BILL NUMBER: SB 947 CHAPTERED
BILL TEXT
CHAPTER 17
FILED WITH SECRETARY OF STATE MAY 30, 1997
APPROVED BY GOVERNOR MAY 30, 1997
PASSED THE ASSEMBLY MAY 15, 1997
PASSED THE SENATE APRIL 10, 1997
AMENDED IN SENATE MARCH 31, 1997
INTRODUCED BY Committee on Judiciary (Senators Burton (Chair),
Calderon, Lee, Leslie, Lockyer, O'Connell, Sher, and Wright)
FEBRUARY 27, 1997
An act to amend Sections 30, 1680, 2052.5, 2365, 3041.1, 3041.3,
7044.2, 9884, 10250.2, 17206, 24071.2, and 25662 of, and to amend and
renumber Section 11018.11 of, the Business and Professions Code, to
amend Sections 1365 and 1375 of, and to amend and renumber Sections
1861.607 and 1861.608 of, the Civil Code, to amend Section 1201 of
the Commercial Code, to amend Sections 8450, 15301, 15320, 15327,
15356, 15357, 15359, 15359.2, 42238.145, 44254, 52335.9, 52487, and
76002 of, to amend and renumber the heading of Article 6 (commencing
with Section 60350) of Chapter 2 of Part 33 of, and to repeal Section
87869 of, the Education Code, to amend Sections 2157 and 12106 of,
and to repeal the heading of Division 0.5 of, the Elections Code, to
amend and renumber the heading of Division 14 (commencing with
Section 10100) of the Family Code, to amend Sections 17207, 21301,
and 21304 of the Financial Code, to amend Sections 3332, 12648,
12815, 13144, and 46003.5 of the Food and Agricultural Code, to amend
Sections 951, 8670.7, 8670.13.2, 8670.21, 11504, 15363.7, 15379.28,
30054, 30061, 30064, 50030, and 65850.2 of the Government Code, to
amend Sections 1226, 1250.2, 1367, 1585, 11758.46, 13113, 19183,
19825, 19881, 25143.2, 25179.8, 25299.92, 25330.4, 25532, 25534,
25538, 25548.1, 33459.1, 33493.4, 34120, 41751, 44081, 44243.5, and
129885 of, to amend and renumber Sections 11527.3 and 27604 of, and
to amend the heading of Article 11 (commencing with Section 25299.90)
of Chapter 6.75 of Division 20 of, the Health and Safety Code, to
amend Sections 742.33, 10123.13, 10145.3, 10164.2, 10509.963, and
10509.975 of the Insurance Code, to amend Sections 1777.5 and 6500 of
the Labor Code, to amend Sections 186.2, 273.1, 290, 290.4, 311,
350, 831.5, 1295, 1529, 4415, 7500, 7501, 7515, 11106, 12033, 12071,
12072, 12078, 12084, and 12403.7 of, to amend the heading of Article
8 (commencing with Section 12800) of Chapter 6 of Title 2 of Part 4
of, and to repeal Sections 269, 312.6, 312.7, and 667.61 of, the
Penal Code, to amend Sections 4576.1, 6817, 42010, 42350, 43210, and
43211 of, and to repeal Section 3493 of, the Public Resources Code,
to amend Sections 368, 489.1, 740.4, 5322, and 125105 of the Public
Utilities Code, to amend Sections 401.11, 2188.8, 2611.7, 4528,
10753, and 19141.6 of, to amend and renumber Sections 410.10 and
19442 of, to amend, repeal, and add Section 69.5 of, and to repeal
Section 401.10 of, the Revenue and Taxation Code, to amend Sections
3016, 22651.2, and 40513 of the Vehicle Code, to amend Section
13399.3 of the Water Code, to amend Sections 207.1, 366.21, 5778,
7325, 11462, and 14490 of, and to repeal Article 4 (commencing with
Section 6600) of Chapter 2 of Part 2 of Division 6 of, the Welfare
and Institutions Code, and to amend Section 6 of Chapter 920 of the
Statutes of 1994, Section 5 of Chapter 76 of the Statutes of 1996,
Section 1 of Chapter 663 of the Statutes of 1996, and Section 1 of
Chapter 947 of the Statutes of 1996, relating to maintenance of the
codes.
LEGISLATIVE COUNSEL'S DIGEST
SB 947, 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 1997, and would not make any
substantive change in the law.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 30 of the Business and Professions Code is
amended to read:
30. (a) Notwithstanding any other provision of law, any board, as
defined in Section 22, the State Bar, and the Department of Real
Estate shall, at the time of issuance or renewal of the license,
require that any licensee provide its federal employer identification
number if the licensee is a partnership or his or her social
security number for all others.
(b) Any licensee failing to provide the federal identification
number or social security number shall be reported by the licensing
board to the Franchise Tax Board and, if failing to so provide after
notification pursuant to paragraph (1) of subdivision (b) of Section
19528 of the Revenue and Taxation Code, shall be subject to the
penalty provided in paragraph (2) of subdivision (b) of Section 19528
of the Revenue and Taxation Code.
(c) In addition to the penalty specified in subdivision (b), a
licensing board may not process any application for an original
license or for renewal of a license unless the applicant or licensee
provides its federal employer identification number or social
security number where requested on the application.
(d) A licensing board shall, upon request of the Franchise Tax
Board, furnish to the Franchise Tax Board the following information
with respect to every licensee:
(1) Name.
(2) Address or addresses of record.
(3) Federal employer identification number if the entity is a
partnership or social security number for all others.
(4) Type of license.
(5) Effective date of license or renewal.
(6) Expiration date of license.
(7) Whether license is active or inactive, if known.
(8) Whether license is new or renewal.
(e) For the purposes of this section:
(1) "Licensee" means any entity, other than a corporation,
authorized by a license, certificate, registration, or other means to
engage in a business or profession regulated by this code or
referred to in Section 1000 or 3600.
(2) "License" includes a certificate, registration, or any other
authorization needed to engage in a business or profession regulated
by this code or referred to in Section 1000 or 3600.
(3) "Licensing board" means any board, as defined in Section 22,
the State Bar, and the Department of Real Estate.
(f) The reports required under this section shall be filed on
magnetic media or in other machine-readable form, according to
standards furnished by the Franchise Tax Board.
(g) Licensing boards shall provide to the Franchise Tax Board the
information required by this section at a time that the Franchise Tax
Board may require.
(h) Notwithstanding Chapter 3.5 (commencing with Section 6250) of
Division 7 of Title 1 of the Government Code, the social security
number and federal employer identification number furnished pursuant
to this section shall not be deemed to be a public record and shall
not be open to the public for inspection.
(i) Any deputy, agent, clerk, officer, or employee of any
licensing board described in subdivision (a), or any former officer
or employee or other individual who, in the course of his or her
employment or duty, has or has had access to the information required
to be furnished under this section, may not disclose or make known
in any manner that information, except to the Franchise Tax Board as
provided in this section, or as provided in subdivision (k).
(j) It is the intent of the Legislature in enacting this section
to utilize the social security account number or federal employer
identification number for the purpose of establishing the
identification of persons affected by state tax laws and for purposes
of compliance with Section 11350.6 of the Welfare and Institutions
Code and, to that end, the information furnished pursuant to this
section shall be used exclusively for those purposes.
(k) If the board utilizes a national examination to issue a
license, and if a reciprocity agreement or comity exists between the
State of California and the state requesting release of the social
security number, any deputy, agent, clerk, officer, or employee of
any licensing board described in subdivision (a) may release a social
security number to an examination or licensing entity, only for the
purpose of verification of licensure or examination status.
SEC. 2. Section 1680 of the Business and Professions Code is
amended to read:
1680. Unprofessional conduct by a person licensed under this
chapter is defined as, but is not limited to, any one of the
following:
(a) The obtaining of any fee by fraud or misrepresentation.
(b) The employment, directly or indirectly, of any student or
suspended or unlicensed dentist to practice dentistry as defined in
this chapter.
(c) The aiding or abetting of any unlicensed person to practice
dentistry.
(d) The aiding or abetting of a licensed person to practice
dentistry unlawfully.
(e) The committing of any act or acts of gross immorality
substantially related to the practice of dentistry.
(f) The use of any false, assumed, or fictitious name, either as
an individual, firm, corporation, or otherwise, or any name other
than the name under which he or she is licensed to practice, in
advertising or in any other manner indicating that he or she is
practicing or will practice dentistry, except that name specified in
a valid permit issued pursuant to Section 1701.5.
(g) The practice of accepting or receiving any commission or the
rebating in any form or manner of fees for professional services,
radiograms, prescriptions, or other services or articles supplied to
patients.
(h) The making use by the licentiate or any agent of the
licentiate of any advertising statements of a character tending to
deceive or mislead the public.
(i) The advertising of either professional superiority or the
advertising of performance of professional services in a superior
manner. This subdivision does not prohibit advertising permitted by
subdivision (h) of Section 651.
(j) The employing or the making use of solicitors.
(k) The advertising in violation of Section 651.
(l) The advertising to guarantee any dental service, or to perform
any dental operation painlessly. This subdivision does not prohibit
advertising permitted by Section 651.
(m) The violation of any of the provisions of law regulating the
procurement, dispensing, or administration of dangerous drugs, as
defined in Article 7 (commencing with Section 4211) of Chapter 9, or
controlled substances, as defined in Division 10 (commencing with
Section 11000) of the Health and Safety Code.
(n) The violation of any of the provisions of this division.
(o) The permitting of any person to operate dental radiographic
equipment who has not met the requirements of Section 1656.
(p) The clearly excessive prescribing or administering of drugs or
treatment, the clearly excessive use of diagnostic procedures, or
the clearly excessive use of diagnostic or treatment facilities, as
determined by the customary practice and standards of the dental
profession.
Any person who violates this subdivision is guilty of a
misdemeanor and shall be punished by a fine of not less than one
hundred dollars ($100) or more than six hundred dollars ($600), or by
imprisonment for a term of not less than 60 days or more than 180
days, or by both a fine and imprisonment.
(q) The use of threats or harassment against any patient or
licentiate for providing evidence in any possible or actual
disciplinary action, or other legal action; or the discharge of an
employee primarily based on the employee's attempt to comply with
this chapter or to aid in that compliance.
(r) Suspension or revocation of a license issued, or other
discipline imposed, by another state or territory on grounds that
would be the basis of discipline in this state.
(s) The alteration of a patient's record with intent to deceive.
(t) Unsanitary or unsafe office conditions, as determined by the
customary practice and standards of the dental profession.
(u) The abandonment of the patient by the licentiate, without
written notice to the patient that treatment is to be discontinued
and before the patient has ample opportunity to secure the services
of another dentist and provided the health of the patient is not
jeopardized.
(v) The willful misrepresentation of facts relating to a
disciplinary action to the patients of a disciplined licentiate.
(w) Use of fraud in the procurement of any license issued pursuant
to this chapter.
(x) Any action or conduct that would have warranted the denial of
the license.
(y) The aiding or abetting of a licensed dentist or dental
auxiliary to practice dentistry in a negligent or incompetent manner.
(z) The failure to report to the board in writing within seven
days either: (1) the death of his or her patient during the
performance of any dental procedure, or (2) the discovery of the
death of a patient whose death is causally related to a dental
procedure performed by him or her.
(aa) Participating in or operating any group advertising and
referral services that violate Section 650.2.
(bb) The failure to use a fail-safe machine with an appropriate
exhaust system in the administration of nitrous oxide. The board
shall, by regulation, define what constitutes a fail-safe machine.
(cc) Engaging in the practice of dentistry with an expired
license.
(dd) Except for good cause, the knowing failure to protect
patients by failing to follow infection control guidelines of the
board, thereby risking transmission of blood-borne infectious
diseases from dentist or dental auxiliary to patient, from patient to
patient, and from patient to dentist or dental auxiliary. In
administering this subdivision, the board shall consider referencing
the standards, regulations, and guidelines of the State Department of
Health Services developed pursuant to Section 1250.11 of the Health
and Safety Code and the standards, guidelines, and regulations
developed pursuant to the California Occupational Safety and Health
Act of 1973 (Part 1 (commencing with Section 6300), Division 5, Labor
Code) for preventing the transmission of HIV, Hepatitis B, and other
blood-borne pathogens in health care settings. As necessary, the
board shall consult with the California Medical Board, the Board of
Podiatric Medicine, the Board of Registered Nursing, and the Board of
Vocational Nurse and Psychiatric Technician Examiners, to encourage
appropriate consistency in the implementation of this subdivision.
The board shall seek to ensure that licentiates and others
regulated by the board are informed of the responsibility of
licentiates and others to follow infection control guidelines, and of
the most recent scientifically recognized safeguards for minimizing
the risk of transmission of blood-borne infectious diseases.
(ee) The utilization by a licensed dentist of any person to
perform the functions of a registered dental assistant, registered
dental assistant in extended functions, registered dental hygienist,
or registered dental hygienist in extended functions who, at the time
of initial employment, does not possess a current, valid license to
perform those functions.
SEC. 3. Section 2052.5 of the Business and Professions Code is
amended to read:
2052.5. (a) The proposed registration program developed pursuant
to subdivision (b) shall provide that, for purposes of the proposed
registration program:
(1) A physician and surgeon practices medicine in this state
across state lines when that person is located outside of this state
but, through the use of any medium, including an electronic medium,
practices or attempts to practice, or advertises or holds himself or
herself out as practicing, any system or mode of treating the sick or
afflicted in this state, or diagnoses, treats, operates for, or
prescribes for any ailment, blemish, deformity, disease,
disfigurement, disorder, injury, or other physical or mental
condition of any person in this state.
(2) A doctor of podiatric medicine practices podiatric medicine in
this state across state lines when that person is located outside of
this state but, through the use of any medium, including an
electronic medium, practices or attempts to practice podiatric
medicine, as defined in Section 2472, in this state.
(3) The proposed registration program shall not apply to any
consultation described in Section 2060.
(b) The board may, at its discretion, develop a proposed
registration program to permit a physician and surgeon, or a doctor
of podiatric medicine, located outside this state to register with
the board to practice medicine or podiatric medicine in this state
across state lines.
(1) The proposed registration program shall include proposed
requirements for registration, including, but not limited to,
licensure in the state or country where the physician and surgeon, or
the doctor of podiatric medicine, resides, and education and
training requirements.
(2) The proposed registration program may also include all of the
following: (A) standards for confidentiality, format, and retention
of medical records, (B) access to medical records by the board, (C)
registration fees, renewal fees, delinquency fees, and replacement
document fees in an amount not to exceed the actual cost of
administering the registration program, and (D) provisions ensuring
that enforcement and consumer education shall be integral parts of
administering the registration program.
(3) The proposed registration program may also provide all of the
following:
(A) All laws, rules, and regulations that govern the practice of
medicine or podiatric medicine in this state, including, but not
limited to, confidentiality and reporting requirements, shall apply
to a physician and surgeon, or a doctor of podiatric medicine, who is
registered by the board to practice medicine or podiatric medicine
in this state across state lines.
(B) The board may deny an application for registration or may
suspend, revoke, or otherwise discipline a registrant for any of the
following: (i) on any ground prescribed by this chapter, (ii)
failure to possess or to maintain a valid license in the state where
the registrant resides, or (iii) if the applicant or registrant is
not licensed by the state or country in which he or she resides, and
that state or country prohibits the practice of medicine or podiatric
medicine from that state or country into any other state or country
without a valid registration or license issued by the state or
country in which the applicant or registrant practices. Action to
deny or discipline a registrant shall be taken in the manner provided
for in this chapter.
(C) Any of the following shall be grounds for discipline of a
registrant: (i) to allow any person to engage in the practice of
medicine or podiatric medicine in this state across state lines under
his or her registration, including, but not limited to, any nurse,
physician assistant, medical assistant, or other person, (ii) to fail
to include his or her registration number on any invoice or other
type of billing statement submitted for care or treatment provided to
a patient located in this state, (iii) to practice medicine or
podiatric medicine in any other state or country without meeting the
legal requirements to practice medicine or podiatric medicine in that
state or country, or (iv) to fail to notify the board, in a manner
prescribed by the board, of any restrictions placed on his or her
medical license, or podiatric medical license, in any state.
(D) A registration issued pursuant to the registration program
shall automatically be suspended upon receipt of a copy, from the
state that issued the license, of the surrender, revocation,
suspension, or other similar type of action taken by another state or
country against a medical license, or podiatric medical license,
issued to a registrant. The board shall notify the registrant in
writing of the suspension and of the registrant's right to a hearing.
(4) Section 2314 shall not apply to the registration program.
(c) This section shall not be construed to authorize the board to
implement a registration program for physicians and surgeons or
doctors of podiatric medicine located outside this state. This
section is intended to authorize the board to develop a proposed
registration program to be authorized for implementation by future
legislation.
SEC. 4. Section 2365 of the Business and Professions Code is
amended to read:
2365. (a) The board shall establish criteria for the acceptance,
denial, or termination of participants in the diversion program.
Unless ordered by the board as a condition of disciplinary probation,
only those participants who have voluntarily requested diversion
treatment and supervision by a committee shall participate in the
diversion program.
(b) A participant who is not the subject of a current
investigation may self-refer to the diversion program on a
confidential basis, except as provided in subdivision (f).
(c) A participant under current investigation by the board may
also request entry into the diversion program by contacting the board'
s Diversion Program Manager. The Diversion Program Manager may refer
the participant requesting participation in the program to a
diversion evaluation committee for evaluation of eligibility. Prior
to authorizing a licentiate to enter into the diversion program, the
Diversion Program Manager may require the licentiate, while under
current investigation for any violations of the Medical Practice Act
or other violations, to execute a statement of understanding that
states that the licentiate understands that his or her violations of
the Medical Practice Act or other statutes that would otherwise be
the basis for discipline may still be investigated and the subject of
disciplinary action.
(d) If the reasons for a current investigation of a participant
are based primarily on the self-administration of any controlled
substance or dangerous drugs or alcohol under Section 2239, or the
illegal possession, prescription, or nonviolent procurement of any
controlled substance or dangerous drugs for self-administration that
does not involve actual, direct harm to the public, the board may
close the investigation without further action if the licentiate is
accepted into the board's diversion program and successfully
completes the requirements of the program. If the participant
withdraws or is terminated from the program by a diversion evaluation
committee, the investigation may be reopened and disciplinary action
imposed, if warranted, as determined by the board.
(e) Neither acceptance nor participation in the diversion program
shall preclude the board from investigating or continuing to
investigate, or taking disciplinary action or continuing to take
disciplinary action against, any participant for any unprofessional
conduct committed before, during, or after participation in the
diversion program.
(f) All participants shall sign an agreement of understanding that
the withdrawal or termination from the diversion program at a time
when a diversion evaluation committee determines the licentiate
presents a threat to the public's health and safety shall result in
the utilization by the board of diversion treatment records in
disciplinary or criminal proceedings.
(g) Any participant terminated from the diversion program for
failure to comply with program requirements is subject to
disciplinary action by the board for acts committed before, during,
and after participation in the diversion program. A participant who
has been under investigation by the board and has been terminated
from the diversion program by a diversion evaluation committee shall
be reported by the diversion evaluation committee to the board.
SEC. 5. Section 3041.1 of the Business and Professions Code is
amended to read:
3041.1. (a) There shall be the Therapeutic Pharmaceutical Agent
Advisory Committee within the State Board of Optometry. The
committee shall consist of six members: three board-certified
ophthalmologists currently licensed in good standing in California,
to be appointed by the Medical Board of California; and three
optometrists who have passed the National Board of Examiners in
Optometry's "Treatment and Management of Ocular Disease" examination
or, in the event it is no longer offered, its equivalent, as
determined by the State Board of Optometry, to be appointed by the
State Board of Optometry.
(b) The committee shall recommend protocols that the State Board
of Optometry may use in its decisionmaking process. These protocols
shall include all of the following:
(1) A protocol relating to peripheral infectious corneal ulcers.
(2) A protocol for deciding issues relating to equivalency of
education and training of optometrists licensed outside of
California. This shall not relieve optometrists licensed outside of
California from the requirement of completing a preceptorship
pursuant to paragraph (2) of subdivision (b) of Section 3041.3.
(c) The committee shall provide the Medical Board of California
with copies of its recommendations.
SEC. 6. Section 3041.3 of the Business and Professions Code is
amended to read:
3041.3. (a) In order to be certified to use therapeutic
pharmaceutical agents and authorized to diagnose and treat the
conditions listed in subdivisions (b), (d), and (e) of Section 3041,
an optometrist shall apply for a certificate from the board and meet
all requirements imposed by the board.
(b) The board shall grant a certificate to use therapeutic
pharmaceutical agents to any applicant who graduated from a
California accredited school of optometry prior to January 1, 1996,
is licensed as an optometrist in California, and meets all of the
following requirements:
(1) Satisfactorily completes a didactic course of no less than 80
classroom hours in the diagnosis, pharmacological, and other
treatment and management of ocular disease provided by either an
accredited school of optometry in California or a recognized
residency review committee in ophthalmology in California.
(2) Completes a preceptorship of no less than 65 hours, during a
period of not less than two months nor more than one year, in either
an ophthalmologist's office or an optometric clinic. The training
received during the preceptorship shall be on the diagnosis,
treatment, and management of ocular, systemic disease. The preceptor
shall certify completion of the preceptorship. Authorization for
the ophthalmologist to serve as a preceptor shall be provided by an
accredited school of optometry in California, or by a recognized
residency review committee in ophthalmology, and the preceptor shall
be licensed as an ophthalmologist in California, board-certified in
ophthalmology, and in good standing with the Medical Board of
California. The individual serving as the preceptor shall schedule
no more than three optometrist applicants for each of the required 65
hours of the preceptorship program. This paragraph shall not be
construed to limit the total number of optometrist applicants for
whom an individual may serve as a preceptor, and is intended only to
ensure the quality of the preceptorship by requiring that the
ophthalmologist preceptor schedule the training so that each
applicant optometrist completes each of the 65 hours of the
preceptorship while scheduled with no more than two other optometrist
applicants.
(3) Successfully completes a minimum of 20 hours of self-directed
education.
(4) Passes the National Board of Examiners in Optometry's
"Treatment and Management of Ocular Disease" examination or, in the
event this examination is no longer offered, its equivalent, as
determined by the State Board of Optometry.
(5) Passes the examination issued upon completion of the 80-hour
didactic course required under paragraph (1) and provided by the
accredited school of optometry or residency program in ophthalmology.
(6) When any or all of the requirements contained in paragraph
(1), (4), or (5) have been satisfied on or after July 1, 1992, and
before January 1, 1996, an optometrist shall not be required to
fulfill the satisfied requirements in order to obtain certification
to use therapeutic pharmaceutical agents. In order for this
paragraph to apply to the requirement contained in paragraph (5), the
didactic examination that the applicant successfully completed shall
meet equivalency standards, as determined by the board.
(7) Any optometrist who graduated from an accredited school of
optometry on or after January 1, 1992, and before January 1, 1996,
shall not be required to fulfill the requirements contained in
paragraphs (1), (4), and (5).
(c) The board shall grant a certificate to use therapeutic
pharmaceutical agents to any applicant who graduated from a
California accredited school of optometry on or after January 1,
1996, who is licensed as an optometrist in California, and who meets
all of the following requirements:
(1) Passes the National Board of Examiners in Optometry's national
board examination, or its equivalent, as determined by the State
Board of Optometry.
(2) Of the total clinical training required by a school of
optometry's curriculum, successfully completed at least 65 of those
hours on the diagnosis, treatment, and management of ocular, systemic
disease.
(3) Is certified by an accredited school of optometry as competent
in the diagnosis, treatment, and management of ocular, systemic
disease to the extent authorized by this section.
(4) Is certified by an accredited school of optometry as having
completed at least 10 hours of experience with a board-certified
ophthalmologist.
(d) The board shall grant a certificate to use therapeutic
pharmaceutical agents to any applicant who is an optometrist who
obtained his or her license outside of California if he or she meets
all of the requirements for an optometrist licensed in California to
be certified to use therapeutic pharmaceutical agents.
(1) In order to obtain a certificate to use therapeutic
pharmaceutical agents, any optometrist who obtained his or her
license outside of California and graduated from an accredited school
of optometry prior to January 1, 1996, shall be required to fulfill
the requirements set forth in subdivision (b). In order for the
applicant to be eligible for the certificate to use therapeutic
pharmaceutical agents, the education he or she received at the
accredited out-of-state school of optometry shall be equivalent to
the education provided by any accredited school of optometry in
California for persons who graduate
before January 1, 1996. For those out-of-state
applicants who request that any of the requirements contained in
subdivision (b) be waived based on fulfillment of the requirement in
another state, if the board determines that the completed requirement
was equivalent to that required in California, the requirement shall
be waived.
(2) In order to obtain a certificate to use therapeutic
pharmaceutical agents, any optometrist who obtained his or her
license outside of California and who graduated from an accredited
school of optometry on or after January 1, 1996, shall be required to
fulfill the requirements set forth in subdivision (c). In order for
the applicant to be eligible for the certificate to use therapeutic
pharmaceutical agents, the education he or she received by the
accredited out-of-state school of optometry shall be equivalent to
the education provided by any accredited school of optometry for
persons who graduate on or after January 1, 1996. For those
out-of-state applicants who request that any of the requirements
contained in subdivision (c) be waived based on fulfillment of the
requirement in another state, if the board determines that the
completed requirement was equivalent to that required in California,
the requirement shall be waived.
