
Mariposa ......................... 46,476
Mendocino ........................ 160,435
Merced ........................... 298,004
Modoc ............................ 24,022
Mono ............................. 47,778
Monterey ......................... 795,819
Napa ............................. 366,020
Nevada ........................... 234,292
Orange ........................... 6,826,325
Placer ........................... 628,047
Plumas ........................... 80,606
Riverside ........................ 2,358,068
Sacramento ....................... 1,554,245
San Benito ....................... 90,408
San Bernardino ................... 2,139,938
San Diego ........................ 5,413,943
San Francisco .................... 1,013,332
San Joaquin ...................... 818,686
San Luis Obispo .................. 736,288
San Mateo ........................ 2,220,001
Santa Barbara .................... 926,817
Santa Clara ...................... 4,213,639
Santa Cruz ....................... 565,328
Shasta ........................... 342,399
Sierra ........................... 7,383
Siskiyou ......................... 91,164
Solano ........................... 469,207
Sonoma ........................... 1,035,049
Stanislaus ....................... 866,155
Sutter ........................... 147,436
Tehama ........................... 97,222
Trinity .......................... 24,913
Tulare ........................... 501,907
Tuolumne ......................... 126,067
Ventura .......................... 1,477,789
Yolo ............................. 278,309
Yuba ............................. 88,968
(4) The Department of Finance shall consider any or all of the
following items in determining the extent to which a county has
satisfied the terms and repaid the loan, pursuant to the contract, as
offered under this part:
(A) County performance as indicated by the State Board of
Equalization's sample survey required pursuant to Section 15640 of
the Government Code.
(B) Performance measures adopted by the California Assessors'
Association.
(C) Reduction of backlog of assessment appeals and Proposition 8
declines in value.
(D) County compliance with mandatory audits required by Section
469.
(E) Reduction of backlogs in new construction, changes in
ownership, and supplemental roll.
(F) Other measures, as determined by the Director of Finance.
(5) The Director of Finance shall notify the Controller of any
participating county that fails to comply with the terms of the
agreement, including the repayment of the loan. When the Controller
receives notice from the Director of Finance, the Controller shall
make an apportionment to the General Fund on behalf of the
participating county in the amount of that required payment for the
purpose of making that payment. The Controller shall make that
payment only from moneys credited to the Motor Vehicle License Fee
Account in the Transportation Tax Fund to which the participating
county is entitled at that time under Chapter 5 (commencing with
Section 11001) of Part 5 of Division 2, and shall thereupon reduce,
by the amount of the payment, the subsequent allocation or
allocations to which the county would otherwise be entitled under
that chapter.
(c) (1) Funds appropriated for purposes of this section shall be
used to enhance the property tax administration system by providing
supplemental resources. Amounts provided to any county as a loan
pursuant to this section shall not be used to supplant the current
level of funding. In order to participate in the State-County
Property Tax Administration Program, a participating county shall
maintain a base staffing level, including contract staff, and a total
funding level in the county assessor's office, independent of the
loan proceeds provided pursuant to this act, equal to the levels in
the 1994-95 fiscal year exclusive of amounts provided to the assessor'
s office pursuant to Item 9100-102-001 of the Budget Act of 1994.
However, in a county in which the 1994-95 funding level for the
assessor's office was higher than the 1993-94 level, the 1993-94
fiscal year staffing and funding levels shall be considered the base
year for purposes of this section. Commencing with the 1996-97
fiscal year, if a county was otherwise eligible but was unable to
participate in this program in the 1995-96 fiscal year because it did
not meet the funding level and staffing requirements of this
paragraph, that county shall maintain a base staffing level,
including contract staff, and a total funding level in the county
assessor's office equal to the levels in the 1995-96 fiscal year.
(2) Prior to the assessor's recommendation for participation in
the State-County Property Tax Administration Program, the assessor
shall consult with the county tax collector, and any other county
agency directly involved in property tax administration, to discuss
the needs of the program for the duration of the contractual
agreement.
(d) A participating county may establish a tracking system whereby
a work or function number is assigned to each appraisal or
administrative activity. That system should provide statistical data
on the number of production units performed by each employee and the
positive and negative change in assessed value attributable to the
activities performed by each employee.
(e) Notwithstanding Section 95.3, no amount of funds provided to
an eligible county pursuant to this section shall result in any
deduction from those property tax administrative costs that are
eligible for reimbursement pursuant to Section 95.3.
(f) At the request of the Department of Finance, the board shall
assist the Department of Finance in evaluating contracts entered into
pursuant to this section.
SEC. 142. Section 97.3 of the Revenue and Taxation Code is amended
to read:
97.3. Notwithstanding any other provision of this chapter, the
computations and allocations made by each county pursuant to Section
96.1 or its predecessor section, as modified by Section 97.2 or its
predecessor section for the 1992-93 fiscal year, shall be modified
for the 1993-94 fiscal year pursuant to subdivisions (a) to (c),
inclusive, as follows:
(a) The amount of property tax revenue deemed allocated in the
prior fiscal year to each county and city and county shall be reduced
by an amount to be determined by the Director of Finance in
accordance with the following:
(1) The total amount of the property tax reductions for counties
and cities and counties determined pursuant to this section shall be
one billion nine hundred ninety-eight million dollars
($1,998,000,000) in the 1993-94 fiscal year.
(2) The Director of Finance shall determine the amount of the
reduction for each county or city and county as follows:
(A) The proportionate share of the property tax revenue reduction
for each county or city and county that would have been imposed on
all counties under the proposal specified in the "May Revision of the
1993-94 Governor's Budget" shall be determined by reference to the
document entitled "Estimated County Property Tax Transfers Under
Governor's May Revision Proposal," published by the Legislative
Analyst's Office on June 1, 1993.
(B) Each county's or city and county's proportionate share of
total taxable sales in all counties in the 1991-92 fiscal year shall
be determined.
(C) An amount for each county and city and county shall be
determined by applying its proportionate share determined pursuant to
subparagraph (A) to the one billion nine hundred ninety-eight
million dollar ($1,998,000,000) statewide reduction for counties and
cities and counties.
(D) An amount for each county and city and county shall be
determined by applying its proportionate share determined pursuant to
subparagraph (B) to the one billion nine hundred ninety-eight
million dollar ($1,998,000,000) statewide reduction for counties and
cities and counties.
(E) The Director of Finance shall add the amounts determined
pursuant to subparagraphs (C) and (D) for each county and city and
county, and divide the resulting figure by two. The amount so
determined for each county and city and county shall be divided by a
factor of 1.038. The resulting figure shall be the amount of
property tax revenue to be subtracted from the amount of property tax
revenue deemed allocated in the prior fiscal year.
(3) The Director of Finance shall, by July 15, 1993, report to the
Joint Legislative Budget Committee its determination of the amounts
determined pursuant to paragraph (2).
(4) On or before August 15, 1993, the Director of Finance shall
notify the auditor of each county and city and county of the amount
of property tax revenue reduction determined for each county and city
and county.
(5) Notwithstanding any other provision of this subdivision, the
amount of the reduction specified in paragraph (2) for any county or
city and county that has first implemented, for the 1993-94 fiscal
year, the alternative procedure for the distribution of property tax
levies authorized by Chapter 2 (commencing with Section 4701) of Part
8 shall be reduced, for the 1993-94 fiscal year only, in the amount
of any increased revenue allocated to each qualifying school entity
that would not have been allocated for the 1993-94 fiscal year but
for the implementation of that alternative procedure. For purposes
of this paragraph, "qualifying school entity" means any school
district, county office of education, or community college district
that is not an excess tax school entity as defined in Section 95.1.
Notwithstanding any other provision of this paragraph, the amount of
any reduction calculated pursuant to this paragraph for any county or
city and county shall not exceed the reduction calculated for that
county or city and county pursuant to paragraph (2).
(b) The amount of property tax revenue deemed allocated in the
prior fiscal year to each city shall be reduced by an amount to be
determined by the Director of Finance in accordance with the
following:
(1) The total amount of the property tax reductions determined for
cities pursuant to this section shall be two hundred eighty-eight
million dollars ($288,000,000) in the 1993-94 fiscal year.
(2) The Director of Finance shall determine the amount of
reduction for each city as follows:
(A) The amount of property tax revenue that is estimated to be
attributable in the 1993-94 fiscal year to the amount of each city's
state assistance payment received by that city pursuant to Chapter
282 of the Statutes of 1979 shall be determined.
(B) A factor for each city equal to the amount determined pursuant
to subparagraph (A) for that city, divided by the total of the
amounts determined pursuant to subparagraph (A) for all cities, shall
be determined.
(C) An amount for each city equal to the factor determined
pursuant to subparagraph (B), multiplied by three hundred eighty-two
million five hundred thousand dollars ($382,500,000), shall be
determined.
(D) In no event shall the amount for any city determined pursuant
to subparagraph (C) exceed a per capita amount of nineteen dollars
and thirty-one cents ($19.31), as determined in accordance with that
city's population on January 1, 1993, as estimated by the Department
of Finance.
(E) The amount determined for each city pursuant to subparagraphs
(C) and (D) shall be the amount of property tax revenue to be
subtracted from the amount of property tax revenue deemed allocated
in the prior year.
(3) The Director of Finance shall, by July 15, 1993, report to the
Joint Legislative Budget Committee those amounts determined pursuant
to paragraph (2).
(4) On or before August 15, 1993, the Director of Finance shall
notify each county auditor of the amount of property tax revenue
reduction determined for each city located within that county.
(c) (1) The amount of property tax revenue deemed allocated in the
prior fiscal year to each special district, as defined pursuant to
subdivision (m) of Section 95, shall be reduced by the amount
determined for the district pursuant to paragraph (3) and increased
by the amount determined for the district pursuant to paragraph (4).
The total net amount of these changes is intended to equal two
hundred forty-four million dollars ($244,000,000) in the 1993-94
fiscal year.
(2) (A) Notwithstanding any other provision of this subdivision,
no reduction shall be made pursuant to this subdivision with respect
to any of the following special districts:
(i) A local hospital district as described in Division 23
(commencing with Section 32000) of the Health and Safety Code.
(ii) A water agency that does not sell water at retail, but not
including an agency the primary function of which, as determined on
the basis of total revenues, is flood control.
(iii) A transit
district.
(iv) A police protection district formed pursuant to Part 1
(commencing with Section 20000) of Division 14 of the Health and
Safety Code.
(v) A special district that was a multicounty special district as
of July 1, 1979.
(B) Notwithstanding any other provision of this subdivision, the
first one hundred four thousand dollars ($104,000) of the amount of
any reduction that otherwise would be made under this subdivision
with respect to a qualifying community services district shall be
excluded. For purposes of this subparagraph, a "qualifying community
services district" means a community services district that meets
all of the following requirements:
(i) Was formed pursuant to Division 3 (commencing with Section
61000) of Title 6 of the Government Code.
(ii) Succeeded to the duties and properties of a police protection
district upon the dissolution of that district.
(iii) Currently provides police protection services to
substantially the same territory as did that district.
(iv) Is located within a county in which the board of supervisors
has requested the Department of Finance that this subparagraph be
operative in the county.