(3) The State Board of Optometry shall decide all issues relating
to the equivalency of an optometrist's education or training under
this subdivision, and the committee established pursuant to Section
3041.1 shall recommend protocols for the board to use in this regard,
as described in Section 3041.1.
SEC. 7. Section 7044.2 of the Business and Professions Code is
amended to read:
7044.2. This chapter does not apply to an admitted surety insurer
whenever that surety insurer engages a contractor to undertake the
completion of a contract on which a performance or completion bond
was issued by the surety insurer, provided all actual construction
work is performed by duly licensed contractors.
SEC. 8. Section 9884 of the Business and Professions Code is
amended to read:
9884. (a) An automotive repair dealer shall pay the fee required
by this chapter for each place of business operated by the dealer in
this state and shall register with the director upon forms prescribed
by the director. The forms shall contain sufficient information to
identify the automotive repair dealer, including name, address of
each location, a statement by the dealer that each location is in an
area that, pursuant to local zoning ordinances, permits the operation
of a facility for the repair of motor vehicles, the dealer's retail
seller's permit number, if a permit is required under the Sales and
Use Tax Law (Part 1 (commencing with Section 6001), Division 2,
Revenue and Taxation Code), and other identifying data that are
prescribed by the director. If the business is to be carried on
under a fictitious name, the fictitious name shall be stated. If the
automotive repair dealer is a partnership, identifying data that are
prescribed by the director shall be stated for each partner. If the
automotive repair dealer is a corporation, data shall be included
for each of the officers and directors of the corporation as well as
for the individual in charge of each place of the automotive repair
dealer's business in this state. The forms shall include a statement
signed by the dealer under penalty of perjury that the information
provided is true.
(b) A state agency is not authorized or required by this section
to enforce a city, county, regional, air pollution control district,
or air quality management district rule or regulation regarding the
site or operation of a facility that repairs motor vehicles.
SEC. 9. Section 10250.2 of the Business and Professions Code is
amended to read:
10250.2. (a) The sale or lease, or the offering for sale or
lease, of lots or parcels in a subdivision is governed by this
article and Chapter 1 (commencing with Section 11000) of Part 2,
insofar as applicable.
(b) Subject to Sections 10250.8, 11018.8, 11018.9, 11018.10, and
11018.11, the commissioner shall apply Sections 11018 and 11018.5,
after taking into consideration the differences in the applicable
laws of the various states with respect to subdivisions, to afford
substantially the same level of public protection to purchasers of an
interest in a subdivision offering governed by this article as is
afforded to purchasers of subdivision interests situated entirely
within this state.
The commissioner may adopt regulations as reasonably necessary to
enforce this article.
SEC. 10. Section 11018.11 of the Business and Professions Code, as
added by Chapter 1335 of the Statutes of 1980, is amended and
renumbered to read:
11018.14. The commissioner shall not be a responsible agency for
purposes of the California Environmental Quality Act (Division 13
(commencing with Section 21000), Public Resources Code). Receipt by
the commissioner of a copy of an environmental impact report or
negative declaration prepared pursuant to the California
Environmental Quality Act shall be conclusive evidence of compliance
with that act for purposes of issuing a subdivision public report.
SEC. 11. Section 17206 of the Business and Professions Code is
amended to read:
17206. (a) Any person who engages, has engaged, or proposes to
engage in unfair competition shall be liable for a civil penalty not
to exceed two thousand five hundred dollars ($2,500) for each
violation, which shall be assessed and recovered in a civil action
brought in the name of the people of the State of California by the
Attorney General, by any district attorney, by any county counsel
authorized by agreement with the district attorney in actions
involving violation of a county ordinance, by any city attorney of a
city, or city and county, having a population in excess of 750,000,
with the consent of the district attorney, by a city prosecutor in
any city having a full-time city prosecutor, or, with the consent of
the district attorney, by a city attorney in any city and county, in
any court of competent jurisdiction.
(b) The court shall impose a civil penalty for each violation of
this chapter. In assessing the amount of the civil penalty, the
court shall consider any one or more of the relevant circumstances
presented by any of the parties to the case, including, but not
limited to, the following: the nature and seriousness of the
misconduct, the number of violations, the persistence of the
misconduct, the length of time over which the misconduct occurred,
the willfulness of the defendant's misconduct, and the defendant's
assets, liabilities, and net worth.
(c) If the action is brought by the Attorney General, one-half of
the penalty collected shall be paid to the treasurer of the county in
which the judgment was entered, and one-half to the State General
Fund. If the action is brought by a district attorney or county
counsel, the penalty collected shall be paid to the treasurer of the
county in which the judgment was entered. Except as provided in
subdivision (d), if the action is brought by a city attorney or city
prosecutor, one-half of the penalty collected shall be paid to the
treasurer of the city in which the judgment was entered, and one-half
to the treasurer of the county in which the judgment was entered.
(d) If the action is brought at the request of a board within the
Department of Consumer Affairs or a local consumer affairs agency,
the court shall determine the reasonable expenses incurred by the
board or local agency in the investigation and prosecution of the
action.
Before any penalty collected is paid out pursuant to subdivision
(c), the amount of any reasonable expenses incurred by the board
shall be paid to the state Treasurer for deposit in the special fund
of the board described in Section 205. If the board has no such
special fund, the moneys shall be paid to the state Treasurer. The
amount of any reasonable expenses incurred by a local consumer
affairs agency shall be paid to the general fund of the municipality
or county that funds the local agency.
(e) If the action is brought by a city attorney of a city and
county, the entire amount of the penalty collected shall be paid to
the treasurer of the city and county in which the judgment was
entered. However, if the action is brought by a city attorney of a
city and county for the purposes of civil enforcement pursuant to
Section 17980 of the Health and Safety Code or Article 3 (commencing
with Section 11570) of Chapter 10 of Division 10 of the Health and
Safety Code, either the penalty collected shall be paid entirely to
the treasurer of the city and county in which the judgment was
entered or, upon the request of the city attorney, the court may
order that up to one-half of the penalty, under court supervision and
approval, be paid for the purpose of restoring, maintaining, or
enhancing the premises that were the subject of the action, and that
the balance of the penalty be paid to the treasurer of the city and
county.
SEC. 12. Section 24071.2 of the Business and Professions Code is
amended to read:
24071.2. (a) When the ownership of 50 percent or more of the
membership interests in a limited liability company required to
report the issuance or transfer of memberships under Section 23405.3
is acquired by or transferred to a person or persons who did not hold
the ownership of 50 percent of the membership interests on the date
the license was issued to the limited liability company, the license
of the limited liability company shall be transferred to the limited
liability company as newly constituted. The fee for the transfer
shall be equal to 50 percent of the original fee for the license,
except that the minimum fee shall be one hundred dollars ($100) and
the maximum fee shall be eight hundred dollars ($800). In situations
involving the multiple and simultaneous transfer of licenses under
this section, the regular transfer fee shall be required for only one
of the licenses being transferred and the remainder of the licenses
shall be transferred for a fee of one hundred dollars ($100) each.
All of the transfer fees collected pursuant to this section shall be
deposited in the Alcohol Beverage Control Fund, as provided in
Section 25761. Before the license is transferred, the department
shall conduct an investigation pursuant to Section 23958. Any person
or persons who own 50 percent or more of the membership interests of
the limited liability company shall have all the qualifications
required of a person holding the same type of license.
(b) No retail license shall be transferred by a limited liability
company under this section unless, before the filing of the transfer
application with the department, the company initiating the transfer
records, in the office of the county recorder of the county or
counties in which the premises to which the license has been issued
are situated, a notice of the intended transfer, stating all of the
following:
(1) The name and address of the limited liability company.
(2) The name and address of the person or persons acquiring
ownership of 50 percent or more of the membership interests of the
limited liability company.
(3) The amount of the consideration paid for the membership
interests.
(4) The kind of license or licenses intended to be transferred.
(5) The address or addresses of the premises to which the license
or licenses have been issued.
A copy of the notice of the intended transfer, certified by the
county recorder, shall be filed with the department together with the
transfer application.
(c) Notwithstanding any other provision of this division to the
contrary, a limited liability company as newly constituted by
transfer under this section shall not be eligible for any new credit
from any person named in Section 25509 until all delinquent payments
owed by the limited liability company as formerly constituted are
made, nor shall any retail licensee, by transferring its license
under this section, avoid the provisions of Section 25509 with regard
to 42-day or 30-day periods, percentage charges for unpaid balances,
or cash-on-delivery basis.
(d) Nothing in this section shall be deemed to authorize the
formation of a limited liability company composed of only one member
in violation of subdivision (b) of Section 17050 of the Corporations
Code.
SEC. 13. Section 25662 of the Business and Professions Code is
amended to read:
25662. (a) Any person under the age of 21 years who has any
alcoholic beverage in his or her possession on any street or highway
or in any public place or in any place open to the public is guilty
of a misdemeanor. This section does not apply to possession by a
person under the age of 21 years making a delivery of an alcoholic
beverage in pursuance of the order of his or her parent, responsible
adult relative, or any other adult designated by the parent or legal
guardian, or in pursuance of his or her employment. That person
shall have a complete defense if he or she was following, in a timely
manner, the reasonable instructions of his or her parent, legal
guardian, responsible adult relative, or adult designee relating to
disposition of the alcoholic beverage.
(b) Unless otherwise provided by law, where a peace officer has
lawfully entered the premises, the peace officer may seize any
alcoholic beverage in plain view that is in the possession of, or
provided to, a person under the age of 21 years at social gatherings,
when those gatherings are open to the public, 10 or more persons
under the age of 21 years are participating, persons under the age of
21 years are consuming alcoholic beverages, and there is no
supervision of the social gathering by a parent or guardian of one or
more of the participants.
Where a peace officer has seized alcoholic beverages pursuant to
this subdivision, the officer may destroy any alcoholic beverage
contained in an opened container and in the possession of, or
provided to, a person under the age of 21 years, and, with respect to
alcoholic beverages in unopened containers, the officer shall
impound those beverages for a period not to exceed seven working days
pending a request for the release of those beverages by a person 21
years of age or older who is the lawful owner or resident of the
property upon which the alcoholic beverages were seized. If no one
requests release of the seized alcoholic beverages within that
period, those beverages may be destroyed.
SEC. 14. Section 1365 of the Civil Code is amended to read:
1365. Unless the governing documents impose more stringent
standards, the association shall prepare and distribute to all of its
members the following documents:
(a) A pro forma operating budget, which shall include all of the
following:
(1) The estimated revenue and expenses on an accrual basis.
(2) A summary of the association's reserves based upon the most
recent review or study conducted pursuant to Section 1365.5, which
shall be printed in bold type and include all of the following:
(A) The current estimated replacement cost, estimated remaining
life, and estimated useful life of each major component.
(B) As of the end of the fiscal year for which the study is
prepared:
(i) The current estimate of the amount of cash reserves necessary
to repair, replace, restore, or maintain the major components.
(ii) The current amount of accumulated cash reserves actually set
aside to repair, replace, restore, or maintain major components.
(C) The percentage that the amount determined for purposes of
clause (ii) of subparagraph (B) equals of the amount determined for
purposes of clause (i) of subparagraph (B).
(3) A statement as to whether the board of directors of the
association has determined or anticipates that the levy of one or
more special assessments will be required to repair, replace, or
restore any major component or to provide adequate reserves therefor.
(4) A general statement addressing the procedures used for the
calculation and establishment of those reserves to defray the future
repair, replacement, or additions to those major components that the
association is obligated to maintain.
The summary of the association's reserves disclosed pursuant to
paragraph (2) shall not be admissible in evidence to show improper
financial management of an association, provided that other relevant
and competent evidence of the financial condition of the association
is not made inadmissible by this provision.
A copy of the operating budget shall be annually distributed not
less than 45 days nor more than 60 days prior to the beginning of the
association's fiscal year.
(b) A review of the financial statement of the association shall
be prepared in accordance with generally accepted accounting
principles by a licensee of the California State Board of Accountancy
for any fiscal year in which the gross income to the association
exceeds seventy-five thousand dollars ($75,000). A copy of the
review of the financial statement shall be distributed within 120
days after the close of each fiscal year.
(c) In lieu of the distribution of the pro forma operating budget
required by subdivision (a), the board of directors may elect to
distribute a summary of the pro forma operating budget to all of its
members with a written notice that the pro forma operating budget is
available at the business office of the association or at another
suitable location within the boundaries of the development, and that
copies will be provided upon request and at the expense of the
association. If any member requests that a copy of the pro forma
operating budget required by subdivision (a) be mailed to the member,
the association shall provide the copy to the member by first-class
United States mail at the expense of the association and delivered
within five days. The written notice that is distributed to each of
the association members shall be in at least 10-point boldface type
on the front page of the summary of the budget.
(d) A statement describing the association's policies and
practices in enforcing lien rights or other legal remedies for
default in payment of its assessments against its members shall be
annually delivered to the members during the 60-day period
immediately preceding the beginning of the association's fiscal year.
(e) (1) A summary of the association's property, general
liability, and earthquake and flood insurance policies, which shall
be distributed within 60 days preceding the beginning of the
association's fiscal year, that includes all of the following
information about each policy:
(A) The name of the insurer.
(B) The type of insurance.
(C) The policy limits of the insurance.
(D) The amount of deductibles, if any.
(2) The association shall, as soon as reasonably practicable,
notify its members by first-class mail if any of the policies
described in paragraph (1) have lapsed, been canceled, and are not
immediately renewed, restored, or replaced, or if there is a
significant change, such as a reduction in coverage or limits or an
increase in the deductible, as to any of those policies. If the
association receives any notice of nonrenewal of a policy described
in paragraph (1), the association shall immediately notify its
members if replacement coverage will not be in effect by the date the
existing coverage will lapse.
(3) To the extent that any of the information required to be
disclosed pursuant to paragraph (1) is specified in the insurance
policy declaration page, the association may meet its obligation to
disclose that information by making copies of that page and
distributing it to all of its members.
(4) The summary distributed pursuant to paragraph (1) shall
contain, in at least 10-point boldface type, the following statement:
"This summary of the association's policies of insurance provides
only certain information, as required by subdivision (e) of Section
1365 of the Civil Code, and should not be considered a substitute for
the complete policy terms and conditions contained in the actual
policies of insurance. Any association member may, upon request and
provision of reasonable notice, review the association's insurance
policies and, upon request and payment of reasonable duplication
charges, obtain copies of those policies. Although the association
maintains the policies of insurance specified in this summary, the
association's policies of insurance may not cover your property,
including personal property or, real property improvements to or
around your dwelling, or personal injuries or other losses that occur
within or around your dwelling. Even if a loss is covered, you may
nevertheless be responsible for paying all or a portion of any
deductible that applies. Association members should consult with
their individual insurance broker or agent for appropriate additional
coverage."
SEC. 15. Section 1375 of the Civil Code is amended to read:
1375. (a) Before an association commences an action for damages
against a builder of a common interest development based upon a claim
for defects in the design or construction of the common interest
development, all of the requirements of subdivisions (b) to (g),
inclusive, shall be met, except as otherwise provided in this
section.
(b) (1) The association shall give written notice to the builder
against whom the claim is made. This notice shall include all of the
following:
(A) A preliminary list of defects.
(B) A summary of the results of a survey or questionnaire
distributed to homeowners to determine the nature and extent of
defects, if this survey has been conducted or a questionnaire has
been distributed.
(C) Either a summary of the results of testing conducted to
determine the nature and extent of defects or the actual test
results, if this testing has been conducted.
(2) The association's notice shall, upon delivery of the notice to
the builder, commence a period of time not to exceed 90 days, unless
the association and builder agree to a longer period, during which
the association and builder shall either, in accordance with the
requirements of this section, attempt to settle the dispute or
attempt to agree to submit it to alternative dispute resolution.
(3) (A) Except as provided in this section and notwithstanding any
other provision of law, the notice by the association shall, upon
mailing, toll all statutory and contractual limitations on actions
against all parties who may be responsible for the damages claimed,
whether named in the notice or not, including claims for indemnity
applicable to the claim, for a period of 150 days or a longer period
agreed to in writing by the association and the builder.
(B) At any time, the builder may give written notice to cancel the
tolling of the statute of limitations provided in this section.
Upon delivery of this written cancellation notice, the association
shall be relieved of any further obligations to satisfy the
requirements of this subdivision and subdivisions (c) to (e),
inclusive. The tolling of all applicable statutes of limitations
shall cease 60 days after the written notice of cancellation by the
builder is delivered to the association.
(c) (1) Within 25 days of the date the association delivers the
notice required by subdivision (b), the builder may request in
writing to meet and confer with the board of directors of the
association, and to inspect the project and conduct testing,
including testing that may cause physical damage to any property in
the development, in order to evaluate the claim. If the builder does
not make a timely request to meet and confer with the board of
directors of the association, or to conduct inspection and testing,
the association shall be relieved of any further obligations to
satisfy the requirements of this subdivision and subdivisions (d) and
(e). Unless the builder and association otherwise agree, the
meeting shall take place no later than 10 days from the date of the
builder's written request, at a mutually agreeable time and place.
The meeting shall be subject to subdivision (g) of Section 1363. The
discussions at the meeting are privileged communications and are not
admissible in evidence in any civil action, unless the association
and builder consent to their admission. The meeting shall be for the
purpose of discussing all of the following:
(A) The nature and extent of the claimed defects.
(B) Proposed methods of repair, to the extent there is sufficient
information.
(C) Proposals for submitting the dispute to alternative dispute
resolution.
(D) Requests from the builder to inspect the project and conduct
testing.
(2) If the builder requests in writing to meet and confer with the
board of directors of the association pursuant to paragraph (1) of
this subdivision, the builder shall deliver the notice provided by
the association to the builder pursuant to subdivision (b) to any
insurer that has issued a policy to the builder that imposes upon the
insurer a duty to defend the insured or indemnify the insured for
losses resulting from the defects identified in the notice required
by subdivision (b). The notice by the builder shall, upon receipt,
impose upon that insurer any obligation that would be imposed under
the terms of the policy if the insured had been served with a summons
and complaint for damages. The builder shall inform the association
when the builder delivers the notice to each insurer pursuant to
this paragraph.
(d) (1) If the association conducted inspection and testing prior
to the date it sent the written notice pursuant to subdivision (b),
the association shall, at the earliest practicable date after the
meeting held pursuant to subdivision (c), make available for
inspection and testing at least those areas inspected or tested by
the association. The inspection and testing shall be completed
within 15 days from the date the association makes these areas
available for inspection and testing, unless the association and
builder agree to a longer period. If the builder does not timely
complete the inspection and testing, the association shall be
relieved of any further obligations to satisfy the requirements of
this subdivision and subdivision (e). The manner in which the
inspection and testing shall be conducted, and the extent of any
inspection and testing to be conducted beyond that which was
conducted by the association prior to sending the notice, shall be
set by agreement of the association and builder.
(2) The builder shall pay all costs of inspection and testing that
is requested by the builder, shall restore the property to the
condition that existed immediately prior
to the testing, and shall indemnify the association and
owner of the separate interest for any damages resulting from the
testing.
(3) Interior inspections of occupied separate interests and
destructive testing of any interior of a separate interest shall be
conducted in accordance with the governing documents of the
association, unless otherwise agreed to by the owner of the separate
interest. If the governing documents of the association do not
provide for inspection or testing of separate interests, this
inspection or testing shall be conducted in a manner and at a time
agreed to by the owner of the separate interest.
(4) The results of the inspection and testing shall not be
inadmissible in evidence in any civil action solely because the
inspection and testing was conducted pursuant to this section.
(e) (1) Within 30 days of the completion of inspection and testing
or within 30 days of a meeting held pursuant to subdivision (c) if
no inspection and testing is conducted pursuant to subdivision (d),
the builder shall submit to the association all of the following:
(A) A request to meet with the board to discuss a written
settlement offer.
(B) A written settlement offer, and a concise explanation of the
specific reasons for the terms of the offer. This offer may include
an offer to submit the dispute to alternative dispute resolution.
(C) A statement that the builder has access to sufficient funds to
satisfy the conditions of the settlement offer.
(D) A summary of the results of testing conducted for the purpose
of determining the nature and extent of defects, if this testing has
been conducted, unless the association provided the builder with
actual test results pursuant to subdivision (b), in which case the
builder shall provide the association with actual test results.
(2) If the builder does not timely submit the items required by
this subdivision, the association shall be relieved of any further
obligations to satisfy the requirements of this subdivision only.
(3) No less than 10 days after the builder submits the items
required by this paragraph, the builder and the board of directors of
the association shall meet and confer about the builder's settlement
offer, including any offer to submit the dispute to alternative
dispute resolution.
(f) (1) At any time after the notice required by subdivision (b)
is delivered to the builder, the association and builder may agree in
writing to modify or excuse any of the time periods or other
obligations imposed by this section.
(2) Except for the notice required pursuant to subdivision (g),
all notices, requests, statements, or other communications required
pursuant to this section shall be delivered by one of the following:
(A) By first-class registered or certified mail, return receipt
requested.
(B) In any manner in which it is permissible to serve a summons
pursuant to Section 415.10 or 415.20 of the Code of Civil Procedure.
(g) If the board of directors of the association rejects a
settlement offer presented at the meeting held pursuant to
subdivision (e), the board shall comply with the requirements of
paragraph (1) of this subdivision. If the association is relieved of
its obligations to satisfy the requirements of subdivisions (a) to
(e), inclusive, before all those requirements are satisfied, the
association shall comply with the requirements of paragraph (2) of
this subdivision. Under no circumstances may the association be
required to comply with both paragraph (1) and paragraph (2) of this
subdivision.
(1) (A) If the association's board of directors rejects a
settlement offer presented at the meeting held pursuant to
subdivision (e), the board shall hold a meeting open to each member
of the association. The meeting shall be held no less than 15 days
before the association commences an action for damages against the
builder.
(B) No less than 15 days before this meeting is held, a written
notice shall be sent to each member of the association specifying all
of the following:
(i) That a meeting will take place to discuss problems that may
lead to the filing of a civil action, and the time and place of this
meeting.
(ii) The options that are available to address the problems,
including the filing of a civil action.
(iii) The complete text of any written settlement offer, and a
concise explanation of the specific reasons for the terms of the
offer submitted to the board pursuant to paragraph (1) of subdivision
(e), received from the builder and of any offer by the builder to
submit the dispute to alternative dispute resolution.
(iv) The preliminary list of defects provided by the association
to the builder pursuant to subdivision (b) and a list of any other
documents provided by the association to the builder pursuant to
subdivision (b), and information about where and when members of the
association may inspect those documents.
(C) The builder shall pay all expenses attributable to sending the
settlement offer and any offer for alternative dispute resolution to
all members of the association. The builder shall also pay the
expense of holding the meeting, not to exceed three dollars ($3) per
association member.
(D) The discussions at the meeting, and the contents of the notice
and the items required to be specified in the notice pursuant to
subparagraph (B), are privileged communications and are not
admissible in evidence in any civil action, unless the association
consents to their admission.
(E) Compliance with this paragraph shall excuse the association
from satisfying the requirements of Section 1368.4.
(2) If the association is relieved of its obligations to satisfy
the requirements of subdivisions (a) to (e), inclusive, before all of
those requirements have been satisfied, the association may commence
an action for damages against the builder 30 days after sending a
written notice to each member specifying all of the following:
(A) The preliminary list of defects provided by the association to
the builder pursuant to subdivision (b), a list of any other
documents provided by the association to the builder pursuant to
subdivision (b), and information about where and when members of the
association may inspect those documents.
(B) The options, including civil actions, that are available to
address the problems.
(C) A statement that if 5 percent of the members of the
association request a special meeting of the members to discuss the
matter within 15 days of the date the notice is mailed or delivered
to the members of the association, a meeting of the members shall be
held, unless governing documents of the association provide for a
different procedure for calling a special meeting of the members, in
which case the statement shall inform the members of that procedure.
(D) Compliance with this paragraph shall excuse the association
from satisfying the requirements of Section 1368.4.
(h) (1) The only method of seeking judicial relief for the failure
of the association to comply with this section shall be the
assertion, as provided for in this subdivision, of a procedural
deficiency to an action for damages by the association against the
builder after that action has been filed. A verified application
asserting that procedural deficiency shall be filed with the court no
later than 90 days after the answer to the plaintiff's complaint has
been served, unless the court finds that extraordinary conditions
exist.
(2) Upon the verified application of the association or the
builder alleging substantial noncompliance with this section, the
court shall schedule a hearing within 21 days of the application to
determine whether the association or builder has substantially
complied with this section. The issue may be determined upon
affidavits or upon oral testimony, in the discretion of the court.
(3) (A) If the court finds that the association did not
substantially comply with this section, the court shall stay the
action for up to 90 days to allow the association to establish
substantial compliance. The court shall set a hearing within 90 days
to determine substantial compliance by the association. At any
time, the court may, for good cause shown, extend the period of the
stay upon application of the association.
(B) If, within the time set by the court pursuant to this section,
the association has not established that it has substantially
complied with this section, the court shall determine if, in the
interest of justice, the action should be dismissed without
prejudice, or if another remedy should be fashioned. Under no
circumstances shall the court dismiss the action with prejudice as a
result of the association's failure to substantially comply with this
section. In determining the appropriate remedy, the court shall
consider the extent to which the builder has complied with this
section.
(C) If the alleged noncompliance of either the builder or the
association resulted from the unreasonable withholding of consent for
inspection or testing by an owner of a separate interest, it shall
not be considered substantial noncompliance, provided that the party
alleged to be out of compliance did not encourage the withholding of
consent.
(4) If the court finds that the builder did not pay all of the
costs of inspection and testing pursuant to paragraph (3) of
subdivision (a), or that the builder did not pay its required share
of the costs of holding the meeting and of all expenses attributable
to sending the settlement offer pursuant to subparagraph (C) of
paragraph (1) of subdivision (g) of this section, the court shall
order the builder to pay any deficiencies within 30 days, with
interest, and any additional remedy which the court determines, in
the interest of justice, should be fashioned.
(i) As used in this section:
(1) "Association" shall have the same meaning as in subdivision
(a) of Section 1351.
(2) "Builder" means the declarant, as defined in subdivision (g)
of Section 1351.
(3) "Common interest development" shall have the same meaning as
in subdivision (c) of Section 1351, except that it shall not include
developments or projects with less than 20 units.
SEC. 16. Section 1861.607 of the Civil Code is amended and
renumbered to read:
1812.607. Every auction company and auctioneer shall do all of
the following:
(a) Disclose his or her name, trade or business name, telephone
number, and bond number in all advertising of auctions. A first
violation of this subdivision is an infraction subject to a fine of
fifty dollars ($50); a second violation is subject to a fine of
seventy-five dollars ($75); and a third or subsequent violation is
subject to a fine of one hundred dollars ($100). This section shall
not apply to business cards, business stationery, or to any
advertisement that does not specify an auction date.
(b) Post a sign, the dimensions of which shall be at least 18
inches by 24 inches, at the main entrance to each auction, stating
that the auction is being conducted in compliance with Section 2328
of the Commercial Code, Section 535 of the Penal Code, and the
provisions of the California Civil Code. A first violation of this
subdivision is an infraction subject to a fine of fifty dollars
($50); a second violation is subject to a fine of seventy-five
dollars ($75); and a third or subsequent violation is subject to a
fine of one hundred dollars ($100).
(c) Post or distribute to the audience the terms, conditions,
restrictions, and procedures whereby goods will be sold at the
auction, and announce any changes to those terms, conditions,
restrictions, and procedures prior to the beginning of the auction
sale. A first violation of this subdivision is an infraction subject
to a fine of fifty dollars ($50); a second violation is subject to a
fine of one hundred dollars ($100); and a third or subsequent
violation is subject to a fine of two hundred fifty dollars ($250).
(d) Notify the Secretary of State of any change in address of
record within 30 days of the change. A violation of this subdivision
is an infraction subject to a fine of fifty dollars ($50).
(e) Notify the Secretary of State of any change in the officers of
a corporate license within 30 days of the change. A violation of
this subdivision is an infraction subject to a fine of fifty dollars
($50).
(f) Notify the Secretary of State of any change in the business or
trade name of the auctioneer or auction company within 30 days of
the change. A violation of this subdivision is an infraction subject
to a fine of fifty dollars ($50).
(g) Keep and maintain, at the auctioneer's or auction company's
address of record, complete and correct records and accounts
pertaining to the auctioneer's or auction company's activity for a
period of not less than two years. The records shall include the
name and address of the owner or consignor and of any buyer of goods
at any auction sale engaged in or conducted by the auctioneer or
auction company, a description of the goods, the terms and conditions
of the acceptance and sale of the goods, all written contracts with
owners and consignors, and accounts of all moneys received and paid
out, whether on the auctioneer's or auction company's own behalf or
as agent, as a result of those activities. A first violation of this
subdivision is a misdemeanor subject to a fine of five hundred
dollars ($500); and a second or subsequent violation is subject to a
fine of one thousand dollars ($1,000).
(h) Within 30 working days after the sale transaction, provide, or
cause to be provided, an account to the owner or consignor of all
goods that are the subject of an auction engaged in or conducted by
the auctioneer or auction company. A first violation of this
subdivision is a misdemeanor subject to a fine of five hundred
dollars ($500); and a second or subsequent violation is subject to a
fine of one thousand dollars ($1,000).
(i) Within 30 working days after a sale transaction of goods, pay
or cause to be paid all moneys and proceeds due to the owner or the
consignor of all goods that were the subject of an auction engaged in
or conducted by the auctioneer or auction company, unless delay is
compelled by legal proceedings or the inability of the auctioneer or
auction company, through no fault of his or her own, to transfer
title to the goods or to comply with any provision of this chapter,
the Commercial Code, or the Code of Civil Procedure, or with any
other applicable provision of law. A first violation of this
subdivision is a misdemeanor subject to a fine of one thousand
dollars ($1,000); a second violation is subject to a fine of one
thousand five hundred dollars ($1,500); and a third or subsequent
violation is subject to a fine of two thousand dollars ($2,000).
(j) Maintain the funds of all owners, consignors, buyers, and
other clients and customers separate from his or her personal funds
and accounts. A violation of this subdivision is an infraction
subject to a fine of two hundred fifty dollars ($250).
(k) Immediately prior to offering any item for sale, disclose to
the audience the existence and amount of any liens or other
encumbrances on the item, unless the item is sold as free and clear.
For the purposes of this subdivision, an item is "free and clear" if
all liens and encumbrances on the item are to be paid prior to the
transfer of title. A violation of this subdivision is an infraction
subject to a fine of two hundred fifty dollars ($250) in addition to
the requirement that the buyer be refunded, upon demand, the amount
paid for any item that is the subject of the violation.
(l) Within two working days after an auction sale, return the
blank check or deposit of each buyer who purchased no goods at the
sale. A first violation of this subdivision is an infraction subject
to a fine of one hundred dollars ($100); and a second or subsequent
violation is subject to a fine of two hundred fifty dollars ($250).
(m) Within 30 working days of any auction sale, refund that
portion of the deposit of each buyer that exceeds the cost of the
goods purchased, unless delay is compelled by legal proceedings or
the inability of the auctioneer or auction company, through no fault
of his or her own, to transfer title to the goods or to comply with
any provision of this chapter, the Commercial Code, or the Code of
Civil Procedure, or with other applicable provisions of law, or
unless the buyer violated the terms of a written agreement that he or
she take possession of purchased goods within a specified period of
time. A first violation of this subdivision is an infraction subject
to a fine of one hundred dollars ($100); and a second or subsequent
violation is subject to a fine of two hundred fifty dollars ($250).
SEC. 17. Section 1861.608 of the Civil Code is amended and
renumbered to read:
1812.608. In addition to other requirements and prohibitions of
this title, it is a violation of this title for any person to do any
of the following:
(a) Fail to comply with any provision of this code, or with any
provision of the Vehicle Code, the Commercial Code, any regulation of
the Secretary of State, the Code of Civil Procedure, the Penal Code,
or any law administered by the State Board of Equalization, relating
to the auctioneering business, including, but not limited to, sales
and the transfer of title of goods.
(b) Aid or abet the activity of any other person that violates any
provision of this title. A violation of this subdivision is a
misdemeanor subject to a fine of one thousand dollars ($1,000).
(c) Place or use any misleading or untruthful advertising or
statements or make any substantial misrepresentation in conducting
auctioneering business. A first violation of this subdivision is a
misdemeanor subject to a fine of five hundred dollars ($500); and a
second or subsequent violation is subject to a fine of one thousand
dollars ($1,000).
(d) Sell goods at auction before the auctioneer or auction company
involved has first entered into a written contract with the owner or
consignor of the goods, which contract sets forth the terms and
conditions upon which the auctioneer or auction company accepts the
goods for sale. The written contract shall include all of the
following:
(1) The auctioneer's or auction company's name, trade or business
name, business address, and business telephone number.
(2) An inventory of the item or items to be sold at auction.
(3) A description of the services to be provided and the agreed
consideration for the services, which description shall explicitly
state which party shall be responsible for advertising and other
expenses.
(4) The approximate date or dates when the item or items will be
sold at auction.
(5) A statement as to which party shall be responsible for
insuring the item or items against loss by theft, fire, or other
means.
(6) A disclosure that the auctioneer or auction company has a bond
on file with the Secretary of State. A first violation of this
subdivision is an infraction subject to a fine of two hundred fifty
dollars ($250); a second violation is subject to a fine of five
hundred dollars ($500); and a third or subsequent violation is
subject to a fine of one thousand dollars ($1,000).
(e) Sell goods at auction before the auctioneer or auction company
involved has first entered into a written contract with the
auctioneer who is to conduct the auction. A first violation of this
subdivision is an infraction subject to a fine of one hundred dollars
($100); and a second or subsequent violation is subject to a fine of
two hundred fifty dollars ($250).
(f) Fail to reduce to writing all amendments or addenda to any
written contract with an owner or consignor or an auctioneer. A
first violation of this subdivision is an infraction subject to a
fine of one hundred dollars ($100); and a second or subsequent
violation is subject to a fine of two hundred fifty dollars ($250).
(g) Fail to abide by the terms of any written contract required by
this section. A first violation of this subdivision is an
infraction subject to a fine of one hundred dollars ($100); and a
second or subsequent violation is subject to a fine of two hundred
fifty dollars ($250).
(h) Cause or allow any person to bid at a sale for the sole
purpose of increasing the bid on any item or items being sold by the
auctioneer, except as authorized by Section 2328 of the Commercial
Code or by this title. A violation of this subdivision includes, but
is not limited to, either of the following:
(1) Stating any increased bid greater than that offered by the
last highest bidder when, in fact, no person has made such a bid.
(2) Allowing the owner, consignor, or agent thereof, of any item
or items to bid on the item or items, without disclosing to the
audience that the owner, consignor, or agent thereof has reserved the
right to so bid.
A violation of this subdivision is an infraction subject to a fine
of one hundred dollars ($100).
(i) Knowingly misrepresent the nature of any item or items to be
sold at auction, including, but not limited to, age, authenticity,
value, condition, or origin. A violation of this subdivision is an
infraction subject to a fine of two hundred fifty dollars ($250). In
addition, it shall be required that the buyer of the misrepresented
item be refunded the purchase price of the item or items within 24
hours of return to the auctioneer or auction company of the item by
the buyer, provided that the item is returned within five days after
the date of the auction sale.
(j) Misrepresent the terms, conditions, restrictions, or
procedures under which goods will be sold at auction. A violation of
this subdivision is an infraction subject to a fine of seventy-five
dollars ($75).
(k) Sell any item subject to sales tax without possessing a valid
and unrevoked seller's permit from the State Board of Equalization.
A violation of this subdivision is an infraction subject to a fine of
five hundred dollars ($500).
SEC. 18. Section 1201 of the Commercial Code is amended to read:
1201. The following definitions apply for purposes of this code,
subject to additional definitions contained in the subsequent
divisions of this code that apply to specific divisions or chapters
thereof, and unless the context otherwise requires:
(1) "Action," in the sense of a judicial proceeding, includes
recoupment, counterclaim, setoff, suit in equity, and any other
proceedings in which rights are determined.
(2) "Aggrieved party" means a party entitled to resort to a
remedy.
(3) "Agreement" means the bargain of the parties in fact as found
in their language or by implication from other circumstances,
including course of dealing, usage of trade, and course of
performance as provided in this code (Sections 1205, 2208, and
10207). Whether an agreement has legal consequences is determined by
the provisions of this code, if applicable, and otherwise by the law
of contracts (Section 1103). (Compare "contract.")
(4) "Bank" means any person engaged in the business of banking.
(5) "Bearer" means the person in possession of an instrument,
document of title, or certificated security payable to bearer or
indorsed in blank.
(6) "Bill of lading" means a document evidencing the receipt of
goods for shipment issued by a person engaged in the business of
transporting or forwarding goods, and that, by its terms, evidences
the intention of the issuer that the person entitled under the
document (Section 7403(4)) has the right to receive, hold, and
dispose of the document and the goods it covers. Designation of a
document by the issuer as a "bill of lading" is conclusive evidence
of that intention. "Bill of lading" includes an airbill. "Airbill"
means a document serving for air transportation as a bill of lading
does for marine or rail transportation, and includes an air
consignment note or air waybill.
(7) "Branch" includes a separately incorporated foreign branch of
a bank.
(8) "Burden of establishing" a fact means the burden of persuading
the triers of fact that the existence of the fact is more probable
than its nonexistence.
(9) "Buyer in ordinary course of business" means a person who, in
good faith and without knowledge that the sale to him or her is in
violation of the ownership rights or security interest of a third
party in the goods, buys in ordinary course from a person in the
business of selling goods of that kind, but does not include a
pawnbroker. All persons who sell minerals or the like (including oil
and gas) at wellhead or mineralhead are deemed to be persons in the
business of selling goods of that kind. "Buying" may be for cash, or
by exchange of other property or on secured or unsecured credit, and
includes receiving goods or documents of title under a preexisting
contract for sale, but does not include a transfer in bulk or as
security for, or in total or partial satisfaction of, a money debt.
(10) "Conspicuous." A term or clause is conspicuous when it is so
written that a reasonable person against whom it is to operate ought
to have noticed it. A printed heading in capitals (as:
NONNEGOTIABLE BILL OF LADING) is conspicuous. Language in the body
of a form is "conspicuous" if it is in larger or other contrasting
type or color, except that in a telegram any stated term is
"conspicuous." Whether a term or clause is "conspicuous" or not is
for decision by the court.
(11) "Contract" means the total legal obligation that results from
the parties' agreement as affected by this code and any other
applicable rules of law. (Compare "agreement.")
(12) "Creditor" includes a general creditor, a secured creditor, a
lien creditor, and any representative of creditors, including an
assignee for the benefit of creditors, a trustee in bankruptcy, a
receiver in equity, and an executor or administrator of an insolvent
debtor's or assignor's estate.
(13) "Defendant" includes a person in the position of defendant in
a cross-action or counterclaim.
(14) "Delivery," with respect to instruments, documents of title,
chattel paper, or certificated securities, means the voluntary
transfer of possession.
(15) "Document of title" includes a bill of lading, dock warrant,
dock receipt, warehouse receipt, gin ticket, or compress receipt, and
any other document that, in the regular course of business or
financing, is treated as adequately evidencing that the person
entitled under the document (Section 7403(4)) has the right to
receive, hold, and dispose of the document and the goods it covers.
To be a document of title, a document shall purport to be issued by a
bailee and purport to cover goods in the
bailee's possession that either are identified as or
are fungible portions of an identified mass.
(16) "Fault" means wrongful act, omission, or breach.
(17) "Fungible," with respect to goods or securities, means goods
or securities of which any unit is, by nature or usage of trade, the
equivalent of any other like unit. Goods that are not fungible shall
be deemed fungible for the purposes of this code to the extent that,
under a particular agreement or document, unlike units are treated
as equivalents.
(18) "Genuine" means free of forgery or counterfeiting.
(19) "Good faith" means honesty in fact in the conduct or
transaction concerned.
(20) "Holder," with respect to a negotiable instrument, means the
person in possession if the instrument is payable to bearer or, in
the case of an instrument payable to an identified person, if the
identified person is in possession. "Holder," with respect to a
document of title, means the person in possession if the goods are
deliverable to bearer or to the order of the person in possession.
(21) To "honor" is to pay or to accept and pay or, where a credit
so engages, to purchase or discount a draft complying with the terms
of the credit.
(22) "Insolvency proceedings" includes any assignment for the
benefit of creditors or other proceedings intended to liquidate or
rehabilitate the estate of the person involved.
(23) A person is "insolvent" who either has ceased to pay his or
her debts in the ordinary course of business, cannot pay his or her
debts as they become due, or is insolvent within the meaning of the
federal bankruptcy law.
(24) "Money" means a medium of exchange authorized or adopted by a
domestic or foreign government and includes a monetary unit of
account established by an intergovernmental organization or by
agreement between two or more nations.
(25) A person has "notice" of a fact when any of the following
occurs:
(a) He or she has actual knowledge of it.
(b) He or she has received a notice or notification of it.
(c) From all the facts and circumstances known to him or her at
the time in question, he or she has reason to know that it exists. A
person "knows" or has "knowledge" of a fact when he or she has
actual knowledge of it. "Discover" or "learn," or a word or phrase
of similar import, refers to knowledge rather than to reason to know.
The time and circumstances under which a notice or notification may
cease to be effective are not determined by this code.
(26) A person "notifies" or "gives" a notice or notification to
another by taking those steps that may be reasonably required to
inform the other in ordinary course whether or not the other actually
comes to know of it. A person "receives" a notice or notification
when any of the following occurs:
(a) It comes to his or her attention.
(b) It is duly delivered at the place of business through which
the contract was made or at any other place held out by him or her as
the place for receipt of these communications.
(27) Notice, knowledge, or a notice or notification received by an
organization is effective for a particular transaction from the time
it is brought to the attention of the individual conducting that
transaction and, in any event, from the time it would have been
brought to his or her attention if the organization had exercised due
diligence. An organization exercises due diligence if it maintains
reasonable routines for communicating significant information to the
person conducting the transaction and there is reasonable compliance
with the routines. Due diligence does not require an individual
acting for the organization to communicate information unless the
communication is part of his or her regular duties, or unless he or
she has reason to know of the transaction and that the transaction
would be materially affected by the information.
(28) "Organization" includes a corporation, government or
governmental subdivision or agency, business trust, estate, trust,
partnership or association, two or more persons having a joint or
common interest, or any other legal or commercial entity.
(29) "Party," as distinct from "third party," means a person who
has engaged in a transaction or made an agreement within this
division.
(30) "Person" includes an individual or an organization. (See
Section 1102.)
(31) "Purchase" includes taking by sale, discount, negotiation,
mortgage, pledge, lien, issue or reissue, gift, or any other
voluntary transaction creating an interest in property.
(32) "Purchaser" means a person who takes by purchase.
(33) "Remedy" means any remedial right to which an aggrieved party
is entitled with or without resort to a tribunal.
(34) "Representative" includes an agent, an officer of a
corporation or association, a trustee, executor, or administrator of
an estate, or any other person empowered to act for another.
(35) "Rights" includes remedies.
(36) (a) "Security interest" means an interest in personal
property or fixtures that secures payment or performance of an
obligation. The retention or reservation of title by a seller of
goods notwithstanding shipment or delivery to the buyer (Section
2401) is limited in effect to a reservation of a "security interest."
The term also includes any interest of a buyer of accounts or
chattel paper that is subject to Division 9 (commencing with Section
9101). The special property interest of a buyer of goods on
identification of those goods to a contract for sale under Section
2401 is not a "security interest," but a buyer may also acquire a
"security interest" by complying with Division 9 (commencing with
Section 9101). Unless a consignment is intended as security,
reservation of title thereunder is not a "security interest," but a
consignment in any event is subject to the provisions on consignment
sales (Section 2326).
(b) Whether a transaction creates a lease or security interest is
determined by the facts of each case. However, a transaction creates
a security interest if the consideration the lessee is to pay the
lessor for the right to possession and use of the goods is an
obligation for the term of the lease not subject to termination by
the lessee, and any of the following conditions applies:
(i) The original term of the lease is equal to or greater than the
remaining economic life of the goods.
(ii) The lessee is bound to renew the lease for the remaining
economic life of the goods or is bound to become the owner of the
goods.
(iii) The lessee has an option to renew the lease for the
remaining economic life of the goods for no additional consideration
or nominal additional consideration upon compliance with the lease
agreement.
(iv) The lessee has an option to become the owner of the goods for
no additional consideration or nominal additional consideration upon
compliance with the lease agreement.
(c) A transaction does not create a security interest merely
because it provides one or more of the following:
(i) That the present value of the consideration the lessee is
obligated to pay the lessor for the right to possession and use of
the goods is substantially equal to or greater than the fair market
value of the goods at the time the lease is entered into.
(ii) That the lessee assumes risk of loss of the goods, or agrees
to pay taxes, insurance, filing, recording, or registration fees, or
service or maintenance costs with respect to the goods.
(iii) That the lessee has an option to renew the lease or to
become the owner of the goods.
(iv) That the lessee has an option to renew the lease for a fixed
rent that is equal to or greater than the reasonably predictable fair
market rent for the use of the goods for the term of the renewal at
the time the option is to be performed.
(v) That the lessee has an option to become the owner of the goods
for a fixed price that is equal to or greater than the reasonably
predictable fair market value of the goods at the time the option is
to be performed.
(vi) In the case of a motor vehicle, as defined in Section 415 of
the Vehicle Code, or a trailer, as defined in Section 630 of that
code, that is not to be used primarily for personal, family, or
household purposes, that the amount of rental payments may be
increased or decreased by reference to the amount realized by the
lessor upon sale or disposition of the vehicle or trailer. Nothing
in this subparagraph affects the application or administration of the
Sales and Use Tax Law (Part 1 (commencing with Section 6001),
Division 2, Revenue and Taxation Code).
(d) For purposes of this subdivision (36), all of the following
apply:
(i) Additional consideration is not nominal if (A) when the option
to renew the lease is granted to the lessee, the rent is stated to
be the fair market rent for the use of the goods for the term of the
renewal determined at the time the option is to be performed, or (B)
when the option to become the owner of the goods is granted to the
lessee, the price is stated to be the fair market value of the goods
determined at the time the option is to be performed. Additional
consideration is nominal if it is less than the lessee's reasonably
predictable cost of performing under the lease agreement if the
option is not exercised.
(ii) "Reasonably predictable" and "remaining economic life of the
goods" are to be determined with reference to the facts and
circumstances at the time the transaction is entered into.
(iii) "Present value" means the amount as of a date certain of one
or more sums payable in the future, discounted to the date certain.
The discount is determined by the interest rate specified by the
parties if the rate is not manifestly unreasonable at the time the
transaction is entered into; otherwise, the discount is determined by
a commercially reasonable rate that takes into account the facts and
circumstances of each case at the time the transaction was entered
into.
(37) "Send," in connection with any writing or notice, means to
deposit in the mail or deliver for transmission by any other usual
means of communication with postage or cost of transmission provided
for and properly addressed and, in the case of an instrument, to an
address specified thereon or otherwise agreed or, if there be none,
to any address reasonable under the circumstances. The receipt of
any writing or notice within the time in which it would have arrived
if properly sent has the effect of a proper sending. When a writing
or notice is required to be sent by registered or certified mail,
proof of mailing is sufficient, and proof of receipt by the addressee
is not required unless the words "with return receipt requested" are
also used.
(38) "Signed" includes any symbol executed or adopted by a party
with present intention to authenticate a writing.
(39) "Surety" includes guarantor.
(40) "Telegram" includes a message transmitted by radio, teletype,
cable, any mechanical method of transmission, or the like.
(41) "Term" means that portion of an agreement that relates to a
particular matter.
(42) "Unauthorized" signature means one made without actual,
implied, or apparent authority, and includes a forgery.
(43) "Value." Except as otherwise provided with respect to
negotiable instruments and bank collections (Sections 3303, 4210, and
4211), a person gives "value" for rights if he or she acquires them
in any of the following ways:
(a) In return for a binding commitment to extend credit or for the
extension of immediately available credit whether or not drawn upon
and whether or not a chargeback is provided for in the event of
difficulties in collection.
(b) As security for, or in total or partial satisfaction of, a
preexisting claim.
(c) By accepting delivery pursuant to a preexisting contract for
purchase.
(d) Generally, in return for any consideration sufficient to
support a simple contract.
(44) "Warehouse receipt" means a document evidencing the receipt
of goods for storage issued by a warehouseman (Section 7102), and
that, by its terms, evidences the intention of the issuer that the
person entitled under the document (Section 7403(4)) has the right to
receive, hold, and dispose of the document and the goods it covers.
Designation of a document by the issuer as a "warehouse receipt" is
conclusive evidence of that intention.
(45) "Written" or "writing" includes printing, typewriting, or any
other intentional reduction to tangible form.
SEC. 19. Section 8450 of the Education Code is amended to read:
8450. (a) All child development contractors are encouraged to
develop and maintain a reserve within the child development fund,
derived from earned but unexpended funds. Child development
contractors may retain all earned funds. For the purpose of this
section, "earned funds" are those for which the required number of
eligible service units have been provided.
(b) Earned funds may not be expended for any activities proscribed
by Section 8406.7. Earned but unexpended funds shall remain in the
contractor's reserve account within the child development fund and
shall be expended only by direct service child development programs
that are funded under contract with the State Department of
Education.
(c) Notwithstanding subdivisions (a) and (b), a contractor may
retain a reserve fund balance for a resource and referral program,
separate from the balance retained pursuant to subdivision (b), not
to exceed 3 percent of the contract amount. Funds from this reserve
account may be expended only by resource and referral programs that
are funded under contract with the State Department of Education.