(3) (A) On or before September 15, 1993, the county auditor shall
determine an amount for each special district equal to the amount of
its allocation determined pursuant to Section 96 or 96.1, and Section
96.5 or their predecessor sections for the 1993-94 fiscal year
multiplied by the ratio determined pursuant to paragraph (1) of
subdivision (a) of former Section 98.6 as that section read on June
15, 1993. In those counties that were subject to former Sections
98.66, 98.67, and 98.68, as those sections read on that same date,
the county auditor shall determine an amount for each special
district that represents the current amount of its allocation
determined pursuant to Section 96 or 96.1, and Section 96.5 or their
predecessor sections for the 1993-94 fiscal year that is attributed
to the property tax shift from schools required by Chapter 282 of the
Statutes of 1979. In that county subject to Section 100.4, the
county auditor shall determine an amount for each special district
that represents the current amount of its allocations determined
pursuant to Section 96, 96.1, 96.5, or 100.4 or their predecessor
sections for the 1993-94 fiscal year that is attributable to the
property tax shift from schools required by Chapter 282 of the
Statutes of 1979. In determining these amounts, the county auditor
shall adjust for the influence of increased assessed valuation within
each district, including the effect of jurisdictional changes, and
the reductions in property tax allocations required in the 1992-93
fiscal year by Chapters 699 and 1369 of the Statutes of 1992. In the
case of a special district that has been consolidated or
reorganized, the auditor shall determine the amount of its current
property tax allocation that is attributable to the prior district's
or districts' receipt of state assistance payments pursuant to
Chapter 282 of the Statutes of 1979. Notwithstanding any other
provision of this paragraph, for a special district that is governed
by a city council or whose governing board has the same membership as
a city council and that is a subsidiary district as defined in
subdivision (e) of Section 16271 of the Government Code, the county
auditor shall multiply the amount that otherwise would be calculated
pursuant to this paragraph by 0.38 and the result shall be used in
the calculations required by paragraph (5). In no event shall the
amount determined by this paragraph be less than zero.
(B) Notwithstanding subparagraph (A), commencing with the 1994-95
fiscal year, in the County of Sacramento, the auditor shall determine
the amount for each special district that represents the current
amount of its allocations determined pursuant to Section 96, 96.1,
96.5, or 100.6 for the 1994-95 fiscal year that is attributed to the
property tax shift from schools required by Chapter 282 of the
Statutes of 1979.
(4) (A) (i) On or before September 15, 1993, the county auditor
shall determine an amount for each special district that is engaged
in fire protection activities, as reported to the Controller for
inclusion in the 1989-90 Edition of the Financial Transactions Report
Concerning Special Districts under the heading of "Fire Protection,"
that is equal to the amount of revenue allocated to that special
district from the Special District Augmentation Fund for fire
protection activities in the 1992-93 fiscal year. For purposes of
the preceding sentence for counties of the second class, the phrase
"amount of revenue allocated to that special district" means an
amount of revenue that was identified for transfer to that special
district, rather than the amount of revenue that was actually
received by that special district pursuant to that transfer.
(ii) In the case of a special district, other than a special
district governed by the county board of supervisors or whose
governing body is the same as the county board of supervisors, that
is engaged in fire protection activities as reported to the
Controller, the county auditor shall also determine the amount by
which the district's amount determined pursuant to paragraph (3)
exceeds the amount by which its allocation was reduced by operation
of former Section 98.6 in the 1992-93 fiscal year. This amount shall
be added to the amount otherwise determined for the district under
this paragraph. In any county subject to former Section 98.65,
98.66, 98.67, or 98.68 in that same fiscal year, the county auditor
shall determine for each special district that is engaged in fire
protection activities an amount that is equal to the amount
determined for that district pursuant to paragraph (3).
(B) For purposes of this paragraph, a special district includes
any special district that is allocated property tax revenue pursuant
to this chapter and does not appear in the State Controller's Report
on Financial Transactions Concerning Special Districts, but is
engaged in fire protection activities and appears in the State
Controller's Report on Financial Transactions Concerning Counties.
(5) The total amount of property taxes allocated to special
districts by the county auditor as a result of paragraph (4) shall be
subtracted from the amount of property tax revenues not allocated to
special districts by the county auditor as a result of paragraph (3)
to determine the amount to be deposited in the Education Revenue
Augmentation Fund as specified in subdivision (d).
(6) On or before September 30, 1993, the county auditor shall
notify the Director of Finance of the net amount determined for
special districts pursuant to paragraph (5).
(d) (1) The amount of property tax revenues not allocated to the
county, city and county, cities within the county, and special
districts as a result of the reductions required by subdivisions (a),
(b), and (c) shall instead be deposited in the Educational Revenue
Augmentation Fund established in each county or city and county
pursuant to Section 97.2. The amount of revenue in the Educational
Revenue Augmentation Fund, derived from whatever source, shall be
allocated pursuant to paragraphs (2) and (3) to school districts and
county offices of education, in total, and to community college
districts, in total, in the same proportion that property tax
revenues were distributed to school districts and county offices of
education, in total, and community college districts, in total,
during the 1992-93 fiscal year.
(2) The county auditor shall, based on information provided by the
county superintendent of schools pursuant to this paragraph,
allocate that proportion of the revenue in the Educational Revenue
Augmentation Fund to be allocated to school districts and county
offices of education only to those school districts and county
offices of education within the county that are not excess tax school
entities, as defined in subdivision (n) of Section 95. The county
superintendent of schools shall determine the amount to be allocated
to each school district in inverse proportion to the amounts of
property tax revenue per average daily attendance in each school
district. For each county office of education, the allocation shall
be made based on the historical split of base property tax revenue
between the county office of education and school districts within
the county. In no event shall any additional money be allocated from
the Educational Revenue Augmentation Fund to a school district or
county office of education upon that district or county office of
education becoming an excess tax school entity. If, after
determining the amount to be allocated to each school district and
county office of education, the county superintendent of schools
determines there are still additional funds to be allocated, the
county superintendent of schools shall determine the remainder to be
allocated in inverse proportion to the amounts of property tax
revenue, excluding Educational Revenue Augmentation Fund moneys, per
average daily attendance in each remaining school district, and on
the basis of the historical split described above for each county
office of education, that is not an excess tax school entity until
all funds that would not result in a school district or county office
of education becoming an excess tax school entity are allocated.
The county superintendent of schools may determine the amounts to be
allocated between each school district and county office of education
to ensure that all funds that would not result in a school district
or county office of education becoming an excess tax school entity
are allocated.
(3) The county auditor shall, based on information provided by the
Chancellor of the California Community Colleges pursuant to this
paragraph, allocate that proportion of the revenue in the Educational
Revenue Augmentation Fund to be allocated to community college
districts only to those community college districts within the county
that are not excess tax school entities, as defined in subdivision
(n) of Section 95. The chancellor shall determine the amount to be
allocated to each community college district in inverse proportion to
the amounts of property tax revenue per funded full-time equivalent
student in each community college district. In no event shall any
additional money be allocated from the Educational Revenue
Augmentation Fund to a community college district upon that district
becoming an excess tax school entity.
(4) (A) If, after making the allocation required pursuant to
paragraph (2), the auditor determines that there are still additional
funds to be allocated, the auditor shall allocate those excess funds
pursuant to paragraph (3). If, after making the allocation pursuant
to paragraph (3), the auditor determines that there are still
additional funds to be allocated, the auditor shall allocate those
excess funds pursuant to paragraph (2). If, after determining the
amount to be allocated to each community college district, the
Chancellor of the California Community Colleges determines that there
are still additional funds to be allocated, the Chancellor of the
California Community Colleges shall determine the remainder to be
allocated to each community college district in inverse proportion to
the amounts of property tax revenue, excluding Educational Revenue
Augmentation Fund moneys, per funded full-time equivalent student in
each remaining community college district that is not an excess tax
school entity until all funds that would not result in a community
college district becoming an excess tax school entity are allocated.
(B) (i) For the 1995-96 fiscal year and each fiscal year
thereafter, if, after making the allocations pursuant to paragraphs
(2) and (3) and subparagraph (A), the auditor determines that there
are still additional funds to be allocated, the auditor shall,
subject to clauses (ii) and (iii), allocate those excess funds to the
county superintendent of schools. Funds allocated pursuant to this
subparagraph shall be counted as property tax revenues for special
education programs in augmentation of the amount calculated pursuant
to Section 2572 of the Education Code, to the extent that those
property tax revenues offset state aid for county offices of
education and school districts within the county pursuant to Section
56712 of the Education Code.
(ii) For the 1995-96 fiscal year only, this subparagraph shall
have no application to the County of Mono and the amount allocated
pursuant to this subparagraph in the County of Marin shall not exceed
five million dollars ($5,000,000).
(iii) For the 1996-97 fiscal year only, the total amount of funds
allocated by the auditor pursuant to this subparagraph and
subparagraph (B) of paragraph (4) of subdivision (d) of Section 97.2
shall not exceed that portion of two million five hundred thousand
dollars ($2,500,000) that corresponds to the county's proportionate
share of all moneys allocated pursuant to this subparagraph and
subparagraph (B) of paragraph (4) of subdivision (d) of Section 97.2
for the 1995-96 fiscal year. Upon the request of the auditor, the
Department of Finance shall provide to the auditor all information in
the department's possession that is necessary for the auditor to
comply with this clause.
(C) For purposes of allocating the Educational Revenue
Augmentation Fund for the 1996-97 fiscal year, the auditor shall,
after making the allocations for special education programs, if any,
required by subparagraph (B), allocate all remaining funds among the
county, cities, and special districts in proportion to the amounts of
ad valorem property tax revenue otherwise required to be shifted
from those local agencies to the county's Educational Revenue
Augmentation Fund for the relevant fiscal year. For purposes of ad
valorem property tax revenue allocations for the 1997-98 fiscal year
and each fiscal year thereafter, no amount of ad valorem property tax
revenue allocated to the county, a city, or a special district
pursuant to this subparagraph shall be deemed to be an amount of ad
valorem property tax revenue allocated to that local agency in the
prior fiscal year.
(5) For purposes of allocations made pursuant to Section 96.1 for
the 1994-95 fiscal year, the amounts allocated from the Educational
Revenue Augmentation Fund pursuant to this subdivision, other than
those amounts deposited in the Educational Revenue Augmentation Fund
pursuant to any provision of the Health and Safety Code, shall be
deemed property tax revenue allocated to the Educational Revenue
Augmentation Fund in the prior fiscal year.
SEC. 143. Section 619 of the Revenue and Taxation Code, as amended
by Section 10 of Chapter 940 of the Statutes of 1997, is amended to
read:
619. (a) Except as provided in subdivision (f), the assessor
shall, upon or prior to completion of the local roll, either:
(1) Inform each assessee of real property on the local secured
roll whose property's full value has increased of the assessed value
of that property as it shall appear on the completed local roll; or
(2) Inform each assessee of real property on the local secured
roll, or each assessee on the local secured roll and each assessee on
the unsecured roll, of the assessed value of his or her real
property or of both his or her real property and his or her personal
property as it shall appear on the completed local roll.
(b) The information given by the assessor to the assessee pursuant
to paragraph (1) or (2) of subdivision (a) shall include a
notification of hearings by the county board of equalization, which
shall include the period during which assessment protests will be
accepted and the place where they may be filed. The information
shall also include an explanation of the stipulation procedure set
forth in Section 1607 and the manner in which the assessee may
request use of this procedure.
(c) The information shall also include the full value of the
property.
(d) The information shall be furnished by the assessor to the
assessee by regular United States mail directed to him or her at his
or her latest address known to the assessor.
(e) Neither the failure of the assessee to receive the information
nor the failure of the assessor to so inform the assessee shall in
any way affect the validity of any assessment or the validity of any
taxes levied pursuant thereto.