(d) Notwithstanding subdivisions (a) and (b), a contractor may
retain a reserve fund for alternative payment model and certificate
child care contracts, separate from the reserve fund retained
pursuant to subdivisions (b) and (c). Funds from this reserve
account may be expended only by alternative payment model and
certificate child care programs that are funded under contract with
the State Department of Education. The reserve amount allowed by
this section may not exceed either of the following, whichever is
greater:
(1) Two percent of the sum of the parts of each contract to which
that contractor is a party that is allowed for administration
pursuant to Section 8276.7 and that is allowed for supportive
services pursuant to the provisions of the contract.
(2) One thousand dollars ($1,000).
(e) Each contractor's audit shall identify any funds earned by the
contractor for each contract through the provision of contracted
services in excess of funds expended.
(f) Any interest earned on reserve funds shall be included in the
fund balance of the reserve. This reserve fund shall be maintained
in an interest-bearing account.
(g) Moneys in a contractor's reserve fund may be used only for
expenses that are reasonable and necessary costs as defined in
subdivision (o) of Section 8208.
(h) Any reserve fund balance in excess of the amount authorized
pursuant to subdivisions (c) and (d) shall be returned to the State
Department of Education pursuant to procedures established by the
department and reappropriated as second-year funds consistent with
Section 8278.
(i) Upon termination of all child development contracts between a
contractor and the State Department of Education, all moneys in a
contractor's reserve fund shall be returned to the department
pursuant to procedures established by the department, and
reappropriated as second-year funds consistent with Section 8278.
(j) Expenditures from, additions to, and balances in, the reserve
fund shall be included in the agency's annual financial statements
and audit.
SEC. 20. Section 15301 of the Education Code is amended to read:
15301. (a) Any school district or community college district that
has a community facilities district formed pursuant to the
Mello-Roos Community Facilities Act of 1982, as set forth in Chapter
2.5 (commencing with Section 53311) of Part 1 of Division 2 of Title
5 of the Government Code, that has as one of its purposes the
construction of school facilities within a portion of the territory
of the school district or community college district, may proceed
under this chapter.
(b) The boundaries of any school facilities improvement district
formed pursuant to this chapter shall include all of the portion of
the territory within the boundaries of the school district or
community college district that is not located within the boundaries
of the community facilities district as described in subdivision (a).
(c) A school district or community college district may proceed
under this chapter without meeting the requirements of subdivisions
(a) and (b) if the governing board of the school district or
community college district determines that it is necessary and in the
best interest of the school district or community college district,
respectively, to form a school facilities improvement district
pursuant to this chapter to finance any or all of the improvements
described in Section 15302. As a part of that determination, the
governing board of the school district or community college district
shall make a finding that the overall cost of financing the bonds
issued pursuant to this chapter would be less than the overall cost
of other school facilities financing options available to the school
district or community college district, including, but not limited
to, issuing bonds pursuant to the Mello-Roos Community Facilities Act
of 1982. The governing board of the school district or community
college district proceeding under this subdivision shall define the
boundaries of the school facilities improvement district to include
any portion of territory within the jurisdiction of the school
district or community college district, except that the boundaries
may not include all or a portion of the territory of the community
facilities district described in subdivision (a).
SEC. 21. Section 15320 of the Education Code is amended to read:
15320. Whenever the governing board of a school district or
community college district meeting the requirements set forth in
Section 15301 determines that a school facilities improvement
district is necessary, the governing board shall adopt a resolution
of intention that states all of the following:
(a) The intention of the governing board to form the proposed
school facilities improvement district.
(b) The purpose for which the proposed school facilities
improvement district is to be formed, consistent with the
requirements set forth in Section 15302.
(c) The estimated cost of the school facilities improvement
project.
(d) That any taxes levied for the purpose of financing the general
obligation bonds issued to finance the project shall be levied
exclusively upon the lands in the proposed school facilities
improvement district.
(e) That a map showing the exterior boundaries of the proposed
school facilities improvement district is on file with the governing
board of the school district or community college district and is
available for inspection by the public. The boundaries of the school
facilities improvement district shall meet the requirements set
forth in subdivision (b) of Section 15301.
(f) The time and place for a hearing by the governing board on the
formation of the proposed school facilities improvement district.
(g) That any interested persons, including all persons owning
lands in the school district or community college district, or in the
proposed school facilities improvement district, may appear and be
heard.
SEC. 22. Section 15327 of the Education Code is amended to read:
15327. The governing board of the school district or community
college district in which a school facilities improvement district
has been formed shall have the same rights, powers, duties, and
responsibilities with respect to the formation and government of the
school facilities improvement district as the governing board has
with respect to the school district or community college district.
SEC. 23. Section 15356 of the Education Code is amended to read:
15356. (a) (1) The board of supervisors of the county in which
the county superintendent of schools has jurisdiction over the school
district or community college district in which the school
facilities improvement district is located shall prescribe the form
of the bonds by an order entered upon its minutes.
(2) The bonds shall be signed by the chairperson of the board of
supervisors, or by any other member thereof as the board of
supervisors shall, by resolution adopted by a four-fifths vote of all
its members, authorize and designate for that purpose, and also
signed by the treasurer of the county, and shall be countersigned by
the clerk of the board of supervisors or by a deputy of either of the
officers. Unless the board of supervisors otherwise provides, all
the signatures and countersignatures may be printed, lithographed,
engraved, or otherwise mechanically reproduced except that one of the
signatures or countersignatures to the bonds shall be manually
affixed. Any signature may be affixed in accordance with the
provisions of the Uniform Facsimile Signatures of Public Officials
Act (Chapter 6 (commencing with Section 5500) of Title 1 of the
Government Code).
(3) All expenses incurred for the preparation, sale, and delivery
of the school facilities improvement bonds including, but not limited
to, fees of an independent financial consultant, the publication of
the official notice of sale of the bonds, the preparation, printing,
and distribution of the official statement, the obtaining of a
rating, the purchase of insurance insuring the prompt payment of
interest and principal, the preparation of the certified copy of the
transcript for the successful bidder, the printing of the bonds, and
legal fees of independent bond counsel retained by the school
facilities improvement district issuing the bonds are legal charges
against the funds of the school facilities improvement district
issuing the bonds and may be paid from the proceeds of sale of the
bonds.
(b) Notwithstanding subdivision (a), the board of supervisors may,
in its discretion, determine that all of the required signatures and
countersignatures shall be by facsimiles, provided, however, that
the bonds shall not be valid or become obligatory for any purpose
until manually signed by an authenticating agent duly appointed by
the board or its authorized designee.
SEC. 24. Section 15357 of the Education Code is amended to read:
15357. The board of supervisors shall establish within the county
treasury a school facilities improvement fund for each school
facilities improvement district for the purpose of depositing the
proceeds of the bonds issued pursuant to this chapter. The board of
supervisors shall also establish within the county treasury a school
facilities improvement bond interest and sinking fund for each school
facilities improvement district.
SEC. 25. Section 15359 of the Education Code is amended to read:
15359. Before selling the bonds, or any part of them, the board
of supervisors, as appropriate, shall advertise for bids at least two
weeks in a daily or weekly newspaper of general circulation
published in the county whose county superintendent of schools has
jurisdiction over the governing board of the school district or
community college district in which the school facilities improvement
district is located or, if there is no newspaper published in the
county, in a newspaper published in another county in the state
having a general circulation in the county.
SEC. 26. Section 15359.2 of the Education Code is amended to read:
15359.2. (a) The issuing school facilities improvement district,
by action of the governing board of the school district or community
college district in which the school facilities improvement district
is located, may prepare, or have prepared, bond brochures to serve as
a prospectus for bond buyers to assist in the satisfactory sale of
the bonds. The expense of the brochures shall be payable out of the
funds of the district. The brochures may be prepared only after the
issuance of the bonds to be sold has been approved by the electors of
the school facilities improvement district pursuant to Article 4
(commencing with Section 15340).
(b) The issuing school facilities improvement district, by action
of the governing board in which the school facilities improvement
district is located, may expend funds of the school facilities
improvement district for the purposes of advertising the availability
of the bonds for purchase in any publication or newspaper that, in
the opinion of that governing board, will give notice to prospective
bond buyers that the bonds are available for purchase by bond buyers.
SEC. 27. Section 42238.145 of the Education Code is amended to
read:
42238.145. For the purposes of this article, the revenue limit
for each school district shall be reduced by a deficit factor, as
follows:
(a) (1) For the 1994-95 fiscal year, the revenue limit for each
school district determined pursuant to this article shall be reduced
by an 11.01-percent deficit factor.
(2) For the 1995-96 fiscal year, the revenue limit for each school
district determined pursuant to this article shall be reduced by a
10.12-percent deficit factor.
(3) For the 1996-97 and 1997-98 fiscal years, the revenue limit
for each school district determined pursuant to this article shall be
reduced by a 9.967-percent deficit factor, as adjusted pursuant to
Section 42238.41.
(b) (1) The revenue limit for the 1994-95 fiscal year for each
school district shall be determined as if the revenue limit for each
school district had been determined for the 1993-94 fiscal year
without being reduced by the deficit factor required pursuant to
Section 42238.14.
(2) When computing the revenue limit for each school district for
the 1995-96 or any subsequent fiscal year pursuant to this article,
the revenue limit shall be determined as if the revenue limit for
that school district had been determined for the previous fiscal year
without being reduced by the deficit factor specified in this
section.
SEC. 28. Section 44254 of the Education Code is amended to read:
44254. (a) The commission shall establish standards for a
restricted reading certificate to enable holders of a teaching
credential to provide the early and continuing development of reading
and language arts skills and the earliest possible correction of a
pupil's reading difficulties.
(b) The standards and qualifications for
the restricted reading certificate shall include, but not be limited
to, demonstrated knowledge of the following:
(1) Current and confirmed research in the teaching of basic
reading skills, including research in ongoing, diagnostic techniques
that inform teaching and assessment.
(2) Techniques for teaching basic reading skills that include
direct instruction in phonemic awareness, direct systematic, explicit
phonics, and comprehension skills.
(3) Early intervention techniques.
(c) A candidate for a restricted reading certificate shall
receive, within a clinical setting, guided practice in all of the
skills described in subdivision (b).
(d) The commission may issue a restricted reading certificate to a
holder of a teaching credential who meets the commission's
standards.
(e) For purposes of this section, "direct systematic, explicit
phonics" means spelling patterns, the direct instruction of sound and
symbol relationships, and practice in reading connected, decodable
text.
SEC. 29. Section 52335.9 of the Education Code is amended to read:
52335.9. For the 1996-97 fiscal year only, the Superintendent of
Public Instruction shall recalculate the base revenue limit for each
ROC/P for the purposes of subdivision (a) of Section 52335.2 to
reflect the actual amount received by each ROC/P in the 1995-96
fiscal year, including funding received pursuant to the Budget Act of
1996 (Ch. 162, Stats. 1996) for the cost-of-living adjustment for
the 1996-97 fiscal year and for growth in average daily attendance,
but excluding the following:
(a) Any state funds made available as a result of local property
tax revenues deducted pursuant to Section 52335.3.
(b) Funding allocated pursuant to Provision 7 of Item
6110-105-0001 of Section 2.00 of the Budget Act of 1996 (Ch. 162,
Stats. 1996).
SEC. 30. Section 52487 of the Education Code is amended to read:
52487. (a) There is hereby created within the State Department of
Education the Home Economics Careers and Technology Vocational
Education Unit, to be staffed by qualified home economics
education-trained personnel, to assist school districts in the
establishment and maintenance of the educational programs provided
for by this article.
(b) The staffing of the unit shall be at least 3.3
personnel-years.
(c) The State Supervisor of the Home Economics Careers and
Technology Vocational Education Unit, under the direction of the
Superintendent of Public Instruction, shall have responsibility for
the administration of the program set forth in this article, as well
as for the articulation of the program to the requirements and
mandates of federally assisted vocational education.
(d) An appropriate number of employees shall serve as program
consultants in the Home Economics Careers and Technology Vocational
Education Unit, and shall be available to provide assistance to
school districts. To the extent possible, the program consultants
shall be geographically located in areas that are most readily
accessible to the school districts they assist. At least one
consultant shall be responsible for the coordination of the
leadership development activities of pupil home economics careers and
technology organizations and associations.
(e) The State Department of Education shall accomplish the
staffing of the Home Economics Careers and Technology Vocational
Education Unit in compliance with this article by reassigning
priorities in staff assignments within the department so that the
staffing results in no new costs to the state.
SEC. 31. The heading of Article 6 (commencing with Section 60350)
of Chapter 2 of Part 33 of the Education Code is amended and
renumbered to read:
Article 7. Core Reading Program Instructional Materials
SEC. 32. Section 76002 of the Education Code is amended to read:
76002. For the purposes of receiving state apportionments, a
community college district may include high school pupils who attend
a community college within the district pursuant to Sections 48800
and 76001 in the district's report of full-time equivalent students
(FTES) only if those pupils are enrolled in community college classes
that are open to the general public.
SEC. 33. Section 87869 of the Education Code, as added by Section
2 of Chapter 943 of the Statutes of 1996, is repealed.
SEC. 34. The heading of Division 0.5 of the Elections Code, as
added by Chapter 91 of the Statutes of 1995, is repealed.
SEC. 35. Section 2157 of the Elections Code is amended to read:
2157. Subject to this chapter, the affidavit of registration
shall be in a form prescribed by regulations adopted by the Secretary
of State. The affidavit shall:
(a) Contain the information prescribed in Section 2150.
(b) Be sufficiently uniform among the separate counties to allow
for the processing and use by one county of an affidavit completed in
another county.
(c) Allow for the inclusion of informational language to meet the
specific needs of that county, including but not limited to, the
return address of the elections official in that county, and a phone
number at which a voter can obtain elections information in that
county.
(d) Be included on one portion of a multipart card, to be known as
a voter registration card, the other portions of which shall include
information sufficient to facilitate completion and mailing of the
affidavit. The affidavit portion of the multipart card shall be
numbered according to regulations adopted by the Secretary of State.
For purposes of facilitating the distribution of voter registration
cards as provided in Section 2158, there shall be attached to the
affidavit portion a receipt. The receipt shall be separated from the
body of the affidavit by a perforated line.
(e) Be returnable to the county elections official as a
self-enclosed mailer with postage prepaid by the Secretary of State.
Nothing contained in this division shall prevent the use of voter
registration cards and affidavits of registration in existence on the
effective date of this section and produced pursuant to regulations
of the Secretary of State, and all references to voter registration
cards and affidavits in this division shall be applied to the
existing voter registration cards and affidavits of registration.
SEC. 36. Section 12106 of the Elections Code is amended to read:
12106. (a) In each jurisdiction where the elections official
determines that the public interest, convenience, and necessity
require the local publication of the list of the names of precinct
board members appointed and polling places designated for each
election precinct in order to afford adequate notice of this subject
to the electorate, publication of this list shall be made as provided
in this section and Section 12105.
(b) After making a determination pursuant to subdivision (a), the
elections official shall divide and distribute the list of precinct
board members and polling places and cause the same to be published
at least one week before the election in newspapers of general
circulation published in different places in the jurisdiction. The
list of precinct board members appointed need not be in precinct
order for purposes of publication, at the discretion of the elections
official.
(c) Divisions of the list of names of the precinct board members
and polling places may be published in that daily newspaper of
general circulation published or circulated in one or more cities in
the county, with the exception of the county seat, that is determined
will give to the electorate in each city adequate notice of the
election. If there is no daily newspaper, publication may be made in
a semiweekly newspaper, a biweekly newspaper, or a weekly newspaper
of general circulation that is determined will give the electorate in
the city adequate notice of the election.
(d) The list of names of the precinct board members appointed and
polling places designated for various portions of the unincorporated
area of the county and of the county seat may be published in those
daily, semiweekly, biweekly, or weekly newspapers of general
circulation published or circulated within the various portions of
the unincorporated area and the county seat, deemed by the county
elections official to be those newspapers that will give adequate
notice of the election to the voters of the respective portions of
the unincorporated area and the county seat.
SEC. 37. The heading of Division 14 (commencing with Section
10100) of the Family Code is amended and renumbered to read:
DIVISION 15. FRIEND OF THE COURT ACT
SEC. 38. Section 17207 of the Financial Code is amended to read:
17207. The commissioner shall charge and collect the following
fees and assessments:
(a) For filing an application for an escrow agent's license, six
hundred twenty-five dollars ($625) for the first office or location
and four hundred twenty-five dollars ($425) for each additional
office or location.
(b) For filing an application for a duplicate of an escrow agent's
license lost, stolen, or destroyed, or for replacement, upon a
satisfactory showing of such loss, theft, destruction, or surrender
of certificate for replacement, two dollars ($2).
(c) For investigation services in connection with each
application, one hundred dollars ($100), and for investigation
services in connection with each additional office application, one
hundred dollars ($100).
(d) For holding a hearing in connection with the application, as
set forth under Section 17209.2, the actual costs experienced in each
particular instance.
(e) (1) Each escrow agent shall pay to the commissioner for the
support of this division for the ensuing year an annual license fee
of two thousand dollars ($2,000) for each office or location.
(2) On or before May 30 in each year, the commissioner shall
notify each escrow agent by mail of the amount of the annual license
fee levied against it, and that the payment of the invoice is payable
by the escrow agent within 30 days after receipt of notification by
the commissioner.
(3) If payment is not made within 30 days, the commissioner may
assess and collect a penalty, in addition to the annual license fee,
of 10 percent of the fee for each month or part of a month that the
payment is delayed or withheld.
(4) If an escrow agent fails to pay the amount due on or before
the June 30 following the day upon which payment is due, the
commissioner may by order summarily suspend or revoke the certificate
issued to the company.
(5) If, after an order is made pursuant to paragraph (4), a
request for a hearing is filed in writing and a hearing is not held
within 60 days thereafter, the order is deemed rescinded as of its
effective date. During any period when its certificate is revoked or
suspended, a company shall not conduct business pursuant to this
division, except as may be permitted by order of the commissioner.
However, the revocation, suspension, or surrender of a certificate
shall not affect the powers of the commissioner as provided in this
division.
(f) Fifty dollars ($50) for investigation services in connection
with each application for qualification of any person under Section
17200.8, other than investigation services under subdivision (c) of
this section.
(g) A fee not to exceed twenty-five dollars ($25) for the filing
of a notice or report required by rules adopted pursuant to
subdivision (a) or Section 17203.1.
(h) (1) If costs and expenses associated with the enforcement of
this division, including overhead, are or will be incurred by the
commissioner during the year for which the annual license fee is
levied, and that will or could result in the commissioner's
incurring of costs and expenses, including overhead, in excess of the
costs and expenses, including overhead, budgeted for expenditure for
the year in which the annual license fee is levied, then the
commissioner may levy a special assessment on each escrow agent for
each office or location in an amount estimated to pay for the actual
costs and expenses, including overhead, in an amount not to exceed
five hundred dollars ($500) for each office or location. The
commissioner shall notify each escrow agent by mail of the amount of
the special assessment levied against it, and that payment of the
special assessment is payable by the escrow agent within 30 days of
receipt of notification by the commissioner. The funds received from
the special assessment shall be deposited into the State
Corporations Fund and shall be used only for the purposes for which
the special assessment is made.
(2) If payment is not made within 30 days, the commissioner may
assess and collect a penalty, in addition to the special assessment,
of 10 percent of the special assessment for each month or part of a
month that the payment is delayed or withheld. If an escrow agent
fails to pay the special assessment on or before 30 days following
the day upon which payment is due, the commissioner may by order
summarily suspend or revoke the certificate issued to the company.
If an order is made under this subdivision, the provisions of
paragraph (5) of subdivision (e) of this section shall apply.
(3) If the amount collected pursuant to this subdivision exceeds
the actual costs and expenses, including overhead, incurred in the
administration and enforcement of this division and any deficit
incurred, the excess shall be credited to each escrow agent on a pro
rata basis.
(i) This section shall remain in effect only until January 1,
2002, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2002, deletes or extends
that date.
SEC. 39. Section 21301 of the Financial Code is amended to read:
21301. (a) A license granted pursuant to Section 21300 shall be
renewable the second year from the date of issue, and every other
year thereafter, upon the filing of a renewal application and
compliance with the requirements of Section 21303. The Department of
Justice and the chief of police, the sheriff, or, where appropriate,
the police commission may charge a fee for the license renewal not
to exceed the actual processing costs. The licensing authority shall
collect the fee and transmit the fee and a copy of the renewed
license to the Department of Justice.
(b) The license shall be subject to forfeiture by the licensing
authority, and the licensee's activities as a pawnbroker shall be
subject to being enjoined pursuant to Section 21302, for breach of
any of the following conditions:
(1) The business shall be carried on only at the location
designated on the license. The license shall designate all locations
where property belonging to the business is stored. Property of the
business may be stored at locations not designated on the license
only with the written consent of the local licensing authority.
(2) The license or a copy thereof, certified by the licensing
authority, shall be displayed on the premises in plain view of the
public.
(3) The licensee shall not engage in any act that the licensee
knows to be in violation of this article.
(4) The licensee shall not be convicted of an attempt to receive
stolen property or other offense involving stolen property. For the
purposes of this paragraph, "convicted" means a plea or verdict of
guilty or a conviction following a plea of nolo contendere. Any
action that the chief of police, the sheriff, or, where appropriate,
the police commission, is permitted to take following that conviction
may be taken when the time for appeal has elapsed, the judgment of
conviction has been affirmed on appeal, or an order granting
probation is made suspending the imposition of sentence, irrespective
of a subsequent order under Section 1203.4 of the Penal Code.
(c) Notwithstanding subdivisions (a) and (b), no renewal
application for a pawnbroker's license may be denied, nor may his or
her pawnbroker's license be forfeited, solely on the grounds that the
applicant violated any provision contained in Chapter 1 (commencing
with Section 21000), Chapter 2 (commencing with Section 21200) of
this division, or Article 4 (commencing with Section 21625) or
Article 5 (commencing with Section 21650) of Chapter 9 of Division 8,
of the Business and Professions Code unless the violation
demonstrates a pattern of conduct.
SEC. 40. Section 21304 of the Financial Code is amended to read:
21304. (a) As a condition precedent to the issuing of a
pawnbroker's license, the applicant shall file with the issuing
authority a financial statement confirming that the applicant has at
least one hundred thousand dollars ($100,000) in the form of liquid
assets readily available for use in each licensed business for which
the application is made, not including real property, or, in the
absence of one hundred thousand dollars ($100,000), an applicant may
post a nonrevocable surety bond in the amount of one hundred thousand
dollars ($100,000) or the applicant may, in lieu of posting a surety
bond, deposit money, certificates, accounts, bonds, or notes, as
provided in Section 995.710 of the Code of Civil Procedure. The
financial statement shall be filed by the applicant under penalty of
perjury and signed by a California certified public accountant
verifying that he or she has reviewed the financial statement.
(b) This section does not apply to any person holding a secondhand
dealer's license pursuant to Section 21641 or 21642 of the Business
and Professions Code who is actively engaged as a pawnbroker on the
effective date of this section.
SEC. 41. Section 3332 of the Food and Agricultural Code is amended
to read:
3332. The board may do any of the following:
(a) Contract.
(b) Accept funds or gifts of value from the United States or any
person to aid in carrying out the purposes of this part.
(c) Conduct or contract for programs, either independently or in
cooperation with any individual, public or private organization, or
federal, state, or local governmental agency.
(d) Establish and maintain a bank checking account or a savings
and loan association account, approved by the Director of Finance in
accordance with Sections 16506 and 16605 of the Government Code, for
depositing funds appropriated to the California Exposition and State
Fair pursuant to Section 19623 of the Business and Professions Code.
The Department of Finance shall audit the account at the end of each
fiscal year.
(e) Make or adopt all necessary orders, rules, or regulations for
governing the activities of the California Exposition and State Fair.
(f) Delegate to the officers and employees of the California
Exposition and State Fair the authority to appoint civil service
personnel according to state civil service procedures.
(g) Delegate to the officers and employees of the California
Exposition and State Fair the exercise of powers vested in the board
as the board may deem desirable for the orderly management and
operation of the California Exposition and State Fair.
(h) Appoint all necessary marshals and police to keep order and
preserve peace at the California Exposition and State Fair premises
on a year-round basis, who shall have the powers of peace officers
specified in Section 830.2 of the Penal Code. A peace officer of the
Department of the California Highway Patrol may be employed as a
peace officer while off duty from his or her regular employment,
subject to those conditions as may be set forth by the Commissioner
of the California Highway Patrol. At least 75 percent of the persons
appointed pursuant to this subdivision shall possess the basic
certificate issued by the Commission on Peace Officer Standards and
Training. The remaining 25 percent may be appointed if the person
has completed a Peace Officer Standards and Training certified
academy or possesses a Level One Reserve Certificate (as defined in
Section 832.6 of the Penal Code).
(i) Lease, with the approval of the Department of General
Services, any of its property for any purpose for any period of time.
(j) Use or manage any of its property, with the approval of the
Department of General Services, jointly or in connection with any
lessee or sublessee, for any purpose approved by the board.
SEC. 42. Section 12648 of the Food and Agricultural Code is
amended to read:
12648. (a) Notwithstanding any other provision of this code, a
site within this state that has been treated with, or a plant, crop,
or commodity, whether grown in this state or elsewhere, that has been
treated with, or grown on a site treated with, a pesticide that is
not registered for use on that plant, crop, commodity, or site is a
public nuisance and may be seized by order of the director.