(f) This section shall not apply to annual increases in the
valuation of property which reflect the inflation rate, not to exceed
2 percent, pursuant to the authority of subdivision (b) of Section 2
of Article XIIIA of the California Constitution, for purposes of
property tax limitation determinations.
(g) This section does not apply to increases in assessed value
caused solely by changes in the assessment ratio provided for in
Section 401.
(h) This section shall remain in effect only until January 1,
1999, and as of that date is repealed.
SEC. 144. Section 619 of the Revenue and Taxation Code, as added
by Section 10.5 of Chapter 940 of the Statutes of 1997, is amended to
read:
619. (a) Except as provided in subdivision (f), the assessor
shall, upon or prior to completion of the local roll, do either of
the following:
(1) Inform each assessee of real property on the local secured
roll whose property's full value has increased over its full value
for the prior year of the assessed value of that property as it shall
appear on the completed local roll.
(2) Inform each assessee of real property on the local secured
roll, or each assessee on the local secured roll and each assessee on
the unsecured roll, of the assessed value of his or her real
property or of both his or her real property and his or her personal
property as it shall appear on the completed local roll.
(b) The information given by the assessor to the assessee pursuant
to paragraph (1) or (2) of subdivision (a) shall include a
notification of hearings by the county board of equalization, which
shall include the period during which assessment protests will be
accepted and the place where they may be filed. The information
shall also include an explanation of the stipulation procedure set
forth in Section 1607 and the manner in which the assessee may
request use of this procedure.
(c) In the case of an increase in a property's full value that is
determined pursuant to paragraph (1) of subdivision (a) of Section 51
over the property's full value determined for the prior year in
accordance with paragraph (2) of that same subdivision, the
information shall also include the full cash value base of the
property, compounded annually from the base year to the current year
by the appropriate inflation factors.
(d) The information shall be furnished by the assessor to the
assessee by regular United States mail directed to him or her at his
or her latest address known to the assessor.
(e) Neither the failure of the assessee to receive the information
nor the failure of the assessor to so inform the assessee shall in
any way affect the validity of any assessment or the validity of any
taxes levied pursuant thereto.
(f) This section shall not apply to annual increases in the
valuation of property which reflect the inflation rate, not to exceed
2 percent, pursuant to the authority of subdivision (b) of Section 2
of Article XIIIA of the California Constitution, for purposes of
property tax limitation determinations.
(g) This section does not apply to increases in assessed value
caused solely by changes in the assessment ratio provided for in
Section 401.
(h) This section shall become operative on January 1, 1999.
SEC. 145. Section 3772.5 of the Revenue and Taxation Code is
amended to read:
3772.5. For purposes of this chapter:
(a) "Low-income persons" means persons and families of low or
moderate income, as defined by Section 50093 of the Health and Safety
Code.
(b) "Nonprofit organization" means a nonprofit organization
incorporated pursuant to Part 2 (commencing with Section 5110) of
Division 2 of Title 1 of the Corporations Code for the purpose of
acquisition of either of the following:
(1) Single-family or multifamily dwellings for rehabilitation and
sale or rent to low-income persons, or for other use to serve
low-income persons.
(2) Vacant land for construction of residential dwellings and
subsequent sale or rent to low-income persons, for other use to serve
low-income persons, or for dedication of that vacant land to public
use.
(c) "Rehabilitation" means repairs and improvements to a
substandard building, as defined in subdivision (f) of Section 17920
of the Health and Safety Code, necessary to make it a building which
is not a substandard building.
SEC. 146. Section 7273 of the Revenue and Taxation Code is amended
to read:
7273. In addition to the amounts otherwise provided for
preparatory costs, the board shall charge an amount for its services
in administering the transactions and use tax determined by the
board, with the concurrence of the Department of Finance, as follows:
(a) Beginning with the 1993-94 fiscal year, the amount charged
shall be based on the total special taxing jurisdiction costs
reflected in the annual Budget Act. This amount comprises the
categories of direct, shared, and central agency costs incurred by
the board and shall include the following:
(1) The amount charged to each entity shall be based on the
recommendations incorporated in the March 1992, report by the Auditor
General entitled "The Board of Equalization Needs To Adjust Its
Model For Setting Reimbursement Rates For Special Tax Jurisdictions."
(2) The amount charged may be adjusted in the current fiscal year
to reflect the difference between the board's budgeted costs and any
significant revised estimate of costs. Any adjustment shall be
subject to budgetary controls included in the Budget Act. Prior to
any adjustment, the Department of Finance shall notify the
Chairperson of the Joint Legislative Budget Committee not later than
30 days prior to the effective date of the adjustment.
(3) For the 1995-96 fiscal year and each fiscal year thereafter,
the amount charged shall be adjusted to reflect the difference
between the board's recovered costs and the actual costs incurred by
the board during the fiscal year two years prior.
(b) The board shall notify districts by June 1 of the amount that
it anticipates will be assessed for the next fiscal year. The
districts shall be notified of the actual amounts that will be
assessed within 30 days after enactment of the Budget Act for that
fiscal year.
(c) The amount charged a transactions and use tax district which
becomes operative during the fiscal year shall be estimated for that
fiscal year based on that district's proportionate share of direct,
indirect, and shared costs.
(d) The amounts determined by subdivision (a) shall be deducted in
equal amounts from the quarterly allocation of taxes collected by
the board for a given district.
SEC. 147. Section 7284.6 of the Revenue and Taxation Code is
amended to read:
7284.6. (a) It is unlawful for any local jurisdiction, including
any employee, officer, authorized agent, or contractor of the local
jurisdiction, to permit any utility user's tax return or copy
thereof, or any records of any payment of utility user's tax, to be
seen or examined by, or disclosed to, any person who is not one of
the following:
(1) An employee, officer, authorized agent, or contractor of the
local jurisdiction with administrative or compliance responsibilities
relating to the utility user's tax ordinance.
(2) An employee of the utility or other company that is required
to report or pay a utility user's tax to the local jurisdiction, and
that furnished the records or information.
(b) Notwithstanding subdivision (a), this section does not
prohibit a local jurisdiction from doing any of the following:
(1) Disclosing to a taxpayer information derived from the records
of a utility or other utility service provider, if the information is
used to calculate the utility user's tax of that taxpayer; or,
disclosing that information in a tax collection action, provided that
that information is subject to a protective order issued by a court.
(2) Disclosing to a tax officer of the state or federal
government, pursuant to a written reciprocal agreement, information
derived from the records of a utility or other utility service
provider, if the information is used to calculate the local utility
user's tax.
(3) Disclosing the gross utility user's tax revenues collected
from the customers of a utility that is owned or operated by the
local jurisdiction that imposes the utility user's tax.
(c) For purposes of this section:
(1) "Local jurisdiction" means any city, county, city and county,
including any chartered city or city and county, district, or public
or municipal corporation.
(2) "District" means any agency of the state, formed pursuant to
general law or a special act, for the local performance of
governmental or proprietary functions within limited boundaries.
(d) Any violation of this section is a misdemeanor and is
punishable by a fine not exceeding one thousand dollars ($1,000), by
imprisonment in a county jail not exceeding one year, or by both, in
the discretion of the court.
(e) This section shall not be construed to prohibit the divulging
of information to the State Board of Equalization for the purposes of
its administration of the Energy Resources Surcharge Law (Part 19
(commencing with Section 40001) of Division 2 ).
(f) Any information subject to subdivision (a) shall be exempt
from disclosure under the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of the Government Code),
except that nothing in this section shall be construed to prohibit
the disclosure of records pursuant to Section 6254.16 of the
Government Code.
SEC. 148. Section 7284.7 of the Revenue and Taxation Code is
amended to read:
7284.7. (a) It is unlawful for any employee, officer, authorized
agent or contractor of a local jurisdiction levying a utility user's
tax, that obtains access to information contained in utility user tax
records of a local jurisdiction, to disclose any information
obtained from the records of a utility or other company required to
report or pay a utility user's tax to the local jurisdiction as a
result of an audit, or any other information obtained in the course
of an on-site audit, to any person who is not an employee, officer,
authorized agent, or contractor of the local jurisdiction with
administrative or compliance
responsibilities relating to the utility user's tax
ordinance.
(b) Any violation of this section is a misdemeanor and is
punishable by a fine not exceeding one thousand dollars ($1,000), by
imprisonment in a county jail not exceeding one year, or by both, in
the discretion of the court.
(c) This section shall not be construed to prohibit the divulging
of information to the State Board of Equalization for the purposes of
its administration of the Energy Resources Surcharge Law (Part 19
(commencing with Section 40001) of Division 2 ).
(d) Notwithstanding subdivisions (a) and (b), this section shall
not be construed to prohibit an employee, officer, authorized agent,
or contractor of a local jurisdiction levying a utility user's tax
from doing any of the following:
(1) Disclosing to a taxpayer information derived from the records
of a utility or other utility service provider, if the information is
used to calculate the utility user's tax of that taxpayer; or,
disclosing that information in a tax collection action, provided that
the information is subject to a protective order issued by a court.
(2) Disclosing to a tax officer of the state or federal
government, pursuant to a written reciprocal agreement, information
obtained from the records of a utility or other utility service
provider, if the information is used to calculate the local utility
user's tax.
(3) Disclosing the gross utility user's tax revenues collected
from the customers of a utility that is owned or operated by the
local jurisdiction that imposes the utility user's tax.
(e) For purposes of this section:
(1) "Local jurisdiction" means any city, county, city and county,
including any chartered city or city and county, district, or public
or municipal corporation.
(2) "District" means any agency of the state, formed pursuant to
general law or a special act, for the local performance of
governmental or proprietary functions within limited boundaries.
(f) Nothing in this section shall be construed to create an
exemption from disclosure under subdivision (k) of Section 6254 of
the Government Code, or to prohibit the disclosure of records
pursuant to Section 6254.16 of the Government Code or subdivision (i)
of Section 6254 of the Government Code.
SEC. 149. Section 17053.5 of the Revenue and Taxation Code is
amended to read:
17053.5. (a) In the case of qualified renters, there shall be
allowed credits against their "net tax" (as defined in Section
17039). The credit shall be in the amount of one hundred twenty
dollars ($120) for married couples filing joint returns, heads of
household and surviving spouses (as defined in Section 17046), and
sixty dollars ($60) for other individuals.
Except as provided in subdivision (b), a husband and wife shall
receive but one credit under this section. If the husband and wife
file separate returns, the credit may be taken by either or equally
divided between them, except as follows:
(1) If one spouse was a resident for the entire taxable year and
the other spouse was a nonresident for part or all of the taxable
year, the resident spouse shall be allowed one-half the credit
allowed to married persons and the nonresident spouse shall be
permitted one-half the credit allowed to married persons, prorated as
provided in subdivision (e).
(2) If both spouses were nonresidents for part of the taxable
year, the credit allowed to married persons shall be divided equally
between them subject to the proration provided in subdivision (e).
(b) In the case of a husband and wife, if each spouse maintained a
separate place of residence and resided in this state during the
entire taxable year, each spouse will be allowed one-half the full
credit allowed to married persons provided in subdivision (a).
(c) For purposes of this section, a "qualified renter" means an
individual who:
(1) Was a resident of this state, as defined in Section 17014, and
(2) Rented and occupied premises in this state which constituted
his or her principal place of residence during at least 50 percent of
the taxable year.
(d) The term "qualified renter" does not include any of the
following:
(1) An individual who for more than 50 percent of the taxable year
rented and occupied premises which were exempt from property taxes,
except that an individual, otherwise qualified, shall be deemed a
qualified renter if he or she or his or her landlord pays possessory
interest taxes, or the owner of those premises makes payments in lieu
of property taxes which are substantially equivalent to property
taxes paid on properties of comparable market value.
(2) An individual whose principal place of residence for more than
50 percent of the taxable year is with any other person who claimed
that individual as a dependent for income tax purposes.
(3) An individual who has been granted or whose spouse has been
granted the homeowners' property tax exemption during the taxable
year. This paragraph shall not apply in the case of an individual
whose spouse has been granted the homeowners' property tax exemption
if each spouse maintained a separate residence for the entire taxable
year.
(e) Any otherwise qualified renter who is a nonresident for any
portion of the taxable year shall claim the credits set forth in
subdivision (a) at the rate of one-twelfth of those credits for each
full month that individual resided within this state during the
taxable year.
(f) Every person claiming the credit provided in this section
shall, as part of that claim, and under penalty of perjury, furnish
that information as the Franchise Tax Board prescribes on a form
supplied by the board.
(g) The credit provided in this section shall be claimed on
returns in the form as the Franchise Tax Board may from time to time
prescribe.
(h) For the purposes of this section, the term "premises" means a
house or a dwelling unit used to provide living accommodations in a
building or structure and the land incidental thereto, but does not
include land only, except in the case where the dwelling unit is a
mobilehome. The credit shall not be allowed for any taxable year for
the rental of land upon which a mobilehome is located if the
mobilehome has been granted a homeowners' exemption under Section 218
in that year.
(i) In the case of qualified renters whose credits provided in
this section exceed their tax liability computed under this part the
excess shall be credited against other amounts due, if any, from the
qualified renter and the balance, if any, shall be refunded to the
qualified renter.
(j) This section shall become operative on January 1, 1998, and
shall apply to any taxable year beginning on or after January 1,
1998.
SEC. 150. Section 18804 of the Revenue and Taxation Code is
amended to read:
18804. (a) This article shall remain in effect only until January
1, 2001, and as of that date is repealed, unless a later enacted
statute, which is enacted before January 1, 2001, deletes or extends
that date.
(b) If, in any calendar year, the Franchise Tax Board estimates by
September 1 that contributions described in this article made on
returns filed in that calendar year will be less than one hundred
thousand dollars ($100,000) for taxable years beginning in 1999 or
less than two hundred fifty thousand dollars ($250,000) for taxable
years beginning in 2000, as may be applicable, then this article is
repealed with respect to taxable years beginning on and after January
1 of that calendar year. The Franchise Tax Board shall estimate the
annual contribution amount by September 1 of each year using the
actual amounts known to be contributed and an estimate of the
remaining year's contributions.
(c) Notwithstanding the repeal of this article, any contribution
amounts designated pursuant to this article prior to its repeal shall
continue to be transferred and disbursed in accordance with this
article as in effect immediately prior to that repeal.
SEC. 151. Section 18872 of the Revenue and Taxation Code is
amended to read:
18872. The Legislature finds and declares that it is important to
inform taxpayers that they may make voluntary contributions to
certain funds or programs, as provided on the state income tax
return. The Legislature further finds and declares that many
taxpayers remain unaware of the voluntary contribution check-offs on
the state income tax return. Therefore, it is the intent of the
Legislature to encourage all persons who prepare state income tax
returns to inform their clients in writing, prior to the completion
of any tax return, that they may make a contribution to any voluntary
contribution check-off on the state income tax return if they so
choose.
SEC. 152. Section 19141.6 of the Revenue and Taxation Code is
amended to read:
19141.6. (a) Each taxpayer determining its income subject to tax
pursuant to Section 25101 or electing to file pursuant to Section
25110 shall, for income years beginning on or after January 1, 1994,
maintain (in the location, in the manner, and to the extent
prescribed in regulations which shall be promulgated by the Franchise
Tax Board on or before December 31, 1995) and make available upon
request all of the following:
(1) Any records as may be appropriate to determine the correct
treatment of the components that are a part of one or more unitary
businesses for purposes of determining the income derived from or
attributable to this state pursuant to Section 25101 or 25110.
(2) Any records as may be appropriate to determine the correct
treatment of amounts that are attributable to the classification of
an item as business or nonbusiness income for purposes of Article 2
(commencing with Section 25120) of Chapter 17 of Part 11.
(3) Any records as may be appropriate to determine the correct
treatment of the apportionment factors for purposes of Article 2
(commencing with Section 25120) of Chapter 17 of Part 11.
(4) Documents and information, including any questionnaires
completed and submitted to the Internal Revenue Service that are
necessary to audit issues involving attribution of income to the
United States or foreign jurisdictions under Section 882 or Subpart F
of Part III of Subchapter N of, or similar sections of, the Internal
Revenue Code.
(b) For purposes of this section:
(1) Information for any year shall be retained for that period of
time in which the taxpayers' income or franchise tax liability to
this state may be subject to adjustment, including all periods in
which additional income or franchise taxes may be assessed, not to
exceed eight years from the due date or extended due date of the
return, or during which a protest is pending before the Franchise Tax
Board, or an appeal is pending before the State Board of
Equalization or a lawsuit is pending in the courts of this state or
the United States with respect to California franchise or income tax.
(2) "Related party" means corporations that are related because
one owns or controls directly or indirectly more than 50 percent of
the stock of the other or because more than 50 percent of the voting
stock of each is owned or controlled, directly or indirectly, by the
same interests.
(3) "Records" includes any books, papers, or other data.
(c) (1) If a corporation subject to this section fails to maintain
or fails to cause another to maintain records as required by
subdivision (a), that corporation shall pay a penalty of ten thousand
dollars ($10,000) for each income year with respect to which the
failure occurs.
(2) If any failure described in paragraph (1) continues for more
than 90 days after the day on which the Franchise Tax Board mails
notice of the failure to the corporation, that corporation shall pay
a penalty (in addition to the amount required under paragraph (1)) of
ten thousand dollars ($10,000) for each 30-day period (or fraction
thereof) during which the failure continues after the expiration of
the 90-day period. The additional penalty imposed by this
subdivision shall not exceed a maximum of fifty thousand dollars
($50,000) if the failure to maintain or the failure to cause another
to maintain is not willful. This maximum shall apply with respect to
income years beginning on or after January 1, 1994, and before the
earlier of the first day of the month following the month in which
regulations are adopted pursuant to this section or December 31,
1995.
(3) For purposes of this section, the time prescribed by
regulations to maintain records (and the beginning of the 90-day
period after notice by the Franchise Tax Board) shall be treated as
not earlier than the last day on which (as shown to the satisfaction
of the Franchise Tax Board) reasonable cause existed for failure to
maintain the records.
(d) (1) The Franchise Tax Board may apply the rules of paragraph
(2) whether or not the board begins a proceeding to enforce a
subpoena, or subpoena duces tecum, if subparagraphs (A), (B), and (C)
apply:
(A) For purposes of determining the correct treatment under Part
11 (commencing with Section 23001) of the items described in
subdivision (a), the Franchise Tax Board issues a subpoena or
subpoena duces tecum to a corporation to produce (either directly or
as agent for the related party) any records or testimony.
(B) The subpoena or subpoena duces tecum is not quashed in a
proceeding begun under paragraph (3) and is not determined to be
invalid in a proceeding begun under Section 19504 to enforce the
subpoena or subpoena duces tecum.
(C) The corporation does not substantially comply in a timely
manner with the subpoena or subpoena duces tecum and the Franchise
Tax Board has sent by certified or registered mail a notice to that
corporation that it has not substantially complied.
(D) If the corporation fails to maintain or fails to cause another
to maintain records as required by subdivision (a), and by reason of
that failure, the subpoena, or subpoena duces tecum, is quashed in a
proceeding described in subparagraph (B) or the corporation is not
able to provide the records requested in the subpoena or subpoena
duces tecum, the Franchise Tax Board may apply the rules of paragraph
(2) to any of the items described in subdivision (a) to which the
records relate.
(2) (A) All of the following shall be determined by the Franchise
Tax Board in the Franchise Tax Board's sole discretion from the
Franchise Tax Board's own knowledge or from information the Franchise
Tax Board may obtain through testimony or otherwise:
(i) The components that are a part of one or more unitary
businesses for purposes of determining the income derived from or
attributable to this state pursuant to Section 25101 or 25110.
(ii) Amounts that are attributable to the classification of an
item as business or nonbusiness income for purposes of Article 2
(commencing with Section 25120) of Chapter 17 of Part 11.
(iii) The apportionment factors for purposes of Article 2
(commencing with Section 25120) of Chapter 17 of Part 11.
(iv) The correct amount of income under Section 882 of, or Subpart
F of Part III of, Subchapter N of, or similar sections of, the
Internal Revenue Code.
(B) This paragraph shall apply to determine the correct treatment
of the items described in subdivision (a) unless the corporation is
authorized by its related parties (in the manner and at the time as
the Franchise Tax Board shall prescribe) to act as the related
parties' limited agent solely for purposes of applying Section 19504
with respect to any request by the Franchise Tax Board to examine
records or produce testimony related to any item described in
subdivision (a) or with respect to any subpoena or subpoena duces
tecum for the records or testimony. The appearance of persons or the
production of records by reason of the corporation being an agent
shall not subject those persons or records to legal process for any
purpose other than determining the correct treatment under Part 11 of
the items described in subdivision (a).
(C) Determinations made in the sole discretion of the Franchise
Tax Board pursuant to this paragraph may be appealed to the State
Board of Equalization, in the manner and at a time, as provided by
Section 19045 or 19324, or may be the subject of an action to recover
tax, in the manner and at a time, as provided by Section 19382. The
review of determinations by the board or the court shall be limited
to whether the determinations were arbitrary or capricious, or are
not supported by substantial evidence.
(3) (A) Notwithstanding any other law or rule of law, any
reporting corporation to which the Franchise Tax Board issues a
subpoena or subpoena duces tecum referred to in subparagraph (A) of
paragraph (1) shall have the right to begin a proceeding to quash the
subpoena or subpoena duces tecum not later than the 90th day after
the subpoena or subpoena duces tecum was issued. In that proceeding,
the Franchise Tax Board may seek to compel compliance with the
subpoena or subpoena duces tecum.
(B) Notwithstanding any other law or rule of law, any reporting
bank or corporation that has been notified by the Franchise Tax Board
that it has determined that the corporation has not substantially
complied with a subpoena or subpoena duces tecum referred to in
paragraph (1) shall have the right to begin a proceeding to review
the determination not later than the 90th day after the day on which
the notice referred to in subparagraph (C) of paragraph (1) was
mailed. If the proceeding is not begun on or before the 90th day,
the determination by the Franchise Tax Board shall be binding and
shall not be reviewed by any court.
(C) The superior courts of the State of California for the
Counties of Los Angeles, Sacramento, and San Diego, and for the City
and County of San Francisco shall have jurisdiction to hear any
proceeding brought under subparagraphs (A) and (B). Any order or
other determination in the proceeding shall be treated as a final
order that may be appealed.
(D) If any corporation takes any action as provided in
subparagraphs (A) and (B), the running of any period of limitations
under Sections 19057 to 19064, inclusive (relating to the assessment
and collection of tax), or under Section 19704 (relating to criminal
prosecutions) with respect to that corporation shall be suspended for
the period during which the proceedings, and appeals therein, are
pending. In no event shall any period expire before the 90th day
after the day on which there is a final determination in the
proceeding.