(b) The unlawful treatment described in subdivision (a) creates,
in favor of the director, rebuttable presumptions affecting the
burden of producing evidence pursuant to Section 604 of the Evidence
Code as follows:
(1) That the treated plant, crop, commodity, or site, or any
plant, crop, or commodity grown on the treated site, presents a
hazard to human health or the environment.
(2) That the pesticide was used to gain an unfair business
advantage for the owner or person in possession or control of the
plant, crop, commodity, or site.
(c) The director shall provide notice to the owner or person in
possession or control of the plant, crop, commodity, or site prior to
seizure, unless the director has reason to believe that prior notice
would result in the loss of control by the director of that plant,
crop, commodity, or site, in which case notice shall be given as soon
as practical, but in any event within five days of the seizure. The
notice shall specify the grounds for the seizure and provide that
the owner or person in possession or control, within 15 days of
receipt of the notice, may request a hearing before the director to
contest the seizure or rebut the presumptions specified in
subdivision (b). The hearing shall be held not later than five days
from the date the request of the owner or person is received by the
director. The director shall render a written decision within five
days of the hearing or within five days of the expiration of the time
to request a hearing if no hearing was requested. The decision
shall either release the plant, crop, commodity, or site from seizure
or make any of the following orders:
(1) Destruction of the plant, crop, or commodity.
(2) Prohibition of harvest or sale of the plant, crop, or
commodity grown on the site.
(3) Prohibition of the use or planting of the site, which may be
for the period of any plant back time specified for the pesticide
used on the site.
(4) Any other appropriate action or measure.
(d) Review of the decision of the director may be sought by the
owner or person in possession or control of the plant, crop,
commodity, or site pursuant to Section 1094.5 of the Code of Civil
Procedure.
SEC. 43. Section 12815 of the Food and Agricultural Code is
amended to read:
12815. If a manufacturer, importer, or dealer in pesticides that
applies for registration of pesticides has complied with this chapter
and the regulations that are adopted pursuant to it, the director
shall register each pesticide that is sought to be registered and
issue a certificate of registration to the applicant that authorizes
the manufacture and sale of the pesticide in this state.
SEC. 44. Section 13144 of the Food and Agricultural Code is
amended to read:
13144. (a) Not later than December 1, 1986, the department shall
establish specific numerical values for water solubility, soil
adsorption coefficient (Koc), hydrolysis, aerobic and anaerobic soil
metabolism, and field dissipation. The values established by the
department shall be at least equal to those established by the
Environmental Protection Agency. The department may revise the
numerical values when the department finds that the revision is
necessary to protect the groundwater of the state. The numerical
values established or revised by the department shall always be at
least as stringent as the values being used by the Environmental
Protection Agency at the time the values are established or revised
by the department.
(b) Not later than December 1, 1987, and annually thereafter, the
director shall report the following information to the Legislature,
the State Department of Health Services, and the board, for each
pesticide registered for agricultural use:
(1) A list of each active ingredient, other specified ingredient,
or degradation product of an active ingredient of a pesticide for
which there is a groundwater protection data gap.
(2) A list of each pesticide that contains an active ingredient,
other specified ingredients, or degradation product of an active
ingredient that is greater than one or more of the numerical values
established pursuant to subdivision (a), or is less than the
numerical value in the case of soil adsorption coefficient, in both
of the following categories:
(A) Water solubility or soil adsorption coefficient (Koc).
(B) Hydrolysis, aerobic soil metabolism, anaerobic soil
metabolism, or field dissipation.
(3) For each pesticide listed pursuant to paragraph (2) for which
information is available, a list of the amount sold in California
during the most recent year for which sales information is available
and where and for what purpose the pesticide was used, when this
information is available in the pesticide use report.
(c) The department shall determine, to the extent possible, the
toxicological significance of the degradation products and other
specified ingredients identified pursuant to paragraph (2) of
subdivision (b).
SEC. 45. Section 46003.5 of the Food and Agricultural Code is
amended to read:
46003.5. (a) Following the promulgation of the national materials
list by the United States Department of Agriculture pursuant to the
federal Organic Foods Production Act of 1990 (7 U.S.C. Secs. 6501 to
6522, incl.), the secretary, in consultation with the Organic Food
Advisory Board, shall adopt regulations listing specific substances
that are in compliance or not in compliance with the definition of
"prohibited materials," as defined in subdivision (p) of Section
110815 of the Health and Safety Code, for use in the production and
handling of organic foods.
Prior to the promulgation of the national materials list by the
United States Department of Agriculture pursuant to the federal
Organic Foods Production Act of 1990, the Organic Food Advisory
Board, in consultation with the secretary, shall determine which, if
any, substance may be
allowed for use in the production and handling of organic foods in
this state. Within 90 days of promulgation of the national materials
list by the United States Department of Agriculture, the Organic
Food Advisory Board, in consultation with the secretary, shall
determine which, if any, substance allowed for use by the national
materials list may be allowed for use in the production and handling
of organic foods in this state.
(b) Prior to adoption of these regulations, the secretary shall
issue administratively a preliminary, nonexhaustive list of materials
that are in compliance or not in compliance with subdivision (p) of
Section 110815 of the Health and Safety Code based on the listings of
permitted materials published by California Certified Organic
Farmers, the Organic Foods Production Association of North America,
and the Departments of Agriculture of the States of Oregon and
Washington.
SEC. 46. Section 951 of the Government Code is amended to read:
951. Notwithstanding Section 425.10 of the Code of Civil
Procedure, any complaint for damages in any civil action brought
against a publicly elected or appointed state or local officer, in
his or her individual capacity, where the alleged injury is
proximately caused by the officer acting under color of law, shall
allege with particularity sufficient material facts to establish the
individual liability of the publicly elected or appointed state or
local officer and the plaintiff's right to recover therefrom.
SEC. 47. Section 8670.7 of the Government Code is amended to read:
8670.7. (a) The administrator, subject to the Governor, has the
primary authority to direct prevention, removal, abatement, response,
containment, and cleanup efforts with regard to all aspects of any
oil spill in the marine waters of the state, in accordance with any
applicable marine facility or vessel contingency plan and the state
oil spill contingency plan. The administrator shall cooperate with
any federal on-scene coordinator, as specified in the National
Contingency Plan.
(b) The administrator shall implement the state oil spill
contingency plan, required pursuant to Section 8574.1, to the fullest
extent possible.
(c) The administrator shall do both of the following:
(1) Be present at the location of any oil spill of more than
100,000 gallons in marine waters, as soon as possible after notice of
the discharge.
(2) Ensure that persons trained in oil spill response and cleanup,
whether employed by the responsible party, the state, or another
private or public person or entity, are onsite to respond to,
contain, and clean up any oil spill in marine waters, as soon as
possible after notice of the discharge.
(d) Throughout the response and cleanup process, the administrator
shall apprise the members of the State Interagency Oil Spill
Committee, the air quality management district or air pollution
control district having jurisdiction over the area in which the oil
spill occurred, and the local government entities that are affected
by the spill.
(e) The administrator, with the assistance of the State Fire
Marshal, the State Lands Commission, and the federal on-scene
coordinator, shall determine the cause and amount of the discharge.
(f) The administrator shall have the state authority over the use
of all response methods, including, but not limited to, in situ
burning, dispersants, and any oil spill cleanup agents in connection
with an oil discharge. The administrator shall consult with the
federal on-scene coordinator prior to exercising authority under this
subdivision.
(g) (1) The administrator shall conduct workshops, consistent with
the intent of this chapter, with the participation of appropriate
local, state, and federal agencies, including the State Air Resources
Board, air pollution control districts, and air quality management
districts, and affected private organizations, on the subject of oil
spill response technologies, including in situ burning. The
workshops shall review the latest research and findings regarding the
efficacy and toxicity of oil spill cleanup agents and other
technologies, their potential public health and safety and
environmental impacts, and any other relevant factors concerning
their use in oil spill response. In conducting these workshops, the
administrator shall solicit the views of all participating parties
concerning the use of these technologies, with particular attention
to any special considerations that apply to coastal areas and marine
waters of the state.
(2) Within 90 days following the conclusion of the workshops, or
by June 30, 1996, whichever occurs first, the administrator shall
publish decision guidelines on the policies, procedures, and
parameters for the use of in situ burning, which may be implemented
in the event of an oil spill. The administrator shall, by whichever
of those dates occurs first, additionally publish a schedule for
future workshops to be held to develop guidelines for the use of
other identified technologies.
(h) (1) The administrator shall ensure that, as part of the
response to any significant spill, biologists or other personnel are
present and provided any support and funding necessary and
appropriate for the assessment of damages to natural resources and
for the collection of data and other evidence that may help in
determining and recovering damages.
(2) (A) The administrator shall coordinate all actions required by
state or local agencies to assess injury to, and provide full
mitigation for injury to, or to restore, rehabilitate, or replace,
natural resources, including wildlife, fisheries, wildlife or
fisheries habitat, and beaches and other coastal areas, that are
damaged by an oil spill. For purposes of this subparagraph, "actions
required by state or local agencies" include, but are not limited
to, actions required by state trustees under Section 1006 of the Oil
Pollution Act of 1990 (33 U.S.C. Sec. 2706) and actions required
pursuant to Section 8670.61.5.
(B) The responsible party shall be liable for all coordination
costs incurred by the administrator.
(3) Nothing in this subdivision shall be construed to give the
administrator any authority to administer state or local laws or to
limit the authority of another state or local agency to implement and
enforce state or local laws under its jurisdiction, nor does this
subdivision limit the authority or duties of the administrator under
this chapter or limit the authority of an agency to enforce existing
permits or permit conditions.
(i) (1) The administrator shall enter into a memorandum of
understanding with the executive director of the State Water
Resources Control Board, acting for the State Water Resources Control
Board and the California regional water quality control boards, and
with the approval of the State Water Resources Control Board, to
address discharges, other than dispersants, that are incidental to,
or directly associated with, the response, containment, and cleanup
of an existing or threatened oil spill conducted pursuant to this
chapter.
(2) The memorandum of understanding entered into pursuant to
paragraph (1) shall address any permits, requirements, or
authorizations that are required for the specified discharges. The
memorandum of understanding shall be consistent with requirements
that protect state water quality and beneficial uses and with any
applicable provisions of the Porter-Cologne Water Quality Control Act
(Division 7 (commencing with Section 13000), Water Code) or the
federal Clean Water Act (33 U.S.C. Sec. 1251 et seq.), and shall
expedite efficient oil spill response.
(3) The memorandum of understanding shall be completed by May 15,
1994.
SEC. 48. Section 8670.13.2 of the Government Code is amended to
read:
8670.13.2. Prior to January 1, 1997, the administrator shall
prepare regulations regarding licensing of oil spill cleanup agents
that are substantially the same as regulations adopted by the State
Water Resources Control Board that were in effect on December 31,
1995, as set forth in Chapter 10 (commencing with Section 2300) of
Title 23 of the California Code of Regulations. The authority of the
administrator shall be substituted for the authority of the board
and cross references shall be corrected. The administrator shall
submit these regulations to the Office of Administrative Law for
filing with the Secretary of State and publication in the California
Code of Regulations. These regulations are exempt from the
Administrative Procedure Act. The regulations shall become effective
upon filing. The regulations shall remain in effect until a date of
two years from the date of filing with the Secretary of State or
until the date new regulations adopted by the administrator in
accordance with Section 8670.13.1 are filed with the Secretary of
State, whichever date occurs earlier.
SEC. 49. Section 8670.21 of the Government Code is amended to
read:
8670.21. (a) As used in this section, the following terms have
the following meaning:
(1) "Vessels" means vessels as defined in Section 21 of the
Harbors and Navigation Code.
(2) "VTS system" means a vessel traffic service system.
(b) The administrator shall negotiate an agreement with the Coast
Guard, appropriate port agencies, or appropriate organizations, for a
VTS system to protect the harbors of this state. The administrator
may include in the agreement provisions for vessel traffic monitoring
and communications systems for areas of the coast outside of harbors
or negotiate a separate agreement for that purpose. The purpose of
a VTS system and a vessel traffic monitoring and communications
system shall be to aid navigation by providing satellite tracking,
radar, or other information regarding ship locations and traffic to
prevent collisions and groundings.
(c) The administrator shall, in consultation with the Coast Guard,
develop a plan for implementing VTS systems pursuant to subdivision
(b) for the Ports of Los Angeles and Long Beach, the Harbors of San
Francisco, San Pablo, and Suisun Bays, the Santa Barbara Channel, and
any other area where establishing a VTS system or a vessel
monitoring and communications system is recommended by the Coast
Guard. The plan shall provide for the areas described in this
subdivision, and for any other system and areas that are recommended
by the Coast Guard, or recommended by the administrator and approved
by the Coast Guard. Only systems that will be operated by the Coast
Guard, or that will have direct communication with a Coast Guard
officer who has Captain of the Port enforcement authority, shall be
included in the plan. The plan shall be amended periodically to
reflect any changes in Coast Guard recommendations or operations, and
any changes in the agreements entered into pursuant to subdivision
(b). The plan shall, to the extent allowable given federal
requirements, provide for the best achievable protection.
(d) (1) The administrator shall attempt to provide funding for VTS
systems and vessel monitoring and communications systems through
voluntary funding, or services in kind, provided by the maritime
industry. If agreement on voluntary funding or services in kind
cannot be reached, the administrator may establish a fee system that
reflects the commercial maritime activity of each of the respective
harbors or areas for which a VTS system or a vessel monitoring and
communications system is established. Using that fee system, the
administrator shall fund VTS systems and vessel monitoring and
communications systems.
(2) The money collected pursuant to this subdivision shall be
deposited in the Vessel Safety Account, which is hereby created in
the Oil Spill Prevention and Administration Fund. The money in the
Vessel Safety Account is hereby continuously appropriated for the
sole purpose of funding VTS systems and vessel monitoring and
communications systems. Other than the fees imposed pursuant to this
subdivision that are deposited in the Vessel Safety Account, no
funds from the Oil Spill Prevention and Administration Fund may be
used to pay for VTS systems or vessel traffic monitoring and
communications systems.
(3) The administrator shall adopt regulations to implement this
subdivision. The administrator may adopt regulations prohibiting
barges and tankers from accepting or unloading oil at marine
terminals if a barge or tanker is not in compliance with required VTS
system or vessel traffic monitoring and communications system
equipment.
(e) If a VTS system covers waters outside the jurisdiction of a
local port authority, the administrator may grant such money as is
determined to be necessary for the purchase and installation of
equipment required for the establishment or expansion of the VTS
system. Those grants may be made from the Oil Spill Response Trust
Fund in accordance with Section 8670.49, as individual and
nonrecurring appropriations through the budget process, but shall not
exceed the amount of interest earned from money in that fund.
(f) (1) The Marine Exchange of Los Angeles-Long Beach Harbor,
Inc., a corporation organized under the Non-Profit Mutual Benefit
Corporation Law (Part 3 (commencing with Section 7110) of Division 2
of Title 1 of the Corporations Code), may operate a VTS system in the
VTS area described in Section 445 of the Harbors and Navigation Code
if the VTS system is approved by the Coast Guard and certified by
the administrator as meeting the requirements of this chapter. The
marine exchange shall cooperate fully with the administrator in the
development and implementation of that VTS system. Upon
certification by the administrator that the Coast Guard has commenced
operation of a VTS system for the VTS area, the authorization for
the marine exchange to operate a VTS system shall terminate.
(2) The Port of Los Angeles and the Port of Long Beach may impose
fees upon all covered vessels, as defined in Section 445.5 of the
Harbors and Navigation Code, for the funding of the VTS system
operated by the marine exchange.
(3) No vessel that is required to comply with Article 4
(commencing with Section 445) of Chapter 1 of Division 3 of the
Harbors and Navigation Code shall assert any claim against the marine
exchange or any officer, director, employee, or representative of
the marine exchange for any damage, loss, or expense, including any
rights of indemnity or other rights of any kind, sustained by that
vessel or its owners, agents, charterers, operators, crew, or third
parties arising out of, or connected with, directly or indirectly,
the marine exchange's operation of the vessel traffic service, even
though resulting in whole or in part from the negligent acts or
omissions of the marine exchange or of an officer, director,
employee, or representative of the marine exchange.
(4) Each vessel required to comply with Article 4 (commencing with
Section 445) of Chapter 1 of Division 3 of the Harbors and
Navigation Code shall defend, indemnify, and hold harmless the marine
exchange and its officers, directors, employees, and representatives
from any and all claims, suits, or actions of any nature by
whomsoever asserted, even though resulting or alleged to have
resulted from negligent acts or omissions of the marine exchange or
of an officer, director, employee, or representative of the marine
exchange.
(5) Nothing in this subdivision affects any liability or rights
that may arise by reason of the gross negligence or intentional or
willful misconduct of the marine exchange or of an officer, director,
employee, or representative of the marine exchange in the operation
of the VTS system, including any liability pursuant to subdivision
(c) of Section 449.5 of the Harbors and Navigation Code.
(6) The marine exchange and its officers and directors are subject
to Section 5047.5 of the Corporations Code to the extent that the
marine exchange meets the criteria specified in that section.
(7) Nothing in this section shall be deemed to include the marine
exchange or its officers, directors, employees, or representatives
within the definition of "responsible party" pursuant to subdivision
(q) of Section 8670.3 for purposes of this chapter.
(8) On or before January 1, 1997, and every two years thereafter,
the marine exchange shall submit a report containing a complete
description of the VTS system operated by the marine exchange to the
administrator. Upon receiving that biennial report, the
administrator shall determine, after a public hearing, whether the
elements and operation of the VTS system are consistent with the
Harbor Safety Plan for the Ports of Los Angeles and Long Beach
developed pursuant to Section 8670.23.1 and the standards for the
statewide vessel traffic service systems plan developed pursuant to
subdivision (c). If the administrator determines that the VTS system
is inconsistent with the Harbor Safety Plan for the Ports of Los
Angeles and Long Beach developed pursuant to Section 8670.23.1 or
with the statewide vessel traffic service systems plan developed
pursuant to subdivision (c), the administrator shall issue an order
to the marine exchange specifying modifications to the VTS system to
eliminate the inconsistencies. If the marine exchange has not
complied with such an order within six months of issuance, the
administrator may, in addition to, or in lieu of, any other
enforcement action authorized by this chapter or Article 4
(commencing with Section 445) of Chapter 1 of Division 3 of the
Harbors and Navigation Code, and after a public hearing,
administratively revoke the authorization for the marine exchange to
operate a VTS system. If authorization for the marine exchange to
operate a VTS system is revoked, the administrator shall take any
action necessary to expeditiously establish a VTS system for the VTS
area described in Section 445 of the Harbors and Navigation Code.
The action may include the assessment of fees on vessels, port users,
and ports, and needed expenditures, as provided in subdivision (d).
(g) Any VTS system or vessel traffic monitoring and communications
system that is determined to be necessary by the administrator, but
has not been approved by the Coast Guard, may not be included in the
plan until that inclusion has been given specific approval by the
Legislature, by statute.
(h) It is the intent of the Legislature that VTS systems and
vessel traffic monitoring and communications systems be completed and
operated by the Coast Guard, except that, with respect to the VTS
area described in Section 445 of the Harbors and Navigation Code, a
VTS system may be operated by the Marine Exchange of Los Angeles-Long
Beach, Inc., pursuant to subdivision (f).
SEC. 50. Section 11504 of the Government Code is amended to read:
11504. A hearing to determine whether a right, authority,
license, or privilege should be granted, issued, or renewed shall be
initiated by filing a statement of issues. The statement of issues
shall be a written statement specifying the statutes and rules with
which the respondent must show compliance by producing proof at the
hearing and, in addition, any particular matters that have come to
the attention of the initiating party and that would authorize a
denial of the agency action sought. The statement of issues shall be
verified unless made by a public officer acting in his or her
official capacity or by an employee of the agency before which the
proceeding is to be held. The verification may be on information and
belief. The statement of issues shall be served in the same manner
as an accusation, except that, if the hearing is held at the request
of the respondent, Sections 11505 and 11506 shall not apply and the
statement of issues together with the notice of hearing shall be
delivered or mailed to the parties as provided in Section 11509.
Unless a statement to respondent is served pursuant to Section 11505,
a copy of Sections 11507.5, 11507.6, and 11507.7, and the name and
address of the person to whom requests permitted by Section 11505 may
be made, shall be served with the statement of issues.
SEC. 51. Section 15363.7 of the Government Code is amended to
read:
15363.7. The secretary shall include, as part of the annual
report required pursuant to subdivision (c) of Section 15363.6, a
report on the foreign and domestic business development marketing
programs administered by the agency.
SEC. 52. Section 15379.28 of the Government Code is amended to
read:
15379.28. (a) The chancellor's office shall oversee auditing, and
provide systemwide oversight, for the economic development program.
In carrying out these functions, the board of governors and the
chancellor's office shall perform both of the following activities:
(1) Review and assess whether competitive awards were utilized for
economic development grants and contracts in accordance with board
policy.
(2) Review economic development program expenditures to determine
the extent to which regional economic development and training needs
are being met, including the needs of emerging industries.
(b) (1) As a condition of receiving economic development funds,
each community college or community college district shall agree to
complete an audit of the funds received.
(2) An audit performed pursuant to this section shall adhere to
generally accepted accounting principles, and shall include, but not
necessarily be limited to, activities to ensure compliance with all
state laws and regulations concerning each of the following:
(A) Procedures for subcontracts or grant amendments, including
appropriate authorization by the chancellor's office.
(B) Procurement procedures.
(C) Travel authorization.
(D) Hiring procedures.
(E) Appropriate use of fiscal agents.
(c) An audit performed pursuant to this section may be completed
either by the chancellor's office or by a certified public
accountant.
(d) (1) Notwithstanding any other provision of law, the Director
of Finance is authorized to increase the reimbursement authority of
Schedule (e) of Item 6870-001-0001 of Section 2.00 of the Budget Act
of 1996 (Ch. 162, Stats. 1996) by up to two hundred fifty thousand
dollars ($250,000) to allow the chancellor's office to contract with
community colleges or community college districts for the performance
of audits pursuant to this section.
(2) Audits may not be conducted nor staff hired by the chancellor'
s office pursuant to this section unless and until the Director of
Finance certifies that a sufficient number of community colleges or
community college districts have entered into service agreements with
the chancellor's office to fully offset the estimated cost of
conducting audits of the economic development program pursuant to
this section.
SEC. 53. Section 30054 of the Government Code is amended to read:
30054. (a) For the 1993-94, 1994-95, and 1995-96 fiscal years
only, the amounts allocated pursuant to Sections 30052 and 30053
shall be available only for public safety services, and shall be
allocated in each qualified county to local agencies as provided in
subdivision (b).
(b) (1) Each county shall create a Public Safety Augmentation Fund
that shall consist of all revenues received by the county as a
result of the allocations pursuant to Sections 30052 and 30053.
(2) Except as provided in paragraph (3) or (4), for each of the
1993-94, 1994-95, and 1995-96 fiscal years only, the augmentation
fund described in paragraph (1) shall be allocated among the cities
in the county that provide public safety services as follows:
(A) The auditor shall determine an allocation factor for each city
within the county, the numerator of which shall be the amount of
revenue shifted from that city to the Educational Revenue
Augmentation Fund pursuant to Section 97.3 of the Revenue and
Taxation Code for the 1993-94 fiscal year, less the amount of vehicle
license fee revenues allocated to the city pursuant to Section
11005.4 of the Revenue and Taxation Code for the 1993-94 fiscal year,
and the denominator of which shall be the amount of revenue shifted
from all cities in the county and from the county to the Educational
Revenue Augmentation Fund pursuant to Section 97.3 of the Revenue and
Taxation Code for the 1993-94 fiscal year, less the amount of
vehicle license fee revenues allocated to the county and all cities
in the county pursuant to Section 11005.4 of the Revenue and Taxation
Code for the 1993-94 fiscal year.
(B) The auditor shall multiply the amount in the augmentation fund
by the allocation factor determined in subparagraph (A) for each
city.
(C) The allocation factor to be used for each city for the 1993-94
fiscal year may not result in an allocation that exceeds 50 percent
of the difference between the following amounts:
(i) The amount by which the city's allocation of property tax
revenues was reduced pursuant to Section 97.3 of the Revenue and
Taxation Code for the 1993-94 fiscal year.
(ii) The amount of vehicle license fee revenues allocated to the
city pursuant to Section 11005.4 of the Revenue and Taxation Code for
the 1993-94 fiscal year.
(D) The allocation factor determined pursuant to this paragraph
for the 1993-94 fiscal year shall also be applied in each fiscal year
thereafter.
(3) Notwithstanding paragraph (2), for each of the 1993-94,
1994-95, and 1995-96 fiscal years only, the amount in the
augmentation fund established pursuant to paragraph (1) of each
county described in subparagraph (C) shall be allocated to the cities
in the county that provide public safety services as follows:
(A) The auditor shall determine an allocation factor for each city
within the county, the numerator of which shall be the amount of the
revenue shifted from that city to the Educational Revenue
Augmentation Fund pursuant to Section 97.3 of the Revenue and
Taxation Code for the 1993-94 fiscal year, and the denominator of
which shall be the amount of revenue shifted from all cities in the
county to the Educational Revenue Augmentation Fund pursuant to
Section 97.3 of the Revenue and Taxation Code for the 1993-94 fiscal
year.