SEC. 153. Section 19271 of the Revenue and Taxation Code is
amended to read:
19271. (a) (1) For purposes of this article:
(A) "Child support" means support of a child, spouse, or family as
provided in Section 150 of the Family Code.
(B) "Child support delinquency" means a child support obligation
that may include or be limited to interest, fees, or penalties, on
which payment then due has not been received following the expiration
of 90 days from the date payment is due.
(C) "Earnings" may include the items described in Section 5206 of
the Family Code.
(2) A county district attorney enforcing child support obligations
pursuant to Section 11475.1 of the Welfare and Institutions Code
shall refer child support delinquencies to the Franchise Tax Board
for collection. If there is a child support delinquency at the time
the case is opened by the district attorney, the case shall be
referred to the Franchise Tax Board no later than 90 days after
receipt of the case by the district attorney. A county district
attorney may also refer to the Franchise Tax Board a child support
obligation that is 30 days or more past due, and any of these
obligations shall be collected as if they were delinquencies
otherwise described in this subdivision.
(3) Referrals shall be transmitted in the form and manner
prescribed by the Franchise Tax Board.
(4) In order to manage the growth in the number of referrals that
it may receive, the Franchise Tax Board may phase in the referrals as
administratively necessary.
(5) At least 20 days prior to the date that the Franchise Tax
Board commences collection action under this article, the Franchise
Tax Board shall mail notice of the amount due to the obligated parent
at the last known address for payment and advise that person that
failure to pay will result in collection action. If the obligated
parent disagrees with the amount due, the obligated parent shall be
instructed to contact the county district attorney.
(b) (1) (A) Except as otherwise provided in subparagraph (B), when
a delinquency is referred to the Franchise Tax Board pursuant to
subdivision (a), the amount of the child support delinquency shall be
collected from any obligated parent by the Franchise Tax Board in
any manner authorized under the law for collection of a delinquent
personal income tax liability, including, but not limited to,
issuance of an order and levy under Article 4 (commencing with
Section 706.070) of Chapter 5 of Division 2 of Title 9 of Part 2 of
the Code of Civil Procedure in the manner provided for earnings
withholding orders for taxes. Any law providing for the collection
of a delinquent personal income tax liability shall apply to any
delinquency referred under this article in the same manner and with
the same force and effect and to the full extent as if the language
of those laws had been incorporated in full into this article, except
to the extent that any provision is either inconsistent with a
provision of this article or is not relevant to this article.
(B) When a delinquency is referred to the Franchise Tax Board
pursuant to subdivision (a), or at any time thereafter if the
obligated parent owes a delinquent personal income tax liability, the
Franchise Tax Board shall not engage in, or shall cease, any
involuntary collection action to collect the delinquency referred
under this article, until the delinquent personal income tax
liability is paid in full. In the event the obligated parent owes a
delinquent personal income tax liability when a delinquency is
referred, the Franchise Tax Board shall mail the notice specified in
paragraph (4) of subdivision (a). At any time thereafter, the
Franchise Tax Board may mail any other notice to the obligated parent
for voluntary payment as the Franchise Tax Board deems necessary.
However, the Franchise Tax Board may engage in the collection of a
delinquency referred pursuant to subdivision (a) under either of the
following circumstances:
(i) The delinquent personal income tax liability is discharged
from accountability pursuant to Section 13940 of the Government Code.
(ii) The obligor has entered into an installment payment agreement
for the delinquent personal income tax liability and is in
compliance with that agreement, and the Franchise Tax Board
determines that collection of the delinquency referred pursuant to
subdivision (a) would not jeopardize payments under the installment
agreement.
(C) For purposes of subparagraph (B):
(i) "Involuntary collection action" means those actions authorized
by Section 18670, 18670.5, 18671, or 19264, by Article 3 (commencing
with Section 19231), or by Chapter 5 (commencing with Section
706.010) of Division 2 of Title 9 of Part 2 of the Code of Civil
Procedure.
(ii) "Delinquent personal income tax liability" means any taxes,
additions to tax, penalties, interest, fees, or other related amounts
due and payable under Part 10 (commencing with Section 17001) or
this part.
(iii) "Voluntary payment" means any payment made by obligated
parents in response to the notice specified in paragraph (4) of
subdivision (a) or any other notice for voluntary payment mailed by
the Franchise Tax Board.
(2) Any compensation, fee, commission, expense, or any other fee
for service incurred by the Franchise Tax Board in the collection of
a child support delinquency authorized under this article shall not
be an obligation of, or collected from, the obligated parent. A
referred child support delinquency shall be final and due and payable
to the State of California upon written notice to the obligated
parent by the Franchise Tax Board.
(3) For purposes of administering this article:
(A) This chapter and Chapter 7 (commencing with Section 19501)
shall apply, except as otherwise provided by this article.
(B) Any services, information, or enforcement remedies available
to a district attorney or the Title IV-D agency in collecting support
delinquencies or locating absent or noncustodial parents shall be
available to the Franchise Tax Board for purposes of collecting child
support delinquencies under this article, including, but not limited
to, any information that may be disclosed by the Franchise Tax Board
to the California Parent Locator Service under Section 19548.
(C) A request by the Franchise Tax Board for information from a
financial institution shall be treated in the same manner and to the
same extent as a request for information from a district attorney
referring to a support order pursuant to Section 11475.1 of the
Welfare and Institutions Code for purposes of Chapter 20 (commencing
with Section 7460) of Division 7 of Title 1 of the Government Code
(relating to governmental access to financial records),
notwithstanding any other provision of law which is inconsistent or
contrary to this paragraph.
(D) The amount to be withheld in an order and levy to collect
child support delinquencies under Article 4 (commencing with Section
706.070) of Chapter 5 of Division 2 of Title 9 of Part 2 of the Code
of Civil Procedure is the amount required to be withheld pursuant to
an earnings withholding order for support under Section 706.052 of
the Code of Civil Procedure.
(E) Nothing in this article shall be construed to modify the tax
intercept provisions of Article 8 (commencing with Section 708.710)
of Chapter 6 of Division 2 of Part 2 of the Code of Civil Procedure.
(c) Interest on the delinquency shall be computed pursuant to
Section 685.010 of the Code of Civil Procedure.
(d) In the event the collection action would cause undue financial
hardship to the obligated parent, would threaten the health or
welfare of the obligated parent or his or her family, or would cause
undue irreparable loss to the obligated parent, the obligated parent
may notify the Franchise Tax Board which shall, upon being notified,
refer the obligated parent to the referring county district attorney,
unless the Franchise Tax Board is directed otherwise by the county
district attorney for purposes of more effectively administering this
article.
(e)
(1) In no event shall a collection under this article be construed to
be a payment of income taxes imposed under this part.
(2) In the event an obligated parent overpays a liability imposed
under this part, the overpayment shall not be credited against any
delinquency collected pursuant to this article. In the event an
overpayment of a liability imposed under this part is offset and
distributed to a referring county district attorney pursuant to
Sections 12419.3 and 12419.5 of the Government Code or Section
708.740 of the Code of Civil Procedure, and thereby reduces the
amount of the referred delinquency, the referring county district
attorney shall immediately notify the Franchise Tax Board of that
reduction, unless otherwise directed for purposes of more effectively
administering this article.
(3) In no event shall the district attorney refer or the Franchise
Tax Board collect under this article any delinquency if both of the
following circumstances exist:
(A) A court has ordered an obligated parent to make scheduled
payments on a child support arrearages obligation.
(B) The obligated parent is in compliance with the order.
(4) A child support delinquency need not be referred to the
Franchise Tax Board pursuant to this article if an earnings
assignment order or a notice of assignment has been served on the
obligated parent's employer and court-ordered support is being paid
pursuant to the earnings assignment order or the notice of assignment
or at least 50 percent of the obligated parent's earnings are being
withheld for support.
(5) A child support delinquency need not be referred to the
Franchise Tax Board for collection if a jurisdiction outside this
state is enforcing the support order.
(f) Except as otherwise provided in this article, any child
support delinquency referred to the Franchise Tax Board pursuant to
this article shall be treated as a child support delinquency for all
other purposes, and any collection action by the county district
attorney or the Franchise Tax Board with respect to any delinquency
referred pursuant to this article shall have the same priority
against attachment, execution, assignment, or other collection action
as is provided by any other provision of state law.
(g) Except as otherwise specifically provided in subparagraph (B)
of paragraph (1) of subdivision (b), the child support collection
activities authorized by this article shall not interfere with the
primary mission of the Franchise Tax Board to fairly and efficiently
administer the Revenue and Taxation Code for which it is responsible.
(h) Information disclosed to the Franchise Tax Board shall be
considered information that may be disclosed by the Franchise Tax
Board under the authority of Section 19548 and may be disseminated by
the Franchise Tax Board accordingly for the purposes specified in
Sections 11478 and 11478.5 of the Welfare and Institutions Code (in
accordance with, and to the extent permitted by, Section 11478.1 of
the Welfare and Institutions Code and any other state or federal
law).
(i) A county may apply to the State Department of Social Services
for an exemption from subdivision (a). The State Department of
Social Services shall grant an exemption only if the county has a
program for collecting delinquent child support, including hardware
and software, that is similar or identical to the technology used by
the Franchise Tax Board in implementing its child support collections
program and the county program was in operation as of April 1, 1997.
SEC. 154. Section 19533 of the Revenue and Taxation Code is
amended to read:
19533. In the event the debtor has more than one debt being
collected by the Franchise Tax Board and the amount collected by the
Franchise Tax Board is insufficient to satisfy the total amount
owing, the amount collected shall be applied in the following
priority:
(a) Payment of any taxes, additions to tax, penalties, interest,
fees, or other amounts due and payable under Part 7.5 (commencing
with Section 13201), Part 10 (commencing with Section 17001), Part 11
(commencing with Section 23001), or this part.
(b) Payment of any debts referred for collection under Article 5
(commencing with Section 19271) of Chapter 5.
(c) Payment of delinquent wages collected pursuant to the Labor
Code.
(d) Payment of delinquencies collected under Section 10878.
(e) Payment of any amounts due that are referred for collection
under Article 5.5 (commencing with Section 19280) of Chapter 5.
(f) Payment of any amounts that are referred for collection
pursuant to Section 62.9 of the Labor Code.
(g) Payment of delinquent penalties collected for the Department
of Industrial Relations pursuant to the Labor Code.
(h) Payment of delinquent fees collected for the Department of
Industrial Relations pursuant to the Labor Code.
(i) Payment of delinquencies referred by the Student Aid
Commission pursuant to Section 16583.5 of the Government Code.
(j) Notwithstanding the payment priority established by this
section, voluntary payments made by an obligated parent for a child
support delinquency pursuant to subparagraph (B) of paragraph (1) of
subdivision (b) of Section 19271 shall not be applied pursuant to
this priority, but shall instead be applied solely to the child
support delinquency for which the voluntary payment was made.