(B) The auditor shall multiply 5 percent of the amount in the
augmentation fund established pursuant to paragraph (1) by the
allocation factor determined for each city in subparagraph (A). The
amount so computed for each city shall be allocated to that city.
(C) This paragraph applies only to the Counties of Fresno, Kings,
Merced, San Bernardino, San Diego, San Joaquin, Solano, and Yolo.
(D) This paragraph shall apply to a particular county described in
subparagraph (C) only if the total amount allocated under this
paragraph to all of the cities therein that provide
public safety services is less than the
amount that would otherwise be allocated to all of those cities
pursuant to paragraph (2).
(4) Notwithstanding paragraph (2), for each of the 1993-94,
1994-95, and 1995-96 fiscal years only, the amount in the
augmentation fund established pursuant to paragraph (1) for the
County of Alameda shall be allocated to the cities in the County of
Alameda that provide public safety services as follows:
(A) The auditor shall determine an allocation factor for each city
within the county, the numerator of which shall be the amount of the
revenue shifted from that city to the Educational Revenue
Augmentation Fund pursuant to Section 97.3 of the Revenue and
Taxation Code for the 1993-94 fiscal year, and the denominator of
which shall be the amount of revenue shifted from all cities in the
County of Alameda to the Educational Revenue Augmentation Fund
pursuant to Section 97.3 of the Revenue and Taxation Code for the
1993-94 fiscal year.
(B) The auditor shall multiply 6.1 percent of the amount in the
augmentation fund established pursuant to paragraph (1) by the
allocation factor determined for each city in subparagraph (A). The
amount so computed for each city shall be allocated to that city.
(5) All moneys in the Public Safety Augmentation Fund not
allocated to any city within the county pursuant to paragraph (2),
(3), or (4) shall be allocated to the county.
SEC. 54. Section 30061 of the Government Code is amended to read:
30061. (a) There shall be established in each county treasury a
Supplemental Law Enforcement Services Fund (SLESF), to receive all
amounts allocated to a county for purposes of implementing this
chapter.
(b) In any fiscal year for which a county receives money to be
expended for the implementation of this chapter, the county auditor
shall allocate moneys in the county's Supplemental Law Enforcement
Services Fund (SLESF), including any interest or other return earned
on the investment of those moneys, within 30 days of the deposit of
those moneys into the fund, and shall allocate those moneys in
accordance with the following requirements:
(1) Twelve and one-half percent to the county sheriff for county
jail construction and operation. In the case of Madera, Napa, and
Santa Clara Counties, this allocation shall be made to the county
director or chief of corrections.
(2) Twelve and one-half percent to the district attorney for
criminal prosecution.
(3) Seventy-five percent to the county and the cities within the
county, and, in the case of the San Mateo, Kern, Siskiyou, and Contra
Costa Counties, also to the Broadmoor Police Protection District,
the Bear Valley Community Services District, the Stallion Springs
Community Services District, the Lake Shastina Community Services
District, and the Kensington Police Protection and Community Services
District, in accordance with the relative population of the cities
within the county and the unincorporated area of the county, and the
Broadmoor Police Protection District in the County of San Mateo, the
Bear Valley Community Services District and the Stallion Springs
Community Services District in Kern County, the Lake Shastina
Community Services District in Siskiyou County, and the Kensington
Police Protection and Community Services District in Contra Costa
County, as specified in the most recent January estimate by the
population research unit of the Department of Finance. No person
residing within the Broadmoor Police Protection District, the Bear
Valley Community Services District, the Stallion Springs Community
Services District, the Lake Shastina Community Services District, or
the Kensington Police Protection and Community Services District
shall also be counted as residing within the unincorporated area of
the County of San Mateo, Kern, Siskiyou, or Contra Costa, or within
any city located within those counties. Moneys allocated to the
county pursuant to this subdivision shall be retained in the county
SLESF, and moneys allocated to a city pursuant to this subdivision
shall be deposited in a SLESF established in the city treasury.
(c) Subject to subdivision (d), for each fiscal year in which the
county and each city, and the Broadmoor Police Protection District,
the Bear Valley Community Services District, the Stallion Springs
Community Services District, the Lake Shastina Community Services
District, and the Kensington Police Protection and Community Services
District, receive moneys pursuant to paragraph (3) of subdivision
(b), the county, each city, and each district specified in this
subdivision shall appropriate those moneys in accordance with the
following procedures:
(1) In the case of the county, the county board of supervisors
shall appropriate existing and anticipated moneys exclusively to
provide front line law enforcement services, other than those
services specified in paragraphs (1) and (2) of subdivision (b), in
the unincorporated areas of the county, in response to written
requests submitted to the board by the county sheriff and the
district attorney. Any request submitted pursuant to this paragraph
shall specify the front line law enforcement needs of the requesting
entity, and those personnel, equipment, and programs that are
necessary to meet those needs. The board shall, at a public hearing
held in September in each year that the Legislature appropriates
funds for purposes of this chapter, consider and determine each
submitted request within 60 days of receipt, pursuant to the decision
of a majority of a quorum present. The board shall consider these
written requests separate and apart from the process applicable to
proposed allocations of the county general fund.
(2) In the case of a city, the city council shall appropriate
existing and anticipated moneys exclusively to fund front line
municipal police services, in accordance with written requests
submitted by the chief of police of that city or the chief
administrator of the law enforcement agency that provides police
services for that city. These written requests shall be acted upon
by the city council in the same manner as specified in paragraph (1)
for county appropriations.
(3) In the case of the Broadmoor Police Protection District within
the County of San Mateo, the Bear Valley Community Services District
or the Stallion Springs Community Services District within Kern
County, the Lake Shastina Community Services District within Siskiyou
County, or the Kensington Police Protection and Community Services
District within Contra Costa County, the legislative body of that
special district shall appropriate existing and anticipated moneys
exclusively to fund front line municipal police services, in
accordance with written requests submitted by the chief administrator
of the law enforcement agency that provides police services for that
special district. These written requests shall be acted upon by the
legislative body in the same manner specified in paragraph (1) for
county appropriations.
(d) For each fiscal year in which the county, a city, or the
Broadmoor Police Protection District within the County of San Mateo,
the Bear Valley Community Services District or the Stallion Springs
Community Services District within Kern County, the Lake Shastina
Community Services District within Siskiyou County, or the Kensington
Police Protection and Community Services District within Contra
Costa County receives any moneys pursuant to this chapter, in no
event shall the governing body of any of those recipient agencies
subsequently alter any previous, valid appropriation by that body,
for that same fiscal year, of moneys allocated to the county or city
pursuant to paragraph (3) of subdivision (b).
SEC. 55. Section 30064 of the Government Code is amended to read:
30064. (a) There is in each county a Supplemental Law Enforcement
Oversight Committee (SLEOC), consisting of five members as follows:
(1) One municipal police chief.
(2) The county sheriff.
(3) The district attorney.
(4) The county's executive officer.
(5) One city manager.
(b) (1) The cities in each county shall organize as a city
selection committee for the purposes of appointing a city manager and
a municipal police chief to the SLEOC. Each appointment shall be
made by not less than a majority of all the cities in the county
having not less than a majority of the population of all the cities
in the county. For purposes of this paragraph, population figures
shall be determined on the basis of the most recent census data
developed by the Department of Finance.
(2) The SLEOC shall determine whether recipient entities have
expended moneys received from the Supplemental Law Enforcement
Services Fund (SLESF) in compliance with this chapter. For this
purpose, the SLEOC shall at least annually review the expenditure of
SLESF funds by city police departments, the county sheriff, and the
district attorney, and shall make its annual review report available
to the public.
SEC. 56. Section 50030 of the Government Code is amended to read:
50030. Any permit fee imposed by a city, including a chartered
city, a county, or a city and county, for the placement,
installation, repair, or upgrading of telecommunications facilities
such as lines, poles, or antennas by a telephone corporation that has
obtained all required authorizations to provide telecommunications
services from the Public Utilities Commission and the Federal
Communications Commission, shall not exceed the reasonable costs of
providing the service for which the fee is charged and shall not be
levied for general revenue purposes.
SEC. 57. Section 65850.2 of the Government Code is amended to
read:
65850.2. (a) Each city and each county shall include, in its
information list compiled pursuant to Section 65940 for development
projects, or application form for projects that do not require a
development permit other than a building permit, both of the
following:
(1) The requirement that the owner or authorized agent shall
indicate whether the owner or authorized agent will need to comply
with the applicable requirements of Section 25505 and Article 2
(commencing with Section 25531) of Chapter 6.95 of Division 20 of the
Health and Safety Code or the requirements for a permit for
construction or modification from the air pollution control district
or air quality management district exercising jurisdiction in the
area governed by the city or county.
(2) The requirement that the owner or authorized agent certify
whether or not the proposed project will have more than a threshold
quantity of a regulated substance in a process or will contain a
source or modified source of hazardous air emissions.
(b) A city or county shall not find the application complete
pursuant to Section 65943 or approve a development project or a
building permit for a project that does not require a development
permit other than a building permit, in which a regulated substance
will be present in a process in quantities greater than the
applicable threshold quantity, unless the owner or authorized agent
for the project first obtains, from the administering agency with
jurisdiction over the facility, a notice of requirement to comply
with, or determination of exemption from, the requirement to prepare
and submit an RMP. Within five days of submitting the project
application to the city or county, the applicant shall submit the
information required pursuant to paragraph (2) of subdivision (a) to
the administering agency. This notice of requirement to comply with,
or determination of exemption from, the requirement for an RMP shall
be provided by the administering agency to the applicant, and the
applicant shall provide the notice to the city or county within 25
days of the administering agency receiving adequate information from
the applicant to make a determination as to the requirement for an
RMP. The requirement to submit an RMP to the administering agency
shall be met prior to the issuance of a certificate of occupancy or
its substantial equivalent. The owner or authorized agent shall
submit, to the city or county, certification from the air pollution
control officer that the owner or authorized agent has provided the
disclosures required pursuant to Section 42303 of the Health and
Safety Code.
(c) A city or county shall not issue a final certificate of
occupancy or its substantial equivalent unless there is verification
from the administering agency, if required by law, that the owner or
authorized agent has met, or is meeting, the applicable requirements
of Section 25505 and Article 2 (commencing with Section 25531) of
Chapter 6.95 of Division 20 of the Health and Safety Code, and the
requirements for a permit, if required by law, from the air pollution
control district or air quality management district exercising
jurisdiction in the area governed by the city or county or has
provided proof from the appropriate district that the permit
requirements do not apply to the owner or authorized agent.
(d) The city or county, after considering the recommendations of
the administering agency or air pollution control district or air
quality management district, shall decide whether, and under what
conditions, to allow construction of the site.
(e) Nothing in this section limits any existing authority of a
district to require compliance with its rules and regulations.
(f) Counties and cities may adopt a schedule of fees for
applications for compliance with this section sufficient to recover
their reasonable costs of carrying out this section. Those fees
shall be used only for the implementation of this section.
(g) As used in this section, the following terms have the
following meaning:
(1) "Administering agency," "process," "regulated substance,"
"RMP," and "threshold quantity" have the same meaning as set forth
for those terms in Section 25532 of the Health and Safety Code.
(2) "Hazardous air emissions" means emissions into the ambient air
of air contaminants that have been identified as a toxic air
contaminant by the State Air Resources Board or by the air pollution
control officer for the jurisdiction in which the project is located.
As determined by the air pollution control officer, "hazardous air
emissions" also means emissions into the ambient air of any substance
identified in subdivisions (a) to (f), inclusive, of Section 44321
of the Health and Safety Code.
(h) Any misrepresentation of information required by this section
shall be grounds for denial, suspension, or revocation of project
approval or permit issuance. The owner or authorized agent required
to comply with this section shall notify all future occupants of
their potential duty to comply with the requirements of Section 25505
and Article 2 (commencing with Section 25531) of Chapter 6.95 of
Division 20 of the Health and Safety Code.
(i) This section does not apply to applications solely for
residential construction.
SEC. 58. Section 1226 of the Health and Safety Code is amended to
read:
1226. (a) The regulations shall prescribe the kinds of services
that may be provided by clinics in each category of licensure and
shall prescribe minimum standards of adequacy, safety, and sanitation
of the physical plant and equipment, minimum standards for staffing
with duly qualified personnel, and minimum standards for providing
the services offered. These minimum standards shall be based on the
type of facility, the needs of the patients served, and the types and
levels of services provided.
(b) The Office of Statewide Health Planning and Development, in
consultation with the Community Clinics Advisory Committee, shall
prescribe minimum construction standards of adequacy and safety for
the physical plant of clinics as found in the California Building
Standards Code.
(c) A city or county, as applicable, shall have plan review and
building inspection responsibilities for the construction or
alteration of buildings described in paragraph (1) and paragraph (2)
of subdivision (b) of Section 1204 and shall apply the provisions of
the latest edition of the California Building Standards Code in
conducting these plan review responsibilities.
Upon the initial submittal to a city or county by the governing
authority or owner of these clinics for plan review and building
inspection services, the city or county shall reply in writing to the
clinic whether or not the plan review by the city or county will
include a certification that the clinic project submitted for plan
review meets the clinic standards set forth in the California
Building Standards Code.
If the city or county indicates that its review will include this
certification, it shall do all of the following:
(1) Apply the applicable clinic provisions of the latest edition
of the California Building Standards Code.
(2) Certify in writing to the applicant, within 30 days of
completion of construction, whether or not these standards have been
met.
(d) If, upon initial submittal, the city or county indicates that
its plan review will not include this certification, the governing
authority or owner of the clinic shall submit the plans to the Office
of Statewide Health Planning and Development, which shall review the
plans for certification whether or not the clinic project meets the
standards, as propounded by the office, in the California Building
Standards Code.
(e) When the office performs review for certification, the office
shall charge a fee in an amount that does not exceed its actual
costs.
(f) The office of the State Fire Marshal shall prescribe minimum
safety standards for fire and life safety in surgical clinics.
(g) Notwithstanding subdivision (c), the governing authority or
owner of a clinic may request the office to perform plan review
services for buildings described in subdivision (c). If the office
agrees to perform these services, after consultation with the local
building official, the office shall charge an amount not to exceed
its actual costs. The construction or alteration of these buildings
shall conform to the applicable provisions of the latest edition of
the California Building Standards Code for purposes of the plan
review by the office pursuant to this subdivision.
(h) Regulations adopted pursuant to this chapter establishing
standards for laboratory services shall not apply to any clinic that
operates a clinical laboratory licensed pursuant to Section 1265 of
the Business and Professions Code.
SEC. 59. Section 1250.2 of the Health and Safety Code is amended
to read:
1250.2. (a) As defined in Section 1250, "health facility"
includes a "psychiatric health facility," defined to mean a health
facility, licensed by the State Department of Mental Health, that
provides 24-hour inpatient care for mentally disordered, incompetent,
or other persons described in Division 5 (commencing with Section
5000) or Division 6 (commencing with Section 6000) of the Welfare and
Institutions Code. This care shall include, but not be limited to,
the following basic services: psychiatry, clinical psychology,
psychiatric nursing, social work, rehabilitation, drug
administration, and appropriate food services for those persons whose
physical health needs can be met in an affiliated hospital or in
outpatient settings.
It is the intent of the Legislature that the psychiatric health
facility shall provide a distinct type of service to psychiatric
patients in a 24-hour acute inpatient setting. The State Department
of Mental Health shall require regular utilization reviews of
admission and discharge criteria and lengths of stay in order to
assure that these patients are moved to less restrictive levels of
care as soon as appropriate.
(b) The State Department of Mental Health may issue a special
permit to a psychiatric health facility for it to provide structured
outpatient services (commonly referred to as SOPS) consisting of
morning, afternoon, or full daytime organized programs, not exceeding
10 hours, for acute daytime care for patients admitted to the
facility. This subdivision shall not be construed as requiring a
psychiatric health facility to apply for a special permit to provide
these alternative levels of care.
The Legislature recognizes that, with access to structured
outpatient services, as an alternative to 24-hour inpatient care,
certain patients would be provided with effective intervention and
less restrictive levels of care. The Legislature further recognizes
that, for certain patients, the less restrictive levels of care
eliminate the need for inpatient care, enable earlier discharge from
inpatient care by providing a continuum of care with effective
aftercare services, or reduce or prevent the need for a subsequent
readmission to inpatient care.
(c) Any reference in any statute to Section 1250 of the Health and
Safety Code shall be deemed and construed to also be a reference to
this section.
(d) Notwithstanding any other provision of law, and to the extent
consistent with federal law, a psychiatric health facility shall be
eligible to participate in the medicare program under Title XVIII of
the federal Social Security Act (42 U.S.C. Sec. 1395 et seq.), and
the medicaid program under Title XIX of the federal Social Security
Act (42 U.S.C. Sec. 1396 et seq.), if all of the following conditions
are met:
(1) The facility is a licensed facility.
(2) The facility is in compliance with all related statutes and
regulations enforced by the State Department of Mental Health,
including regulations contained in Chapter 9 (commencing with Section
77001) of Division 5 of Title 22 of the California Code of
Regulations.
(3) The facility meets the definitions and requirements contained
in subdivisions (e) and (f) of Section 1861 of the federal Social
Security Act (42 U.S.C. Sec. 1395x (e) and (f)), including the
approval process specified in Section 1861(e)(7)(B) of the Social
Security Act (42 U.S.C. Sec. 1395x(e)(7)(B)), which requires that the
state agency responsible for licensing hospitals has assured that
the facility meets licensing requirements.
(4) The facility meets the conditions of participation for
hospitals pursuant to Part 482 of Title 42 of the Code of Federal
Regulations.
SEC. 60. Section 1367 of the Health and Safety Code is amended to
read:
1367. Each health care service plan and, where applicable, each
specialized health care service plan, shall meet the following
requirements:
(a) All facilities located in this state, including, but not
limited to, clinics, hospitals, and skilled nursing facilities to be
utilized by the plan, shall be licensed by the State Department of
Health Services, where licensure is required by law. Facilities not
located in this state shall conform to all licensing and other
requirements of the jurisdiction in which they are located.
(b) All personnel employed by or under contract to the plan shall
be licensed or certified by their respective board or agency, where
licensure or certification is required by law.
(c) All equipment required to be licensed or registered by law
shall be so licensed or registered and the personnel operating that
equipment shall be licensed or certified as required by law.
(d) The plan shall furnish services in a manner providing
continuity of care and ready referral of patients to other providers
at times as may be appropriate, consistent with good professional
practice.
(e) (1) All services shall be readily available at reasonable
times to all enrollees. To the extent feasible, the plan shall make
all services readily accessible to all enrollees.
(2) To the extent that telemedicine services are appropriately
provided through telemedicine, as defined in subdivision (a) of
Section 2290.5 of the Business and Professions Code, these services
shall be considered in determining compliance with Section 1300.67.2
of Title 10 of the California Code of Regulations.
(f) The plan shall employ and utilize allied health manpower for
the furnishing of services to the extent permitted by law and
consistent with good medical practice.
(g) The plan shall have the organizational and administrative
capacity to provide services to subscribers and enrollees. The plan
shall be able to demonstrate to the department that medical decisions
are rendered by qualified medical providers, unhindered by fiscal
and administrative management.
(h) All contracts with subscribers and enrollees, including group
contracts, and all contracts with providers, and other persons
furnishing services, equipment, or facilities to or in connection
with the plan, shall be fair, reasonable, and consistent with the
objectives of this chapter. All contracts with providers shall
contain provisions requiring a dispute resolution mechanism under
which providers may submit disputes to the plan, and requiring the
plan to inform its providers upon contracting with the plan, or upon
change to these provisions, of the procedures for processing and
resolving disputes, including the location and telephone number where
information regarding disputes may be submitted.
(i) Each health care service plan contract shall provide to
subscribers and enrollees all of the basic health care services
included in subdivision (b) of Section 1345, except that the
commissioner may, for good cause, by rule or order exempt a plan
contract or any class of plan contracts from that requirement. The
commissioner shall by rule define the scope of each basic health care
service required to be provided by a health care service plan as a
minimum for licensure under this chapter. Nothing in this chapter
prohibits a health care service plan from charging subscribers or
enrollees a copayment or a deductible for a basic health care service
or from setting forth, by contract, limitations on maximum coverage
of basic health care services, provided that the copayments,
deductibles, or limitations are reported to, and held unobjectionable
by, the commissioner and set forth to the subscriber or enrollee
pursuant to the disclosure provisions of Section 1363.
Nothing in this section shall be construed to permit the
commissioner to establish the rates charged subscribers and enrollees
for contractual health care services.
The enforcement by the commissioner of Article 3.1 (commencing
with Section 1357) shall not be deemed to establish the rates charged
subscribers and enrollees for contractual health care services.
SEC. 61. Section 1585 of the Health and Safety Code is amended to
read:
1585. (a) The governing board of an adult day health center
having final authority and responsibility for conduct of the center
shall be comprised of four
or more persons, at least one-half of whom shall be recipients
of the services of the adult day health center, relatives of the
recipients, or representatives of community organizations with
particular interest in programs for the elderly.
(b) The director shall, in individual cases, grant exceptions from
the requirements of this section for applicants if both of the
following conditions are met:
(1) The applicant delegates primary responsibility for supervision
of its adult day health program to a special board meeting the
compositional requirements of this section.
(2) The special board reviews and recommends to the governing
board of the applicant the budget, personnel, and subcontractors of
the adult day health care program.
(c) No member of the governing board or a special board described
in subdivision (b), nor any member of the immediate family of that
board member, may have any direct or indirect interest in any
contract for supplying services to the adult day health center.
SEC. 62. Section 11527.3 of the Health and Safety Code is amended
and renumbered to read:
115271.3. If the state receives federal approval to implement and
enforce emission standards for radionuclides pursuant to Section
115271.2, the department shall be responsible for the control of
emissions of radionuclides into the air. However, nothing in this
article shall be construed in any way to give the department any
authority to regulate, or be construed to apply to, air emissions
from nuclear powerplants that are licensed and regulated by the
United States Nuclear Regulatory Commission.
SEC. 63. Section 11758.46 of the Health and Safety Code is amended
to read:
11758.46. (a) For purposes of this section, "drug-Medi-Cal
services" means all of the following services, administered by the
department, and to the extent consistent with state and federal law:
(1) Narcotic treatment program services, as set forth in Section
11758.42.
(2) Day care habilitative services.
(3) Perinatal residential services for pregnant women and women in
the postpartum period.
(4) Naltrexone services.
(5) Outpatient drug-free services.
(b) (1) By July 1, 1997, and annually thereafter, the department
shall publish procedures for contracting for drug-Medi-Cal services
with certified providers and for claiming payments, including
procedures and specifications for electronic data submission for
services rendered.
(2) By July 1, 1997, the department, county alcohol and drug
program administrators, and alcohol and drug service providers shall
automate the claiming process and the process for the submission of
specific data required in connection with reimbursement for
drug-Medi-Cal services, except that this requirement applies only if
funding is available from sources other than those made available for
treatment or other services.
(c) A county or a contractor for the provision of drug-Medi-Cal
services shall notify the department, within 30 days of the receipt
of the county allocation, of its intent to contract, as a component
of the single state-county contract, for and provide certified
services pursuant to Section 11758.42 for the proposed budget year.
The notification shall include an accurate and complete budget
proposal, the structure of which shall be mutually agreed to by
county alcohol and drug program administrators and the department, in
the format provided by the department, for specific services, for a
specific time period, estimated units of service, estimated rate per
unit consistent with law and regulations, and total estimated cost
for appropriate services.
(d) (1) Within 30 days of receipt of the proposal described in
subdivision (c), the department shall provide, to counties and
contractors proposing to provide drug-Medi-Cal services in the
proposed budget year, a proposed multiple-year contract, as a
component of the single state-county contract, for these services, a
current utilization control plan, and appropriate administrative
procedures.
(2) A county contracting for alcohol and drug services shall
receive a single state-county contract for the net negotiated amount
and drug-Medi-Cal services.
(3) Contractors contracting for drug-Medi-Cal services shall
receive a drug-Medi-Cal contract.
(e) (1) Upon receipt of a contract proposal pursuant to
subdivision (c), a county and a contractor seeking to provide
reimbursable drug-Medi-Cal services and the department may begin
negotiations and the process for contract approval.
(2) If a county does not approve a contract by July 1 of the
appropriate fiscal year, in accordance with subdivisions (b) to (d),
inclusive, the county shall have 30 additional days in which to
approve a contract. If the county has not approved the contract by
the end of that 30-day period, the department shall contract directly
for services within 30 days.
(3) Counties shall negotiate contracts only with providers
certified to provide reimbursable drug-Medi-Cal services and that
elect to participate in this program. Upon contract approval by the
department, a county shall establish approved contracts with
certified providers within 30 days following enactment of the annual
Budget Act. A county may establish contract provisions to ensure
interim funding pending the execution of final contracts,
multiple-year contracts pending final annual approval by the
department, and, to the extent allowable under the annual Budget Act,
other procedures to ensure timely payment for services.