SEC. 155. Section 19721.6 of the Revenue and Taxation Code is
amended and renumbered to read:
19271.6. (a) The Franchise Tax Board, through a cooperative
agreement with the State Department of Social Services, and in
coordination with financial institutions doing business in this
state, shall operate a Financial Institution Match System utilizing
automated data exchanges to the maximum extent feasible. The
Financial Institution Match System shall be implemented pursuant to
guidelines prescribed by the State Department of Social Services and
the Franchise Tax Board. These guidelines shall include a structure
by which financial institutions, or their designated data processing
agents, shall receive from the Franchise Tax Board the entire list of
past-due support obligors, which the institution shall match with
its own list of accountholders to identify past-due support obligor
accountholders at the institution. To the extent allowed by the
federal Personal Responsibility and Work Opportunity Reconciliation
Act of 1996, the guidelines shall include an option by which
financial institutions without the technical ability to process the
data exchange, or without the ability to employ a third-party data
processor to process the data exchange, may forward to the Franchise
Tax Board a list of all accountholders and their social security
numbers, so that the Franchise Tax Board shall match that list with
the entire list of past-due support obligors.
(b) The Financial Institution Match System shall not be subject to
any limitation set forth in Chapter 20 (commencing with Section
7460) of Division 7 of Title 1 of the Government Code. However, any
use of the information provided pursuant to this section for any
purpose other than the enforcement and collection of a child support
delinquency, as set forth in Section 19271, shall be a violation of
Section 19542.
(c) Each county shall compile a file of support obligors with
judgments and orders that are being enforced by district attorneys
pursuant to Section 11475.1 of the Welfare and Institutions Code, and
who are past due in the payment of their support obligations. The
file shall be compiled, updated, and forwarded to the Franchise Tax
Board, in accordance with the guidelines prescribed by the State
Department of Social Services and the Franchise Tax Board.
(d) To effectuate the Financial Institution Match System,
financial institutions subject to this section shall do all of the
following:
(1) Provide to the Franchise Tax Board on a quarterly basis the
name, record address and other addresses, social security number or
other taxpayer identification number, and other identifying
information for each noncustodial parent who maintains an account at
the institution and who owes past-due support, as identified by the
Franchise Tax Board by name and social security number or other
taxpayer identification number.
(2) In response to a notice or order to withhold issued by the
Franchise Tax Board, withhold from any accounts of the obligor the
amount of any past-due support stated on the notice or order and
transmit the amount to the Franchise Tax Board in accordance with
Section 18670 or 18670.5.
(e) Unless otherwise required by applicable law, a financial
institution furnishing a report or providing information to the
Franchise Tax Board pursuant to this section shall not disclose to a
depositor or an accountholder, or a codepositor or coaccountholder,
that the name, address, social security number, or other taxpayer
identification number or other identifying information of that person
has been received from or furnished to the Franchise Tax Board.
(f) A financial institution shall incur no obligation or liability
to any person arising from any of the following:
(1) Furnishing information to the Franchise Tax Board as required
by this section.
(2) Failing to disclose to a depositor or accountholder that the
name, address, social security number, or other taxpayer
identification number or other identifying information of that person
was included in the data exchange with the Franchise Tax Board
required by this section.
(3) Withholding or transmitting any assets in response to a notice
or order to withhold issued by the Franchise Tax Board as a result
of the data exchange. This paragraph shall not preclude any
liability that may result if the financial institution does not
comply with subdivision (b) of Section 18674.
(4) Any other action taken in good faith to comply with the
requirements of this section.
(g) Information required to be submitted to the Franchise Tax
Board pursuant to this section shall only be used by the Franchise
Tax Board to collect past-due support pursuant to Section 19271. If
the Franchise Tax Board has issued an earnings withholding order and
the condition described in subparagraph (C) of paragraph (1) of
subdivision (i) exists with respect to the obligor, the Franchise Tax
Board shall not use the information it receives under this section
to collect the past-due support from that obligor. The Franchise Tax
Board shall forward to the counties, in accordance with guidelines
prescribed by the State Department of Social Services and the
Franchise Tax Board, information obtained from the financial
institutions pursuant to this section. No county shall use this
information for directly levying on any account. Each county shall
keep the information confidential as provided by Section 11478.1 of
the Welfare and Institutions Code.
(h) For those noncustodial parents owing past-due support for
which there is a match under paragraph (1) of subdivision (d), the
past-due support at the time of the match shall be a delinquency
under this article for the purposes of the Franchise Tax Board taking
any collection action pursuant to Section 18670 or 18670.5.
(i) (1) Each county shall notify the Franchise Tax Board upon the
occurrence of the circumstances described in the following
subparagraphs with respect to an obligor of past-due support:
(A) All of the following apply:
(i) A court has ordered an obligor to make scheduled payments on a
child support arrearages obligation.
(ii) The obligor is in compliance with that order.
(B) An earnings assignment order or a notice of assignment that
includes an amount for past-due support has been served on the
obligated parent's employer and earnings are being withheld pursuant
to the earnings assignment order or a notice of assignment.
(C) At least 50 percent of the obligated parent's earnings are
being withheld for support.
(D) The obligor is less than 90 days delinquent in the payment of
any amount of support. For purposes of this subparagraph, any
delinquency existing at the time a case is received by a district
attorney shall not be considered until 90 days have passed from the
date of receipt.
(E) A child support delinquency need not be referred to the
Franchise Tax Board for collection if a jurisdiction outside this
state is enforcing the support order.
(2) Upon notification, the Franchise Tax Board shall not use the
information it receives under this section to collect any past-due
support from that obligor.
(j) Notwithstanding subdivision (i), the Franchise Tax Board may
use the information it receives under this section to collect any
past-due support at any time if a county requests action be taken.
(k) The Franchise Tax Board may not use the information it
receives under this section to collect any past-due support if a
county has applied for and received an exemption from the State
Department of Social Services as provided by subdivision (k) of
Section 19271, unless that county specifically requests collection
against that obligor. The Franchise Tax Board may not use the
information it receives under this section to collect any past-due
support if a county requests that action not be taken.
(l) For purposes of this section:
(1) "Account" means any demand deposit account, share or share
draft account, checking or negotiable withdrawal order account,
savings account, time deposit account, or a money market mutual fund
account, whether or not the account bears interest.
(2) "Financial institution" has the same meaning as defined in
Section 669A(d)(1) of Title 42 of the United States Code.
(3) "Past-due support" means any child support obligation that is
unpaid on the due date for payment.
(m) Out of any money received from the federal government for the
purpose of reimbursing financial institutions for their actual and
reasonable costs incurred in complying with this section, the state
shall reimburse those institutions. To the extent that money is not
provided by the federal government for that purpose, the state shall
not reimburse financial institutions for their costs in complying
with this section.
(n) On or before March 1, 1998, the Franchise Tax Board and the
Department of Social Services, in consultation with counties and
financial institutions, shall jointly propose an implementation plan
for inclusion in the annual Budget Act, or in other legislation that
would fund this program. The implementation plan shall take into
account the program's financial benefits, including the costs of all
participating private and public agencies. It is the intent of the
Legislature that this program shall result in a net savings to the
state and the counties.
SEC. 156. Section 41136 of the Revenue and Taxation Code is
amended to read:
41136. Funds in the State Emergency Telephone Number Account
shall, when appropriated by the Legislature, be spent solely for the
following purposes:
(a) To pay refunds authorized by this part.
(b) To pay the State Board of Equalization for the cost of the
administration of this part.
(c) To pay the Department of General Services for its costs in
administration of the "911" emergency telephone number system.
(d) To pay bills submitted to the Department of General Services
by service suppliers or communications equipment companies for the
installation and ongoing expenses for the following communications
services supplied local agencies in connection with the "911"
emergency phone number system:
(1) A basic system.
(2) A basic system with telephone central office identification.
(3) A system employing automatic call routing.
(4) Approved incremental costs.
(e) To pay claims of local agencies for approved incremental
costs, not previously compensated for by another governmental agency.
(f) To pay claims of local agencies for incremental costs and
amounts, not previously compensated for by another governmental
agency, incurred prior to the effective date of this part, for the
installation and ongoing expenses for the following communication
services supplied in connection with the "911" emergency phone number
system:
(1) A basic system.
(2) A basic system with telephone central office identification.
(3) A system employing automatic call routing.
(4) Approved incremental costs. Incremental costs shall not be
allowed unless the costs are concurred in by the Communications
Division.
(g) To pay the Division of Telecommunications of the Department of
General Services for the costs associated with the pilot program
authorized by Article 6.5 (commencing with Section 53125) of Chapter
1 of Part 1 of Division 2 of Title 5 of the Government Code.
SEC. 157. Section 1088.7 of the Unemployment Insurance Code is
amended to read:
1088.7. The Employment Development Department, in consultation
with the Department of Social Services and the Franchise Tax Board,
shall prepare and submit a study to the Governor and the Legislature
that identifies possible methods for establishing a state mechanism
for the reporting of the income of service-providers for the purpose
of collecting delinquent child support obligations. The study shall
include recommendations as to the most feasible and cost-effective
reporting methods. The study shall be submitted no later than June
30, 1998.
SEC. 158. Section 12514 of the Vehicle Code is amended to read:
12514. (a) Junior permits issued pursuant to Section 12513 shall
not be valid for a period exceeding that established on the original
request as the approximate date the minor's operation of a vehicle
will no longer be necessary. In any event, no permit shall be valid
on or after the 18th birthday of the applicant.
(b) The department may revoke any permit when to do so is
necessary for the welfare of the minor or in the interests of safety.
(c) If conditions or location of residence, which required the
minor's operation of a vehicle, change prior to expiration of the
permit, the department may cancel the permit.
(d) Upon a determination that the permittee has operated a vehicle
in violation of restrictions, the department shall revoke the
permit.
(e) A junior permit is a form of driver's license that shall
include all information required by subdivision (a) of Section 12811
except for an engraved picture or photograph of the permittee, and is
subject to all provisions of this code applying to driver's
licenses, except as otherwise provided in this section and Section
12513.
(f) An instruction permit valid for a period of not more than six
months may be issued after eligibility has been established under
Section 12513.
(g) The department shall cancel any permit six months from the
date of issuance unless the permittee has complied with one of the
conditions prescribed by paragraph (4) of subdivision (a) of Section
12814.6.
SEC. 159. Section 12523.6 of the Vehicle Code is amended to read:
12523.6. (a) (1) On and after March 1, 1998, no person who is
employed primarily as a driver of a motor vehicle for hire that is
used for the transportation of persons with developmental
disabilities, as defined in subdivision (a) of Section 4512 of the
Welfare and Institutions Code, shall operate that motor vehicle
unless that person has in his or her possession a valid driver's
license of the appropriate class endorsed for passenger
transportation and a valid special driver certificate issued by the
department.
(2) This subdivision only applies to a person who is employed by a
business or a nonprofit organization or agency.
(b) The special driver certificate shall be issued only to an
applicant who meets all of the following requirements:
(1) The applicant has cleared a criminal history background check
by the Department of Justice and, if applicable, by the Federal
Bureau of Investigation. Any required fingerprinting undertaken for
purposes of the criminal history background check shall be conducted
by the Department of the California Highway Patrol. Applicant
fingerprint forms shall be processed and returned to the area office
of the Department of the California Highway Patrol from which they
originated not later than 15 working days from the date on which the
fingerprint forms were received by the Department of Justice, unless
circumstances, other than the administrative duties of the Department
of Justice, warrant further investigation. Upon implementation of
an electronic fingerprinting system with terminals located statewide
and managed by the Department of Justice, the Department of Justice
shall ascertain the information required pursuant to this subdivision
within three working days.
(2) The applicant has paid, in addition to the fees authorized in
Section 2427, a fee of twenty-five dollars ($25) for an original
certificate and twelve dollars ($12) for the renewal of that
certificate to the Department of the California Highway Patrol.
(c) A certificate issued under this section shall not be deemed a
certification to operate a particular vehicle that otherwise requires
a driver's license or endorsement for a particular class under this
code.
(d) On or after March 1, 1998, no person who operates a business
or a nonprofit organization or agency shall employ a person who is
employed primarily as a driver of a motor vehicle for hire that is
used for the transportation of persons with developmental
disabilities unless the employed person operates the motor vehicle in
compliance with subdivision (a).
(e) Nothing in this section precludes an employer of persons who
are occasionally used as drivers of motor vehicles for the
transportation of persons with developmental disabilities from
requiring those persons, as a condition of employment, to obtain a
special driver certificate pursuant to this section or precludes any
volunteer driver from applying for a special driver certificate.
(f) As used in this section, a person is employed primarily as a
driver if that person performs at least 50 percent of his or her time
worked including, but not limited to, time spent assisting persons
onto and out of the vehicle, or at least 20 hours a week, whichever
is less, as a compensated driver of a motor vehicle for hire for the
transportation of persons with developmental disabilities.
(g) This section does not apply to any person who has successfully
completed a background investigation prescribed by law, including,
but not limited to, health care transport vehicle operators, or to
the operator of a taxicab regulated pursuant to Section 21100. This
section does not apply to a person who holds a valid certificate,
other than a farm labor vehicle driver certificate, issued under
Section 12517.4 or 12527. This section does not apply to a driver
who provides transportation on a noncommercial basis to persons with
developmental disabilities.
SEC. 160. Section 14602.7 of the Vehicle Code is amended to read:
14602.7. (a) A magistrate presented with the affidavit of a peace
officer establishing reasonable cause to believe that a vehicle,
described by vehicle type and license number, was an instrumentality
used in the peace officer's presence in violation of Sections 2800.1,
2800.2, 2800.3, or 23103, shall issue a warrant or order authorizing
any peace officer to immediately seize and cause the removal of the
vehicle. The warrant or court order may be entered into a
computerized data base. A vehicle so impounded may be impounded for
a period not to exceed 30 days.
The impounding agency, within two working days of impoundment,
shall send a notice by certified mail, return receipt requested, to
the legal owner of the vehicle, at the address obtained from the
department, informing the owner that the vehicle has been impounded
and providing the owner with a copy of the warrant or court order.
Failure to notify the legal owner within two working days shall
prohibit the impounding agency from charging for more than 15 days
impoundment when a legal owner redeems the impounded vehicle.
(b) (1) An impounding agency shall release a vehicle to the
registered owner or his or her agent prior to the end of the
impoundment period and without the permission of the magistrate
authorizing the vehicle's seizure under any of the following
circumstances:
(A) When the vehicle is a stolen vehicle.
(B) When the vehicle is subject to bailment and is driven by an
unlicensed employee of the business establishment, including a
parking service or repair garage.
(C) When the registered owner of the vehicle causes a peace
officer to reasonably believe, based on the totality of the
circumstances, that the registered owner was not the driver who
violated Section 2800.1, 2800.2, or 2800.3, the agency shall
immediately release the vehicle to the registered owner or his or her
agent.
(2) No vehicle shall be released pursuant to this subdivision,
except upon presentation of the registered owner's or agent's
currently valid driver's license to operate the vehicle and proof of
current vehicle registration, or upon order of the court.
(c) (1) Whenever a vehicle is impounded under this section, the
magistrate ordering the storage shall provide the vehicle's
registered and legal owners of record, or their agents, with the
opportunity for a poststorage hearing to determine the validity of
the storage.
(2) A notice of the storage shall be mailed or personally
delivered to the registered and legal owners within 48 hours after
issuance of the warrant or court order, excluding weekends and
holidays, by the person or agency executing the warrant or court
order, and shall include all of the following information:
(A) The name, address, and telephone number of the agency
providing the notice.
(B) The location of the place of storage and a description of the
vehicle, which shall include, if available, the name or make, the
manufacturer, the license plate number, and the mileage of the
vehicle.
(C) A copy of the warrant or court order and the peace officer's
affidavit, as described in subdivision (a).
(D) A statement that, in order to receive their poststorage
hearing, the owners, or their agents, are required to request the
hearing from the magistrate issuing the warrant or court order in
person, in writing, or by telephone, within 10 days of the date of
the notice.
(3) The poststorage hearing shall be conducted within two court
days after receipt of the request for the hearing.
(4) At the hearing, the magistrate may order the vehicle released
if he or she finds any of the circumstances described in subdivision
(b) or (e) that allow release
of a vehicle by the impounding agency. The magistrate may also
consider releasing the vehicle when the continued impoundment will
cause undue hardship to persons dependent upon the vehicle for
employment or to a person with a community property interest in the
vehicle.
(5) Failure of either the registered or legal owner, or his or her
agent, to request, or to attend, a scheduled hearing satisfies the
poststorage hearing requirement.
(6) The agency employing the peace officer who caused the
magistrate to issue the warrant or court order shall be responsible
for the costs incurred for towing and storage if it is determined in
the poststorage hearing that reasonable grounds for the storage are
not established.
(d) The registered owner or his or her agent is responsible for
all towing and storage charges related to the impoundment, and any
administrative charges authorized under Section 22850.5.
(e) A vehicle removed and seized under subdivision (a) shall be
released to the legal owner of the vehicle or the legal owner's agent
prior to the end of the impoundment period and without the
permission of the magistrate authorizing the seizure of the vehicle
if all of the following conditions are met:
(1) The legal owner is a motor vehicle dealer, bank, credit union,
acceptance corporation, or other licensed financial institution
legally operating in this state or is another person, not the
registered owner, holding a financial interest in the vehicle.
(2) The legal owner or the legal owner's agent pays all towing and
storage fees related to the seizure of the vehicle. No lien sale
processing fees shall be charged to the legal owner who redeems the
vehicle prior to the 15th day of impoundment.
(3) The legal owner or the legal owner's agent presents
foreclosure documents or a certificate of repossession and a
document of title showing proof of legal ownership for the vehicle.
(f) (1) A legal owner or the legal owner's agent that obtains
release of the vehicle pursuant to subdivision (e) shall not release
the vehicle to the registered owner of the vehicle or any agents of
the registered owner, unless a registered owner is a rental car
agency, until the termination of the impoundment period.
(2) The legal owner or the legal owner's agent shall not
relinquish the vehicle to the registered owner until the registered
owner or that owner's agent presents his or her valid driver's
license or valid temporary driver's license to the legal owner or the
legal owner's agent. The legal owner or the legal owner's agent
shall make every reasonable effort to ensure that the license
presented is valid.
(3) Prior to relinquishing the vehicle, the legal owner may
require the registered owner to pay all towing and storage charges
related to the impoundment and the administrative charges authorized
under Section 22850.5 that were incurred by the legal owner in
connection with obtaining the custody of the vehicle.
(g) (1) A vehicle impounded and seized under subdivision (a) shall
be released to a rental car agency prior to the end of the
impoundment period if the agency is either the legal owner or
registered owner of the vehicle and the agency pays all towing and
storage fees related to the seizure of the vehicle.
(2) The owner of a rental vehicle that was seized under this
section may continue to rent the vehicle upon recovery of the
vehicle. However, the rental car agency shall not rent another
vehicle to the driver who used the vehicle that was seized to evade a
police officer until 30 days after the date that the vehicle was
seized.
(3) The rental car agency may require the person to whom the
vehicle was rented and who evaded the peace officer to pay all towing
and storage charges related to the impoundment and any
administrative charges authorized under Section 22850.5 that were
incurred by the rental car agency in connection with obtaining
custody of the vehicle.
(h) Notwithstanding any other provision of this section, the
registered owner and not the legal owner shall remain responsible for
any towing and storage charges related to the impoundment and the
administrative charges authorized under Section 22850.5 and any
parking fines, penalties, and administrative fees incurred by the
registered owner.
(i) (1) This section does not apply to vehicles abated under the
Abandoned Vehicle Abatement Program pursuant to Sections 22660 to
22668, inclusive, and Section 22710, or to vehicles impounded for
investigation pursuant to Section 22655, or to vehicles removed from
private property pursuant to Section 22658.
(2) This section does not apply to abandoned vehicles removed
pursuant to Section 22669 that are determined by the public agency to
have an estimated value of three hundred dollars ($300) or less.
SEC. 161. Section 1811 of the Water Code is amended to read:
1811. As used in this article, the following terms shall have the
following meanings:
(a) "Bona fide transferor" means a person or public agency as
defined in Section 20009 of the Government Code with a contract for
sale of water that may be conditioned upon the acquisition of
conveyance facility capacity to convey the water that is the subject
of the contract.
(b) "Emergency" means a sudden occurrence such as a storm, flood,
fire, or an unexpected equipment outage impairing the ability of a
person or public agency to make water deliveries.
(c) "Fair compensation" means the reasonable charges incurred by
the owner of the conveyance system, including capital, operation,
maintenance, and replacement costs, increased costs from any
necessitated purchase of supplemental power, and including reasonable
credit for any offsetting benefits for the use of the conveyance
system.
(d) "Replacement costs" mean the reasonable portion of costs
associated with material acquisition for the correction of
irreparable wear or other deterioration of conveyance facility parts
that have an anticipated life that is less than the conveyance
facility repayment period and which costs are attributable to the
proposed use.
(e) "Unused capacity" means space that is available within the
operational limits of the conveyance system and that the owner is not
using during the period for which the transfer is proposed and which
space is sufficient to convey the quantity of water proposed to be
transferred.
SEC. 162. Section 13274 of the Water Code, as amended by Section
154 of Chapter 124 of the Statutes of 1996, is amended to read:
13274. (a) (1) The state board or a regional board, upon
receipt of applications for waste discharge requirements for
discharges of dewatered, treated, or chemically fixed sewage sludge
and other biological solids, shall prescribe general waste discharge
requirements for that sludge and those other solids. General waste
discharge requirements shall replace individual waste discharge
requirements for sewage sludge and other biological solids, and their
prescription shall be considered to be a ministerial action.
(2) The general waste discharge requirements shall set minimum
standards for agronomic applications of sewage sludge and other
biological solids and the use of that sludge and those other solids
as a soil amendment or fertilizer in agriculture, forestry, and
surface mining reclamation, and may permit the transportation of that
sludge and those other solids and the use of that sludge and those
other solids at more than one site. The requirements shall include
provisions to mitigate significant environmental impacts, potential
soil erosion, odors, the degradation of surface water quality or fish
or wildlife habitat, the accidental release of hazardous substances,
and any potential hazard to the public health or safety.
(b) The state board or a regional board, in prescribing general
waste discharge requirements pursuant to this section, shall comply
with Division 13 (commencing with Section 21000) of the Public
Resources Code and guidelines adopted pursuant to that division, and
shall consult with the State Air Resources Board, the Department of
Food and Agriculture, and the California Integrated Waste Management
Board.
(c) The state board or a regional board may charge a reasonable
fee to cover the costs incurred by the board in the administration of
the application process relating to the general waste discharge
requirements prescribed pursuant to this section.
(d) Notwithstanding any other provision of law, except as
specified in subdivisions (f) to (i), inclusive, general waste
discharge requirements prescribed by a regional board pursuant to
this section supersede regulations adopted by any other state agency
to regulate sewage sludge and other biological solids applied
directly to agricultural lands at agronomic rates.
(e) The state board or a regional board shall review general waste
discharge requirements for possible amendment upon the request of
any state agency, including, but not limited to, the Department of
Food and Agriculture and the State Department of Health Services, if
the board determines that the request is based on new information.