(f) (1) For counties and contractors providing drug-Medi-Cal
services, pursuant to approved contracts, and that have accurate and
complete claims, reimbursement for services from state General Fund
moneys shall commence no later than 45 days following the enactment
of the annual Budget Act for the appropriate state fiscal year.
(2) For counties and contractors providing drug-Medi-Cal services,
pursuant to approved contracts, and that have accurate and complete
claims, reimbursement for services from federal medicaid funds shall
commence no later than 45 days following the enactment of the annual
Budget Act for the appropriate state fiscal year.
(3) By July 1, 1997, the State Department of Health Services and
the department shall develop methods to ensure timely payment of
drug-Medi-Cal claims.
(4) The State Department of Health Services, in cooperation with
the department, shall take steps necessary to streamline the billing
system for reimbursable drug-Medi-Cal services, to assist the
department in meeting the billing provisions set forth in this
subdivision.
(g) The department shall submit a proposed interagency agreement
to the State Department of Health Services by May 1 for the following
fiscal year. Review and interim approval of all contractual and
programmatic requirements, except final fiscal estimates, shall be
completed by the State Department of Health Services by July 1. The
interagency agreement shall not take effect until the annual Budget
Act is enacted and fiscal estimates are approved by the State
Department of Health Services. Final approval shall be completed
within 45 days of enactment of the Budget Act.
(h) (1) A county or a provider certified to provide reimbursable
drug-Medi-Cal services, that is contracting with the department,
shall estimate the cost of those services by April 1 of the fiscal
year covered by the contract, and shall amend current contracts, as
necessary, by the following July 1.
(2) A county or a provider, except for a provider to whom
subdivision (i) applies, shall submit accurate and complete cost
reports for the previous state fiscal year by November 1, following
the end of the state fiscal year. The department may settle cost for
drug-Medi-Cal services, based on the cost report as the final
amendment to the approved single state-county contract.
(i) Certified narcotic treatment program providers, that are
exclusively billing the state or the county for services under
Section 11758.42, shall submit accurate and complete performance
reports for the previous state fiscal year by November 1 following
the end of that state fiscal year. A provider to which this
subdivision applies shall estimate its budgets using the uniform
state monthly reimbursement rate. The format and content of the
performance reports shall be mutually agreed to by the department,
the County Alcohol and Drug Program Administrators Association of
California, and representatives of the narcotic treatment providers.
SEC. 64. Section 13113 of the Health and Safety Code is amended to
read:
13113. (a) Except as otherwise provided in this section, no
person, firm, or corporation shall establish, maintain, or operate
any hospital, children's home, children's nursery, or institution,
home or institution for the care of aged or senile persons,
sanitarium or institution for insane or mentally retarded persons, or
nursing or convalescent home, wherein more than six guests or
patients are housed or cared for on a 24-hour-per-day basis unless
there is installed and maintained in an operable condition in every
building, or portion thereof where patients or guests are housed, an
automatic sprinkler system approved by the State Fire Marshal.
(b) This section does not apply to homes or institutions for the
24-hour-per-day care of ambulatory children if all of the following
conditions are satisfied:
(1) The buildings, or portions thereof in which children are
housed, are not more than two stories in height and are constructed
and maintained in accordance with regulations adopted by the State
Fire Marshal pursuant to Section 13143 and building standards
published in the California Building Standards Code.
(2) The buildings, or portions thereof housing more than six
children, shall have installed and maintained in an operable
condition therein a fire alarm system of a type approved by the State
Fire Marshal. The system shall be activated by detectors responding
to invisible products of combustion other than heat.
(3) The buildings or portions thereof do not house mentally ill or
mentally retarded children.
(c) This section does not apply to any one-story building or
structure of an institution or home for the care of the aged
providing 24-hour-per-day care if the building or structure is used
or intended to be used for the housing of no more than six ambulatory
aged persons. However, the buildings or institutions shall have
installed and maintained in an operable condition therein a fire
alarm system of a type approved by the State Fire Marshal. The
system shall be activated by detectors responding to products of
combustion other than heat.
(d) This section does not apply to occupancies, or any alterations
thereto, located in type I construction, as defined by the State
Fire Marshal, under construction or in existence on March 4, 1972.
(e) "Under construction," as used in this section, means that
actual work shall have been performed on the construction site and
shall not be construed to mean that the hospital, home, nursery,
institution, sanitarium, or any portion thereof, is in the planning
stage.
SEC. 65. Section 19183 of the Health and Safety Code is amended to
read:
19183. Manufacturers of earthquake sensitive gas shutoff devices
or other devices required by an ordinance adopted pursuant to Section
19182 shall first obtain certification, pursuant to Article 7
(commencing with Section 19200), that the device meets the standards
established pursuant to Section 19182.
SEC. 66. Section 19825 of the Health and Safety Code is amended to
read:
19825. (a) Every city or county that requires the issuance of a
permit as a condition precedent to the construction, alteration,
improvement, demolition, or repair of any building or structure
shall, in addition to any other requirements, require the following
declarations in substantially the following form upon the issuance of
any building permit:
BUILDING PROJECT IDENTIFICATION
Applicant's Mailing Address ________________________
________________________
Address of Building ________________________
________________________
Owner's Name if known ________________________
Telephone No. ________________________
Contractor's Name ________________________
Contractor's Mailing Address ________________________
________________________
Lic. No. _______________
Architect or Engineer ________________________
Architect's or Engineer's Address ________________________
________________________
Lic. No. _______________
In addition the city or county may require that there be
included, in the building project identification portion of
a building permit, the following:
Assessor's Parcel Number* ________________________
Permit date ________________________
Permit number ________________________
Description of work ________________________
Building permit valuation ________________________
*To be entered by issuing agency.
LICENSED CONTRACTOR'S
DECLARATION
I hereby affirm under penalty of perjury that I am licensed
under provisions of Chapter 9 (commencing with Section 7000)
of Division 3 of the Business and Professions Code, and my
license is in full force and effect.
License Class ___________________ Lic. No. __________________
Date ____________________________ Contractor ________________
OWNER-BUILDER DECLARATION
I hereby affirm under penalty of perjury that I am exempt
from the Contractors License Law for the following reason
(Sec. 7031.5, Business and Professions Code: Any city or
county that requires a permit to construct, alter, improve,
demolish, or repair any structure, prior to its issuance,
also requires the applicant for the permit to file a
signed statement that he or she is licensed pursuant to
the provisions of the Contractors License Law (Chapter 9
(commencing with Section 7000) of Division 3 of the
Business and Professions Code) or that he or she is exempt
therefrom and the basis for the alleged exemption. Any
violation of Section 7031.5 by any applicant for a permit
subjects the applicant to a civil penalty of not more than
five hundred dollars ($500).):
(_) I, as owner of the property, or my employees with wages
as their sole compensation, will do the work, and the structure
is not intended or offered for sale (Sec. 7044, Business and
Professions Code: The Contractors License Law does not apply
to an owner of property who builds or improves thereon, and
who does the work himself or herself or through his or her
own employees, provided that the improvements are not
intended or offered for sale. If, however, the building or
improvement is sold within one year of completion, the
owner-builder will have the burden of proving that he or she
did not build or improve for the purpose of sale.).
(_) I, as owner of the property, am exclusively contracting
with licensed contractors to construct the project (Sec. 7044,
Business and Professions Code: The Contractors License Law
does not apply to an owner of property who builds or improves
thereon, and who contracts for the projects with a
contractor(s) licensed pursuant to the Contractors License
Law.).
(_) I am exempt under Sec. ____, B.& P.C. for this reason
________________________________________________________
Date ___________________ Owner _____________________________
WORKERS' COMPENSATION DECLARATION
I hereby affirm under penalty of perjury one of the following
declarations:
___ I have and will maintain a certificate of consent to self-insure
for workers' compensation, as provided for by Section 3700
of the Labor Code, for the performance of the work for which
this
permit is issued.
___ I have and will maintain workers' compensation insurance,
as required by Section 3700 of the Labor Code, for the
performance of the work for which this permit is issued. My
workers' compensation insurance carrier and policy number are:
Carrier __________________________________
Policy Number __________________________________
(This section need not be completed if the permit is for one
hundred dollars ($100) or less).
___ I certify that, in the performance of the work for which this
permit
is issued, I shall not employ any person in any manner so as to
become subject to the workers' compensation laws of California,
and
agree that, if I should become subject to the workers'
compensation
provisions of Section 3700 of the Labor Code, I shall forthwith
comply with those provisions.
Date: __________ Applicant: __________________________
WARNING: FAILURE TO SECURE WORKERS' COMPENSATION COVERAGE IS
UNLAWFUL,
AND SHALL SUBJECT AN EMPLOYER TO CRIMINAL PENALTIES AND CIVIL FINES
UP
TO ONE HUNDRED THOUSAND DOLLARS ($100,000), IN ADDITION TO THE COST
OF
COMPENSATION, DAMAGES AS PROVIDED FOR IN SECTION 3706 OF THE LABOR
CODE,
INTEREST, AND ATTORNEY'S FEES.
CONSTRUCTION LENDING AGENCY
I hereby affirm under penalty of perjury that there is a
construction lending agency for the performance of the work
for which this permit is issued (Sec. 3097, Civ. C.).
Lender's Name ____________________________________________
Lender's Address ____________________________________________
I certify that I have read this application and state that
the above information is correct. I agree to comply with all
city and
county ordinances and state laws relating to building
construction, and
hereby authorize representatives of this county to enter upon
the
above-mentioned property for inspection purposes.
_____________________________________ ____________________
Signature of Applicant or Agent Date
(b) The Contractors' State License Board shall semiannually
compile and distribute to city, county, and city and county building
departments a list of all contractors who did not secure payment of
compensation in compliance with Article 1 (commencing with Section
3700) of Chapter 4 of Part 1 of Division 4 of the Labor Code during
any period for which workers were employed during the preceding six
months.
SEC. 67. Section 19881 of the Health and Safety Code is amended to
read:
19881. (a) No person shall sell, or offer for sale, any new or
used unvented heater that is designed to be used inside any dwelling
house or unit, with the exception of an electric heater, or
decorative gas logs for use in a vented fireplace.
(b) Notwithstanding subdivision (a), natural-gas-fueled unvented
decorative gas logs and fireplaces may be sold if the Department of
Housing and Community Development and the State Department of Health
Services approve of their use, and all of the following are
satisfied:
(1) The Department of Housing and Community Development and the
State Department of Health Services consider and develop recommended
standards for their use. The cost of developing these standards may
not exceed one hundred forty-five thousand dollars ($145,000).
(2) Natural-gas-fueled unvented decorative gas logs and fireplaces
meet the standards developed in accordance with paragraph (1) by the
Department of Housing and Community Development and the State
Department of Health Services.
(3) The California Building Standards Commission adopts the
standards developed in accordance with paragraph (1) and pursuant to
Section 18930.
(4) Natural-gas-fueled unvented decorative gas logs and fireplaces
are listed by an agency approved by the Department of Housing and
Community Development.
(c) Installation of natural-gas-fueled unvented decorative gas
logs and fireplaces sold under standards developed pursuant to
subdivision (b) shall be in accordance with the California Building
Standards Code.
SEC. 68. Section 25143.2 of the Health and Safety Code is amended
to read:
25143.2. (a) Recyclable materials are subject to this chapter and
the regulations adopted by the department to implement this chapter
that apply to hazardous wastes, unless the department issues a
variance pursuant to Section 25143, or except as provided otherwise
in subdivision (b), (c), or (d) or in the regulations adopted by the
department pursuant to Sections 25150 and 25151.
(b) Except as otherwise provided in subdivisions (e), (f), and
(g), recyclable material that is managed in accordance with Section
25143.9 and is or will be recycled by any of the following methods
shall be excluded from classification as a waste:
(1) Used or reused as an ingredient in an industrial process to
make a product if the material is not being reclaimed.
(2) Used or reused as a safe and effective substitute for
commercial products if the material is not being reclaimed.
(3) Returned to the original process from which the material was
generated, without first being reclaimed, if the material is returned
as a substitute for raw material feedstock, and the process uses raw
materials as principal feedstocks.
(c) Except as otherwise provided in subdivision (e), any
recyclable material may be recycled at a facility that is not
authorized by the department pursuant to the applicable hazardous
waste facilities permit requirements of Article 9 (commencing with
Section 25200) if either of the following requirements is met:
(1) The material is a petroleum refinery waste containing oil that
is converted into petroleum coke at the same facility at which the
waste was generated unless the resulting coke product would be
identified as a hazardous waste under this chapter.
(2) The material meets all of the following conditions:
(A) The material is recycled and used at the same facility at
which the material was generated.
(B) The material is recycled within the applicable generator
accumulation time limits specified in Section 25123.3 and the
regulations adopted by the department pursuant to paragraph (1) of
subdivision (b) of Section 25123.3.
(C) The material is managed in accordance with all applicable
requirements for generators of hazardous wastes under this chapter
and regulations adopted by the department.
(d) Except as otherwise provided in subdivisions (e), (f), (g),
and (h), recyclable material that meets the definition of a non-RCRA
hazardous waste in Section 25117.9, is managed in accordance with
Section 25143.9, and meets or will meet any of the following
requirements is excluded from classification as a waste:
(1) The material can be shown to be recycled and used at the site
where the material was generated.
(2) The material qualifies as one or more of the following:
(A) The material is a product that has been processed from a
hazardous waste, or has been handled, at a facility authorized by the
department pursuant to the facility permit requirements of Article 9
(commencing with Section 25200) to process or handle the material,
if the product meets both of the following conditions:
(i) The product does not contain constituents, other than those
for which the material is being recycled, that render the material
hazardous under regulations adopted pursuant to Sections 25140 and
25141.
(ii) The product is used, or distributed or sold for use, in a
manner for which the product is commonly used.
(B) The material is a petroleum refinery waste containing oil that
is converted into petroleum coke at the same facility at which the
waste was generated, unless the resulting coke product would be
identified as a hazardous waste under this chapter.
(C) The material is oily waste, used oil, or spent nonhalogenated
solvent that is managed by the owner or operator of a refinery that
is processing primarily crude oil and is not subject to permit
requirements for the recycling of used oil, of a public utility, or
of a corporate subsidiary, corporate parent, or subsidiary of the
same corporate parent of the refinery or public utility, and meets
all of the following requirements:
(i) The material is either burned in an industrial boiler, an
industrial furnace, an incinerator, or a utility boiler that is in
compliance with with all applicable federal and state laws, or is
recombined with normal process streams to produce a fuel or other
refined petroleum product.
(ii) The material is managed at the site where it was generated;
managed at another site owned or operated by the generator, a
corporate subsidiary of the generator, a subsidiary of the same
entity of which the generator is a subsidiary, or the corporate
parent of the generator; or, if the material is generated in the
course of oil or gas exploration or production, managed by an
unrelated refinery receiving the waste through a common pipeline.
(iii) The material does not contain constituents, other than those
for which the material is being recycled, that render the material
hazardous under regulations adopted pursuant to Sections 25140 and
25141, unless the material is an oil-bearing material or recovered
oil that is managed in accordance with subdivisions (a) and (c) of
Section 25144.
(D) The material is a fuel that is transferred to, and processed
into, a fuel or other refined petroleum product at a petroleum
refinery, as defined in paragraph (4) of subdivision (a) of Section
25144, and meets one of the following requirements:
(i) The fuel has been removed from a fuel tank and is contaminated
with water or nonhazardous debris, of not more than 2 percent by
weight, including, but not limited to, rust or sand.
(ii) The fuel has been unintentionally mixed with an unused
petroleum product.
(3) The material is transported between locations operated by the
same person who generated the material, if the material is recycled
at the last location operated
by that person and all of the conditions of clauses (i) to (vi),
inclusive, of subparagraph (A) of paragraph (4) are met. If
requested by the department or by any official authorized to enforce
this section pursuant to subdivision (a) of Section 25180, a person
handling material subject to this paragraph shall, within 15 days
from the date of receipt of the request, supply documentation to show
that the requirements of this paragraph have been satisfied.
(4) (A) The material is transferred between locations operated by
the same person who generated the material, if the material is to be
recycled at an authorized offsite hazardous waste facility and if all
of the following conditions are met:
(i) The material is transferred by employees of that person in
vehicles under the control of that person or by a registered
hazardous waste hauler under contract to that person.
(ii) The material is not handled at any interim location.
(iii) The material is not held at any publicly accessible interim
location for more than four hours unless required by other provisions
of law.
(iv) The material is managed in compliance with this chapter and
the regulations adopted pursuant to this chapter prior to the initial
transportation of the material and after the receipt of the material
at the last location operated by that person. Upon receipt of the
material at the last location operated by that person, the material
shall be deemed to have been generated at that location.
(v) All of the following information is maintained in an operating
log at the last location operated by that person and kept for at
least three years after receipt of the material at that location:
(I) The name and address of each generator location contributing
material to each shipment received.
(II) The quantity and type of material contributed by each
generator to each shipment of material.
(III) The destination and intended disposition of all material
shipped offsite or received.
(IV) The date of each shipment received or sent offsite.
(vi) If requested by the department, or by any law enforcement
official, a person handling material subject to this paragraph shall,
within 15 days from the date of receipt of the request, supply
documentation to show that the requirements of this paragraph have
been satisfied.
(B) For purposes of paragraph (3) and subparagraph (A) of this
paragraph, "person" also includes corporate subsidiary, corporate
parent, or subsidiary of the same corporate parent.
(C) Persons that are a corporate subsidiary, corporate parent, or
subsidiary of the same corporate parent, and that manage recyclable
materials under paragraph (3) or subparagraph (A) of this paragraph,
are jointly and severally liable for any activities excluded from
regulation pursuant to this section.
(5) The material is used or reused as an ingredient in an
industrial process to make a product if the material is not being
treated before introduction to that process except by one or more of
the following procedures, and if any discharges to air from the
following procedures do not contain constituents that are hazardous
wastes pursuant to the regulations of the department and are in
compliance with applicable air pollution control laws:
(A) Filtering.
(B) Screening.
(C) Sorting.
(D) Sieving.
(E) Grinding.
(F) Physical or gravity separation without the addition of
external heat or any chemicals.
(G) pH adjustment.
(H) Viscosity adjustment.
(6) The material is used or reused as a safe and effective
substitute for commercial products, if the material is not being
treated except by one or more of the following procedures, and if any
discharges to air from the following procedures do not contain
constituents that are hazardous wastes pursuant to the regulations of
the department and are in compliance with applicable air pollution
control laws:
(A) Filtering.
(B) Screening.
(C) Sorting.
(D) Sieving.
(E) Grinding.
(F) Physical or gravity separation without the addition of
external heat or any chemicals.
(G) pH adjustment.
(H) Viscosity adjustment.
(7) The material is a chlorofluorocarbon or
hydrochlorofluorocarbon compound or a combination of
chlorofluorocarbon or hydrochlorofluorocarbon compounds, is being
reused or recycled, and is used in heat transfer equipment,
including, but not limited to, mobile air conditioning systems,
mobile refrigeration, and commercial and industrial air conditioning
and refrigeration systems, used in fire extinguishing products, or
contained within foam products.
(e) Notwithstanding subdivisions (b), (c), and (d), all of the
following recyclable materials are hazardous wastes and subject to
full regulation under this chapter, even if the recycling involves
use, reuse, or return to the original process as described in
subdivision (b), and even if the recycling involves activities or
materials described in subdivisions (c) and (d):
(1) Materials that are a RCRA hazardous waste, as defined in
Section 25120.2, used in a manner constituting disposal, or used to
produce products that are applied to the land, including, but not
limited to, materials used to produce a fertilizer, soil amendment,
agricultural mineral, or an auxiliary soil and plant substance.
(2) Materials that are a non-RCRA hazardous waste, as defined in
Section 25117.9, and used in a manner constituting disposal or used
to produce products that are applied to the land as a fertilizer,
soil amendment, agricultural mineral, or an auxiliary soil and plant
substance. The department may adopt regulations to exclude materials
from regulation pursuant to this paragraph.
(3) Materials burned for energy recovery, used to produce a fuel,
or contained in fuels, except materials exempted under paragraph (1)
of subdivision (c) or excluded under subparagraph (B), (C), or (D) of
paragraph (2) of subdivision (d).
(4) Materials accumulated speculatively.
(5) Materials determined to be inherently wastelike pursuant to
regulations adopted by the department.
(6) Used or spent etchants, stripping solutions, and plating
solutions that are transported to an offsite facility operated by a
person other than the generator and either of the following applies:
(A) The etchants or solutions are no longer fit for their
originally purchased or manufactured purpose.
(B) If the etchants or solutions are reused, the generator and the
user cannot document that they are used for their originally
purchased or manufactured purpose without prior treatment.
(7) Used oil, as defined in subdivision (a) of Section 25250.1,
unless one of the following applies:
(A) The used oil is excluded under subparagraph (B) or (C) of
paragraph (2) of subdivision (d), paragraph (4) of subdivision (d),
subdivision (e) of Section 25250.1, Section 25250.2, or Section
25250.3, and is managed in accordance with the applicable
requirements of Part 279 (commencing with Section 279.1) of Title 40
of the Code of Federal Regulations.
(B) The used oil is used or reused on the site where it was
generated or is excluded under paragraph (3) of subdivision (d), is
managed in accordance with the applicable requirements of Part 279
(commencing with Section 279.1) of Title 40 of the Code of Federal
Regulations, and is not any of the following:
(i) Used in a manner constituting disposal or used to produce a
product that is applied to land.
(ii) Burned for energy recovery or used to produce a fuel unless
the used oil is excluded under subparagraph (B) or (C) of paragraph
(2) of subdivision (d).
(iii) Accumulated speculatively.
(iv) Determined to be inherently wastelike pursuant to regulations
adopted by the department.
(f) (1) Any person who manages a recyclable material under a claim
that the material qualifies for exclusion or exemption pursuant to
this section shall provide, upon request, to the department, the
Environmental Protection Agency, or any local agency or official
authorized to bring an action as provided in Section 25180, all of
the following information:
(A) The name, street and mailing address, and telephone number of
the owner or operator of any facility that manages the material.
(B) Any other information related to the management by that person
of the material requested by the department, the Environmental
Protection Agency, or the authorized local agency or official.
(2) Any person claiming an exclusion or an exemption pursuant to
this section shall maintain adequate records to demonstrate to the
satisfaction of the requesting agency or official that there is a
known market or disposition for the material, and that the
requirements of any exemption or exclusion pursuant to this section
are met.
(3) For purposes of determining that the conditions for exclusion
from classification as a waste pursuant to this section are met, any
person, facility, site, or vehicle engaged in the management of a
material under a claim that the material is excluded from
classification as a waste pursuant to this section shall be subject
to Section 25185.
(g) For purposes of Chapter 6.8 (commencing with Section 25300),
recyclable materials excluded from classification as a waste pursuant
to this section are not excluded from the definition of hazardous
substances in subdivision (g) of Section 25316.
(h) Used oil that fails to qualify for exclusion pursuant to
subdivision (d) solely because the used oil is a RCRA hazardous waste
may be managed pursuant to subdivision (d) if the used oil is also
managed in accordance with the applicable requirements of Part 279
(commencing with Section 279.1) of Title 40 of the Code of Federal
Regulations.
SEC. 69. Section 25179.8 of the Health and Safety Code is amended
to read:
25179.8. (a) Except as provided in subdivision (d), the
department may grant a variance from the requirements of Sections
25179.5 and 25179.6 for a hazardous waste, consistent with Section
25143.
(b) The department may grant a variance from the requirements of
Section 25179.6 for agricultural drainage waters that meet the
criteria established by the department pursuant to Section 25141 if a
person demonstrates, to the satisfaction of the department, that all
of the following conditions apply to the waste:
(1) There are no technically and economically feasible treatment,
reuse, or recycling alternatives available to render the agricultural
drainage water nonhazardous.
(2) The applicant can demonstrate that the continued disposal of
agricultural drainage waters does not pose an immediate or
significant long-term risk to public health or the environment.
(3) The disposal of the agricultural drainage waters is in
compliance with the requirements of Section 25179.3.
(c) A variance granted by the department pursuant to subdivision
(b) shall remain in effect for a period not longer than three years
and may be renewed for additional three-year periods.
(d) When granting a variance pursuant to this section, the
department may specify, where appropriate, any treatment that shall
be required prior to land disposal of the waste, and may impose
requirements that may be necessary to protect the public health and
the environment.
(e) The department shall not grant a variance pursuant to
subdivision (a) for hazardous waste that is restricted or prohibited
by the Environmental Protection Agency pursuant to the federal act,
unless either of the following applies:
(1) The waste has been granted a variance by the Administrator of
the Environmental Protection Agency and the variance granted by the
department does not permit less stringent management than that
required pursuant to the federal variance.
(2) The Environmental Protection Agency has delegated the
authority to grant variances to the department pursuant to the
federal act.
SEC. 70. The heading of Article 11 (commencing with Section
25299.90) of Chapter 6.75 of Division 20 of the Health and Safety
Code is amended to read:
Article 11. Commingled Plume Account
SEC. 71. Section 25299.92 of the Health and Safety Code is amended
to read:
25299.92. A sum not to exceed ten million dollars ($10,000,000)
from Item 3940-001-0439 of Section 2.00 of the Budget Act of 1996
(Ch. 162, Stats. 1996) shall be available for expenditure for the
1996-97 fiscal year for the purposes of this article. In subsequent
fiscal years, it is the intent of the Legislature that an
appropriation be made in the annual Budget Act to carry out this
article.