(f) Nothing in this section is intended to affect the jurisdiction
of the California Integrated Waste Management Board to regulate the
handling of sewage sludge or other biological solids for composting,
deposit in a landfill, or other use.
(g) Nothing in this section is intended to affect the jurisdiction
of the State Air Resources Board or an air pollution control
district or air quality management district to regulate the handling
of sewage sludge or other biological solids for incineration.
(h) Nothing in this section is intended to affect the jurisdiction
of the Department of Food and Agriculture in enforcing Sections
14591 and 14631 of the Food and Agricultural Code and any regulations
adopted pursuant to those sections, regarding the handling of sewage
sludge and other biological solids sold or used as fertilizer or as
a soil amendment.
(i) Nothing in this section restricts the authority of a local
government agency to regulate the application of sewage sludge and
other biological solids to land within the jurisdiction of that
agency, including, but not limited to, the planning authority of the
Delta Protection Commission, the resource management plan of which is
required to be implemented by local government general plans.
SEC. 163. Section 827.6 of the Welfare and Institutions Code is
amended to read:
827.6. (a) Notwithstanding any other provision of law, the
presiding judge of the juvenile court may authorize a law enforcement
agency to disclose only the name and other information necessary to
identify a minor who is lawfully sought for arrest as a suspect in
the commission of any felony listed in subdivision (b) of Section 707
where the disclosure is imperative for the apprehension of the
minor. The court order shall be solely for the limited purpose of
enabling law enforcement to apprehend the minor, and shall contain
the exact nature of the data to be released. In determining whether
to authorize the release of information pursuant to this section, the
court shall balance the confidentiality interests of the minor under
this chapter, the due diligence of law enforcement to apprehend the
minor prior to the filing of a petition for disclosure, and the
public safety interests raised by the facts of the minor's case.
(b) When seeking an order of disclosure pursuant to this section,
in addition to any other information requested by the presiding
judge, a law enforcement agency shall submit to the court a verified
declaration and any supporting exhibits indicating the probable cause
for the lawful arrest of the minor, efforts to locate the minor,
including, but not limited to, persons contacted, surveillance
activity, search efforts, any other pertinent information, all
evidence regarding why the order is critical, including a minor's
danger to himself or herself, the minor's danger to others, the minor'
s flight risk, and any other information indicating the urgency for a
court order.
SEC. 164. Section 11478.2 of the Welfare and Institutions Code is
amended to read:
11478.2. (a) In all actions involving paternity or support,
including, but not limited to, proceedings under the Family Code, or
under this division, the district attorney and Attorney General
represent the public interest in establishing, modifying, and
enforcing support obligations. No attorney-client relationship shall
be deemed to have been created between the district attorney or
Attorney General and any person by virtue of the action of the
district attorney or the Attorney General in carrying out these
statutory duties.
(b) The provisions of subdivision (a) are declarative of existing
law.
(c) In all requests for services of the district attorney or
Attorney General pursuant to Section 11475.1 relating to actions
involving paternity or support, not later than the same day an
individual makes a request for these services in person, and not
later than five working days after either (1) a case is referred for
services from the county welfare department, (2) receipt of a request
by mail for an application for services, or (3) an individual makes
a request for services by telephone, the district attorney or
Attorney General shall give notice to the individual requesting
services or on whose behalf services have been requested that the
district attorney or Attorney General does not represent the
individual or the children who are the subject of the case, that no
attorney-client relationship exists between the district attorney or
Attorney General and those persons, and that no representation or
relationship of that type shall arise if the district attorney or
Attorney General provides the services requested. Notice shall be in
bold print and in plain English and shall be translated into the
language understood by the recipient when reasonable. The notice
shall include the advice that the absence of an attorney-client
relationship means that communications from the recipient are not
privileged and that the district attorney or Attorney General may
provide support enforcement services to the other parent in the
future.
(d) The district attorney or Attorney General shall give the
notice required pursuant to subdivision (c) to all recipients of
services under Section 11475.1 who have not otherwise been provided
that notice, not later than the date of the next annual notice
required under Section 11476.2. This notice shall include
notification to the recipient of services under Section 11475.1 that
the recipient may inspect the clerk's file at the county clerk's
office, and that, upon request, the district attorney, or, if
appropriate, the Attorney General, will furnish a copy of the most
recent order entered in the case.
(e) The district attorney, or, if appropriate, the Attorney
General, shall serve a copy of the complaint for paternity or
support, or both on recipients of support services under Section
11475.1, as specified in paragraph (2) of subdivision (e) of Section
11350.1. A notice shall accompany the complaint which informs the
recipient that the district attorney or Attorney General may enter
into a stipulated order resolving the complaint, and that if the
recipient wishes to assist the prosecuting attorney, he or she should
send all information on the noncustodial parent's earnings and
assets to the prosecuting attorney.
(f) (1) The district attorney or Attorney General shall provide
written notice to recipients of services under Section 11475.1 of the
initial date and time, and purpose of every hearing in a civil
action for paternity or support. The notice shall include the
following language:
IMPORTANT NOTICE
It may be important that you attend the hearing. The district
attorney does not represent you or your children. You may have
information about the noncustodial parent, such as information about
his or her income or assets, or your need for support that will not
be presented to the court unless you attend the hearing. You have
the right to be heard in court and tell the court what you think the
court should do with the child support order.
If you have a court order for support that arose as part of your
divorce, this hearing could change your rights or your children's
rights to support. You have the right to attend the hearing and, the
right, to be heard.
If you would like to attend the hearing and be told about any changes
to the hearing date or time, notify this office by ____. The
district attorney or Attorney General will then have to tell you
about any changes to the hearing date or time.
(2) The notice shall state the purpose of the hearing or be
attached to the motion or other pleading which caused the hearing to
be scheduled.
(3) The notice shall be provided separate from all other material
and shall be in at least 14-point type. The failure of the district
attorney or Attorney General to comply with this subdivision does not
affect the validity of any order.
(4) The notice shall be provided not later than seven calendar
days prior to the hearing, or, if the district attorney or Attorney
General receives notice of the hearing less than seven days prior to
the hearing, within two days of the receipt by the district attorney
or Attorney General of the notice of the hearing.
(5) The district attorney or Attorney General shall, in order to
implement this subdivision, make reasonable efforts to ensure that
the district attorney or Attorney General has current addresses for
recipients of support enforcement services.
(g) The district attorney or Attorney General shall give notice to
recipients of services under Section 11475.1 of every order obtained
by the district attorney or Attorney General that establishes or
modifies the support obligation for the recipient or the children who
are the subject of the order, by sending a copy of the order to the
recipient. The notice shall be made within 30 calendar days after
the order has been filed. The district attorney or Attorney General
shall also give notice to these recipients of every order obtained in
any other jurisdiction, that establishes or modifies the support
obligation for the recipient or the children who are the subject of
the order, and which is received by the district attorney or Attorney
General, by sending a copy of the order to the recipient within the
timeframe specified by federal law after the district attorney or
Attorney General has received a copy of the order. In any action
enforced under Chapter 6 (commencing with Section 4900) of Part 5 of
Division 9 of the Family Code, the notice shall be made in compliance
with the requirements of that chapter. The failure of the district
attorney or Attorney General to comply with this subdivision does not
affect the validity of any order.
(h) The district attorney or Attorney General shall give notice to
the noncustodial parent against whom a civil action is filed that
the district attorney or Attorney General is not the attorney
representing any individual, including, but not limited to, the
custodial parent, the child, or the noncustodial parent.
(i) Nothing in this section shall be construed to preclude any
person who is receiving services under Section 11475.1 from filing
and prosecuting an independent action to establish, modify, and
enforce an order for current support on behalf of himself or herself
or a child if that person is not receiving public assistance.
(j) A person who is receiving services under Section 11475.1 but
who is not currently receiving public assistance on his or her own
behalf or on behalf of a child shall be asked to execute, or consent
to, any stipulation establishing or modifying a support order in any
action in which that person is named as a party, before the
stipulation is filed. The district attorney or Attorney General
shall not submit to the court for approval a stipulation to establish
or modify a support order in that type of action without first
obtaining the signatures of all parties to the action, their
attorneys of record, or persons authorized to act on their behalf.
(k) The district attorney or Attorney General shall not enter into
a stipulation that reduces the amount of past due support, including
interest and penalties accrued pursuant to an order of current
support, on behalf of a person who is receiving support enforcement
services under Section 11475.1 and who is owed support arrearages
that exceed unreimbursed public assistance paid to the recipient of
the support enforcement services, without first obtaining the consent
of the person who is receiving services under Section 11475.1 on his
or her own behalf or on behalf of the child.
(l) The notices required in this section shall be provided in the
following manner:
(1) In all cases in which the person receiving services under
Section 11475.1 resides in California, notice shall be provided by
mailing the item by first-class mail to the last known address of, or
personally delivering the item to, that person.
(2) In all actions enforced under Chapter 6 (commencing with
Section 4900) of Part 5 of Division 9 of the Family Code, unless
otherwise specified, notice shall be provided by mailing the item by
first-class mail to the initiating court.
(m) Notwithstanding any other provision of this section, the
notices provided for pursuant to subdivisions (c) to (g), inclusive,
shall not be required in foster care cases.
SEC. 165. Section 3 of Chapter 708 of the Statutes of 1997 is
amended to read:
Sec. 3. (a) Notwithstanding Sections 46201, 46202, and 46206 of
the Education Code, the school districts identified in subdivision
(b) which failed to maintain the level of instructional minutes
required in paragraph (3) of subdivision (a) of Section 46201 of the
Education Code in any of the fiscal years 1990-91 to 1994-95,
inclusive, or with respect to the Ferndale Unified School District,
the fiscal years 1990-91 to 1995-96, inclusive, and subject to fiscal
penalties resulting from audits of instructional minutes, shall pay
the lesser of one-quarter of the required fiscal assessment or 5
percent of the total revenue limit of the district commencing with
the 1997-98 fiscal year and continuing until the full amount of the
required fiscal assessment is paid. The Superintendent of Public
Instruction shall make the necessary adjustments to facilitate
withholding the appropriate amounts from each school district's
apportionments.
(b) The following school districts are subject to subdivision (a):
(1) Butte Valley Unified School District.
(2) Calaveras Unified School District.
(3) Etna Union High School District.
(4) Ferndale Unified School District.
(5) Fort Sage Unified School District.
(6) Graves Elementary School District.
(7) Los Angeles Unified School District.
(8) Parlier Unified School District.
(9) Siskiyou Union High School District.
(c) In addition to the amount specified in subdivision (a), the
Graves Elementary School District shall have one-half the amount
specified in subdivision (b) of Section 41420 of the Education Code
withheld from its apportionments on the same terms as specified in
subdivision (a), if the district failed to comply with the 175-day
minimum school year in any school year described in subdivision (a).
SEC. 166. Any section of any act enacted by the Legislature during
the 1998 calendar year that takes effect on or before January 1,
1999, and that amends, amends and renumbers, adds, repeals and adds,
or repeals a section that is amended, amended and renumbered,
repealed and added, or repealed by this act, shall prevail over this
act, whether that act is enacted prior to, or subsequent to, the
enactment of this act. The repeal, or repeal and addition, of any
article, chapter, part, title, or division of any code by this act
shall not become operative if any section of any other act that is
enacted by the Legislature during the 1998 calendar year and takes
effect on or before January 1, 1999, amends, amends and renumbers,
adds, repeals and adds, or repeals any section contained in that
article, chapter, part, title, or division.