SEC. 72. Section 25330.4 of the Health and Safety Code is amended
to read:
25330.4. (a) Notwithstanding any other provisions of law, the
Controller shall establish a separate subaccount in the state
account, for any funds received from a settlement agreement or the
General Fund for a removal or remedial action to be performed at a
specific site.
(b) Notwithstanding Section 13340 of the Government Code, funds
deposited in a subaccount established pursuant to subdivision (a) for
those removal or remedial actions are hereby continuously
appropriated to the department for removal or remedial action at the
specific site, and for administrative costs associated with the
removal or remedial action at the specific site.
(c) Notwithstanding any other provision of law, money in a
subaccount for removal or remedial actions shall not revert to the
General Fund or be transferred to any other fund or account in the
State Treasury, except for purposes of investment as provided in
Article 4 (commencing with Section 16470) of Chapter 3 of Part 2 of
Division 4 of Title 2 of the Government Code.
(d) Notwithstanding Section 16305.7 of the Government Code, all
interest or other increment resulting from investment of the funds
specified in subdivision (a) pursuant to Article 4 (commencing with
Section 16470) of Chapter 3 of Part 2 of Division 4 of Title 2 of the
Government Code shall be deposited in the subaccount for removal or
remedial action for that specific site.
(e) At the conclusion of all removal or remedial actions at the
specific site, any unexpended funds in any subaccount established
pursuant to this section shall be transferred to the subaccount for
site operation and maintenance established pursuant to Section
25330.5, if necessary, for those activities at the site, or, if not
needed for site operation and maintenance at the site, to the
Hazardous Waste Control Account.
SEC. 73. Section 25532 of the Health and Safety Code is amended to
read:
25532. Unless the context indicates otherwise, the following
definitions govern the construction of this article:
(a) "Accidental release" means an unanticipated emission of a
regulated substance or other extremely hazardous substance into the
ambient air from a stationary source.
(b) "Administering agency" means the local agency authorized,
pursuant to Section 25502, to implement and enforce this article.
(c) "Covered process" means a process that has a regulated
substance present in more than a threshold quantity.
(d) "Modified stationary source" means an addition or change to a
stationary source that qualifies as a "major change," as defined in
Subpart A of Part 68 of Title 40 of the Code of Federal Regulations.
"Modified stationary source" does not include an increase in
production up to the source's existing operational capacity or an
increase in production level, up to the production levels authorized
in a permit granted pursuant to Section 42300.
(e) "Process" means any activity involving a regulated substance,
including any use, storage, manufacturing, handling, or onsite
movement of the regulated substance or any combination of these
activities. For the purposes of this definition, any group of
vessels that are interconnected, or separate vessels that are located
so that a regulated substance could be involved in a potential
release, shall be considered a single process.
(f) "Qualified person" means a person who is qualified to attest,
at a minimum, to the completeness of an RMP.
(g) "Regulated substance" means any substance that is either of
the following:
(1) A regulated substance listed in Section 68.130 of Title 40 of
the Code of Federal Regulations pursuant to paragraph (3) of
subsection (r) of Section 112 of the Clean Air Act (42 U.S.C. Sec.
7412(r)(3)).
(2) (A) An extremely hazardous substance listed in Appendix A of
Part 355 of Subchapter J of Chapter I of Title 40 of the Code of
Federal Regulations that is any of the following:
(i) A gas at standard temperature and pressure.
(ii) A liquid with a vapor pressure at standard temperature and
pressure equal to or greater than ten millimeters mercury.
(iii) A solid that is one of the following:
(I) In solution or in molten form.
(II) In powder form with a particle size less than 100 microns.
(III) Reactive with a National Fire Protection Association rating
of 2, 3, or 4.
(iv) A substance that the office determines may pose a regulated
substances accident risk pursuant to subclause (II) of clause (i) of
subparagraph (B) or pursuant to Section 25543.3.
(B) (i) On or before June 30, 1997, the office shall, in
consultation with the Office of Environmental Health Hazard
Assessment, determine which of the extremely hazardous substances
listed in Appendix A of Part 355 of Subchapter J of Chapter I of
Title 40 of the Code of Federal Regulations do either of the
following:
(I) Meet one or more of the criteria specified in clauses (i),
(ii), or (iii) of subparagraph (A).
(II) May pose a regulated substances accident risk, in
consideration of the factors specified in subdivision (g) of Section
25543.1, and, therefore, should remain on the list of regulated
substances until completion of the review conducted pursuant to
subdivision (a) of Section 25543.3.
(ii) The office shall adopt, by regulation, a list of the
extremely hazardous substances identified pursuant to clause (i).
Extremely hazardous substances placed on the list are regulated
substances for the purposes of this article. Until the list is
adopted, the administering agency shall determine which extremely
hazardous substances should remain on the list of regulated
substances pursuant to the standards specified in clause (i).
(h) "Regulated substances accident risk" means a potential for the
accidental release of a regulated substance into the environment
that could produce a significant likelihood that persons exposed may
suffer acute health effects resulting in significant injury or death.
(i) "RMP" means the risk management plan required under Part 68
(commencing with Section 68.1) of Subchapter C of Chapter I of Title
40 of the Code of Federal Regulations and by this article.
(j) "State threshold quantity" means the quantity of a regulated
substance described in subparagraph (A) of paragraph (2) of
subdivision (g), as adopted by the office pursuant to Section 25543.1
or 25543.3. Until the office adopts a state threshold quantity for
a regulated substance, the state threshold quantity shall be the
threshold planning quantity for the regulated substance specified in
Appendix A of Part 355 of Subchapter J of Chapter I of Title 40 of
the Code of Federal Regulations.
(k) "Stationary source" means any stationary source, as defined in
Section 68.3 of Title 40 of the Code of Federal Regulations.
(l) "Threshold quantity" means the quantity of a regulated
substance that is determined to be present at a stationary source in
the manner specified in Section 68.115 of Title 40 of the Code of
Federal Regulations and that is the lesser of either of the
following:
(1) The threshold quantity for the regulated substance specified
in Section 68.130 of Title 40 of the Code of Federal Regulations.
(2) The state threshold quantity.
SEC. 74. Section 25534 of the Health and Safety Code is amended to
read:
25534. (a) For any stationary source with one or more covered
processes, the administering agency shall make a preliminary
determination as to whether there is a significant likelihood that
the use of regulated substances by a stationary source may pose a
regulated substances accident risk.
(b) (1) If the administering agency determines that there is a
significant likelihood of a regulated substances accident risk
pursuant to this subdivision, it shall require the stationary source
to prepare and submit an RMP, or may reclassify the covered process
from program 2 to program 3, as specified in Part 68 (commencing with
Section 68.1) of Subchapter C of Chapter I of Title 40 of the Code
of Federal Regulations.
(2) If the administering agency determines that there is not a
significant likelihood of a regulated substances accident risk
pursuant to this subdivision, it may do either of the following:
(A) Require the preparation and submission of an RMP, but need not
do so if it determines that the likelihood of a regulated substances
accident risk is remote, unless otherwise required by federal law.
(B) Reclassify a covered process from program 3 to program 2 or
from program 2 to program 1, as specified in Part 68 (commencing with
Section 68.1) of Subchapter C of Chapter I of Title 40 of the Code
of Federal Regulations, unless the classification of the covered
process is specified in those regulations.
(3) If the administering agency determines that an economic
poison, as defined in Section 12753 of the Food and Agricultural
Code, used on a farm or nursery may pose a regulated substances
accident risk pursuant to this article, the administering agency
shall first consult with the Department of Food and Agriculture or
the county agricultural commissioner to evaluate whether the current
RMP is adequate in relation to the regulated substances accident
risk. This paragraph does not limit the authority of an
administering agency to conduct its duties under this article, or
prohibit the exercise of that authority.
(c) The requirements of this section apply to a stationary source
that is not otherwise required to submit an RMP pursuant to Part 68
(commencing with Section 68.1) of Subchapter C of Chapter I of Title
40 of the Code of Federal Regulations.
SEC. 75. Section 25538 of the Health and Safety Code is amended to
read:
25538. (a) If a stationary source believes that any information
required to be reported, submitted, or otherwise provided to the
administering agency pursuant to this article involves the release of
a trade secret, the stationary source shall provide the information
to the administering agency and shall notify the administering agency
in writing of that belief. Upon receipt of a claim of trade secret
related to an RMP, the administering agency shall review the claim
and shall segregate properly substantiated trade secret information
from information that shall be made available to the public upon
request in accordance with the California Public Records Act (Chapter
3.5 (commencing with Section 6250), Division 7, Title 1, Government
Code). As used in this section, "trade secret" has the same meaning
as in subdivision (d) of Section 6254.7 of the Government Code and
Section 1060 of the Evidence Code.
(b) Except as otherwise specified in this section, the
administering agency may not disclose any properly substantiated
trade secret that is so designated by the owner or operator of a
stationary source.
(c) The administering agency may disclose trade secrets received
by the administering agency pursuant to this article to authorized
officers or employees of other governmental agencies only in
connection with the official duties of that officer or employee
pursuant to any law for the protection of health and safety.
(d) Any officer or employee or former officer or employee of the
administering agency or any other government agency who, because of
that employment or official position, has possession of or access to
information designated as a trade secret pursuant to this section
shall not knowingly and willfully disclose the information in any
manner to any person not authorized to receive the information
pursuant to this section. Notwithstanding Section 25515, any person
who violates this subdivision, and who knows that disclosure of this
information to the general public is prohibited by the section,
shall, upon conviction, be punished by imprisonment in the county
jail for not more than six months or by a fine of not more than one
thousand dollars ($1,000), or by both that fine and imprisonment.
(e) Any information prohibited from disclosure pursuant to any
federal statute or regulation shall not be disclosed.
(f) This section does not authorize any stationary source to
refuse to disclose to the administering agency any information
required pursuant to this article.
(g) (1) Upon receipt of a request for the release of information
to the public that includes information that the stationary source
has notified the administering agency is a trade secret pursuant to
subdivision (a), the administering agency shall notify the stationary
source in writing of the request by certified mail, return receipt
requested. The owner or operator of the stationary source shall have
30 days from receipt of the notification to provide the
administering agency with any materials or information intended to
supplement the information submitted pursuant to subdivision (a) and
needed to substantiate the claim of trade secret. The administering
agency shall review the claim of trade secret and shall determine
whether the claim is properly substantiated.
(2) The administering agency shall inform the stationary source in
writing, by certified mail, return receipt requested, of any
determination by the administering agency that some, or all, of a
claim of trade secret has not been substantiated. Not earlier than
30 days after the receipt by a stationary source of notice of the
determination, the administering agency shall release the information
to the public, unless, prior to the expiration of the 30-day period,
the stationary source files an action in an appropriate court for a
declaratory judgment that the information is subject to protection
under subdivision (b) or for an injunction prohibiting disclosure of
the information to the public, and promptly notifies the
administering agency of that action.
SEC. 76. Section 25548.1 of the Health and Safety Code is amended
to read:
25548.1. As used in this chapter, the following terms have the
following meaning:
(a) "Actual benefit" means the amount, if any, realized by the
lender upon the disposition of property acquired through foreclosure
or its equivalent as a
direct result of a removal or remedial action undertaken by another
person, not to exceed the amount, if any, by which the disposition
proceeds exceed the sum of the balance of all of the following:
(1) The loan or obligation or the amount of the lien, evidenced by
the loan or obligation outstanding at foreclosure or its equivalent.
(2) The costs, including attorneys' fees, incurred by the lender
in connection with the foreclosure or its equivalent, subsequent
ownership, any removal or remedial action, and disposition of the
property.
(b) "Borrower, debtor or obligor" means a person who is obligated
to a lender under a loan or obligation, whether or not the lender
maintains a security interest in that person's property.
(c) "Damages" includes compensatory damages, exemplary damages,
punitive damages, and costs of every kind and nature, including, but
not limited to, costs of a removal or remedial action.
(d) "Fiduciary" means a person who is acting in any of the
following capacities:
(1) As trustee for a trust described in paragraph (1) or (2) of
subdivision (a) of Section 82 of the Probate Code.
(2) As a fiduciary in any arrangement described in paragraphs (1)
to (3), inclusive, or paragraphs (5) to (14), inclusive, of
subdivision (b) of Section 82 of the Probate Code.
(3) A trustee appointed in proceedings under any state or federal
bankruptcy law.
(4) An assignee or a trustee acting under an assignment made for
the benefit of creditors.
(5) A court-appointed receiver.
(e) "Finance lease" means a transaction with respect to which both
of the following apply:
(1) The lessor does not select or manufacture the goods or does
not supply the goods, except in the case of a re-lease, whether it is
created by a new transaction or substitution of the lessee.
(2) The lessor acquires the goods or right to possession and use
of the goods in connection with the lease or a prior lease
transaction.
(f) "Foreclosure or its equivalent" means the acquisition of
property by a lender through any of the following:
(1) Judicial or nonjudicial foreclosure of the lender's security
interest in the property or acceptance of a deed or other conveyance
in satisfaction thereto.
(2) Acceptance of a deed in lieu or other conveyance in
satisfaction of a loan or obligation previously contracted.
(3) Termination of a finance lease by consent or default.
(4) Any other formal or informal manner, whether pursuant to law
or under warranties, covenants, conditions, representations or
promises from the borrower, by which the lender acquires, for
subsequent disposition, actual possession of the property subject to
a security interest.
(g) "Hazardous material" has the same meaning as defined in
subdivision (d) of Section 25260.
(h) (1) "Indicia of ownership" means evidence of a security
interest, evidence of an interest in a security interest, or evidence
of an interest in real or personal property securing a loan or other
obligation, including any legal or equitable title to real or
personal property acquired incident to foreclosure or its equivalent.
(2) "Evidence of an interest" includes, but is not limited to, all
of the following:
(A) Mortgages.
(B) Deeds of trust.
(C) Liens.
(D) Surety bonds and guarantees of obligations.
(E) Title held pursuant to a finance lease in which the lessor
does not select initially the leased property.
(F) Legal or equitable title obtained pursuant to foreclosure or
its equivalent.
(G) Assignments, pledges, or other rights to, or other forms of,
encumbrance against property that are held primarily to protect a
security interest.
(3) A person is not required to hold title or a security interest
to maintain indicia of ownership.
(i) "Lender" means a person to the extent of the capacity in which
that person maintains indicia of ownership primarily to protect a
security interest or makes, acquires, renews, modifies, or holds a
loan or obligation from a borrower. "Lender" includes either of the
following persons:
(1) Any person who acts as, or on behalf of, a lender in
connection with any aspect of the solicitation, negotiation,
consummation, disbursement, administration, servicing, collection,
enforcement, or foreclosure or its equivalent of a loan or obligation
or security interest in property.
(2) Any person who makes, secures, acquires, or holds a loan or
obligation or security interest by assignment, sale, pledge,
subrogation, succession, or operation of law, or becomes the receiver
for the holder of a loan or obligation or security interest.
(j) "Loan or obligation" means a loan, revolving or nonrevolving
line of credit, finance lease, sale-leaseback that provides for a
purchase option in favor of the lessee, installment sale contract,
sale on account, or other credit sale, letter of credit, forbearance
or guaranty, collateral pledge, or other suretyship obligation, and
any extension, renewal, or modification thereof. A loan or
obligation may or may not involve a security interest in property.
(k) (1) Except as provided in paragraphs (3) and (4), "participate
(or participation) in the management of the property" means actual
participation in the management or operational affairs of the
property by the lender while the borrower, under the loan or
obligation, is in possession of the property, and the lender
exercises decisionmaking control over the environmental compliance by
the borrower, so that the lender assumes responsibility for the
hazardous material handling or disposal practices of the borrower, or
exercises control at a level comparable to that of a manager of the
enterprise of the borrower, so that the lender assumes or manifests
responsibility for the overall management of the enterprise
encompassing the day-to-day decisionmaking of the enterprise with
respect to either of the following:
(A) Environmental compliance.
(B) All, or substantially all, of the operational, as opposed to
financial or administrative, aspects of the enterprise other than
environmental compliance.
(2) For purposes of paragraph (1), the following terms have the
following meaning:
(A) "Operational aspects of the enterprise" include functions such
as that of facility or plant manager, operations manager, chief
operating officer, or chief executive officer.
(B) "Financial or administrative aspects" include functions such
as that of a credit manager, accounts payable/receivable manager,
personnel manager, controller, or chief financial officer.
(3) Notwithstanding paragraph (1), "participation in the
management of the property" does not include an act or omission by a
prospective lender prior to making, acquiring, or holding a loan or
obligation. "Participation in the management of the property" also
does not include the actions taken by a prospective lender who
undertakes or requires an environmental inspection of property prior
to making, acquiring, or holding a loan or obligation. A lender or
prospective lender does not "participate in the management of the
property" if the lender or prospective lender requires the borrower
to clean up the property or requires the borrower to comply or come
into compliance with any applicable law or regulation. This chapter
does not require a lender to conduct or require an inspection prior
to foreclosure or its equivalent to qualify for the exemption
provided by this chapter, and the liability of a lender shall not be
based on or affected by whether the lender conducts or requires an
inspection prior to foreclosure or its equivalent.
(4) Loan policing and work out activities, as specified in
paragraphs (5) and (6), that are consistent with holding ownership
indicia primarily to protect a security interest and consistent with
a loan or obligation made, acquired, or held primarily for purposes
other than investment purposes, do not constitute participation in
the management of the property. The authority for the lender to take
those actions may, but are not required to, be contained in
contractual or other documents specifying requirements for financial,
environmental, and other warranties, covenants, conditions,
representations, or promises from the borrower. Loan policing and
work out activities include all activities up to foreclosure or its
equivalent.
(5) A lender who engages in loan policing activities prior to
foreclosure or its equivalent is exempt from liability pursuant to
this chapter if the lender does not, by those actions, participate in
the management of the property. Those actions include, but are not
limited to, all of the following:
(A) Requiring the borrower to conduct a removal or remedial action
during the term of the security interest or loan or obligation.
(B) Requiring the borrower to comply or come into compliance with
applicable federal, state, and local environmental and other laws
during the term of the security interest or loan or obligation.
(C) Securing or exercising authority to monitor or inspect the
property, including onsite inspections, or the business or financial
condition of the borrower during the term of the security interest or
loan or obligation.
(D) Taking other actions to adequately police the loan,
obligation, or security interest, such as requiring the borrower to
comply with any warranties, covenants, conditions, representations,
or promises in connection with the security interest or loan or
obligation.
(6) (A) A lender who engages in work out activities prior to
foreclosure or its equivalents is exempt from liability pursuant to
this chapter if the lender does not, by those actions, participate in
the management of the property.
(B) "Work out" means those actions by which a lender, at any time
prior to foreclosure or its equivalent, seeks to prevent, cure, or
mitigate a default by the borrower, or to preserve or prevent the
diminution of the value of the property, security interest, or loan
or obligation.
(C) Work out activities include, but are not limited to, all of
the following:
(i) Restructuring or renegotiating the terms of the loan,
obligation, or security interest.
(ii) Requiring payment of additional rent or interest.
(iii) Exercising rights pursuant to an assignment of accounts or
other amounts owing to a lender.
(iv) Requiring or exercising rights pursuant to an escrow
agreement pertaining to amounts owing to a lender.
(v) Exercising forbearance.
(vi) Providing specific or general financial or other advice,
suggestions, counseling, or guidance.
(vii) Exercising any right or remedy the lender is entitled to by
law or under any warranties, covenants, conditions, representations,
or promises from the borrower.
(7) A lender does not participate in the management of the
property by taking any response action under Section 107(d)(1) of the
Comprehensive Environmental Response, Compensation and Liability Act
of 1980 (42 U.S.C. Sec. 9607(d)(1)). However, the lender may be
liable for damages, as defined by this chapter, that occur as a
result of the gross negligence or willful misconduct of the lender in
his or her performance of a response action under Section 107 (d)(1)
of the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. Sec. 9607(d)(1)).
(l) "Person" means any entity, including an individual, estate,
trust, firm, business trust, joint stock company, corporation,
partnership, joint venture, limited liability company, association,
or government. "Person" includes any city, county, district, or the
state or any department, subdivision, or agency thereof.
(m) "Primarily to protect a security interest" means that the
indicia of ownership of a lender are held primarily for the purpose
of securing payment or performance of an obligation. "Primarily to
protect a security interest" does not include indicia of ownership
held primarily for investment purposes or indicia of ownership held
primarily for purposes other than as protection for a security
interest. A lender may have other, secondary reasons for maintaining
indicia of ownership, but the primary reason that any indicia of
ownership are held shall be as protection for a security interest.
(n) "Property" means any real or personal property where hazardous
materials are or were generated, handled, managed, deposited,
stored, disposed of, placed, released, or otherwise have come to be
located. In the context of a loan or obligation, "property" includes
any real or personal property in which the obligor has or had an
ownership, leasehold, or possessory interest, whether or not it was
the subject of a security interest for the loan or obligation.
(o) "Release" has the same meaning as defined in Section 25320.
(p) "Remedial action" has the same meaning as defined in
subdivision (g) of Section 25260.
(q) "Removal" means the cleanup or removal of released hazardous
materials from the environment or the taking of other actions that
may be necessary to prevent, minimize, or mitigate damages that may
otherwise result from a release or threatened release, as further
defined in Section 101(23) of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42 U.S.C. Sec. 9601
(23)).
(r) "Security interest" means an interest in a property created or
established for the purpose of securing a loan or obligation.
Security interests include, but are not limited to, mortgages, deeds
of trust, liens, and title pursuant to a finance lease. Security
interests may also arise from transactions such as sale and
leasebacks, conditional sales, installment sales, trust receipt
transactions, certain assignments, factoring agreements, and accounts
receivable financing arrangements and consignments if the
transaction creates or establishes an interest in a property for the
purpose of securing a loan or other obligation.
SEC. 77. Section 27604 of the Health and Safety Code is amended
and renumbered to read:
114015. (a) (1) No unpackaged food that has been served to any
person or returned from any eating area shall be served again or used
in the preparation of other food.
(2) No food prepared or stored in a private home shall be used,
stored, served, offered for sale, sold, or given away in a food
facility.
(3) Except as provided in paragraph (4), a private home shall not
be used for the purpose of giving away, selling, or handling food at
retail, as defined in Section 113875.
(4) Nonperishable, prepackaged food may be given away, sold, or
handled from a private home. For purposes of this paragraph only:
(A) "nonperishable food" means a food that is not a potentially
hazardous food, and does not show signs of spoiling, becoming rancid,
or developing objectable odors during storage at ambient
temperatures; and (B) no food that has exceeded the labeled shelf
life date recommended by the manufacturer shall be deemed to be
"nonperishable."
(b) Except as provided in subdivision (c) of Section 114080,
every bakery product shall have a protective wrapping that bears a
label that complies with the labeling requirements prescribed by the
Sherman Food, Drug, and Cosmetic Law ( Part 5 (commencing with
Section 109875)). Bakery products sold directly to a restaurant,
catering service, or retail bakery, or sold over the counter directly
to the consumer by the manufacturer or bakery distributor shall be
exempt from this subdivision. French style, hearth-baked, or
hard-crusted loaves and rolls shall be considered properly wrapped if
contained in an open-end bag of sufficient size to enclose the
loaves or rolls.
SEC. 78. Section 33459.1 of the Health and Safety Code is amended
to read:
33459.1. (a) An agency may take any actions that the agency
determines are necessary and that are consistent with other state and
federal laws to remedy or remove a release of hazardous substances
on, under, or from property within a project area, subject to the
conditions specified in subdivision (b). Unless an administering
agency has been designated under Section 25262, the agency shall
request cleanup guidelines from the department or the California
regional water quality control board. The agency shall provide the
department and local health and building departments, the California
regional water quality control board, with notification of any
cleanup activity pursuant to this section at least 30 days before the
commencement of the activity. If an action taken by an agency to
remedy or remove a release of a hazardous substance is not
satisfactory to the department or the California regional water
quality control board, the department or the California regional
water quality control board may require the agency to take, or cause
the taking of, additional action to remedy or remove the release, as
provided by applicable law. If an administering agency for the site
has been designated under Section 25262, any requirement for
additional action may be imposed only as provided in Sections 25263
and 25265. If methane or landfill gas is present, the agency shall
obtain written approval from the California Integrated Waste
Management Board prior to taking that action.
(b) Except as provided in subdivision (c), an agency may take the
actions specified in subdivision (a) only under one of the following
conditions:
(1) There is no responsible party for the release identified by
the agency.
(2) The party determined to be responsible for the release by the
agency has been notified by the agency or has received adequate
notice from the department, a California regional water quality
control board, the Environmental Protection Agency, or other
governmental agency with relevant authority and has been given 60
days to respond and to propose a remedial action plan, and the
responsible party has not agreed within an additional 60 days to
implement a plan to remedy or remove the release that has been found
by the agency to be consistent, to the maximum extent possible, with
the priorities, guidelines, criteria, and regulations contained in
the National Contingency Plan and published pursuant to Section 9605
of Title 42 of the United States Code for similar releases,
situations, or events.
(3) The party determined to be responsible for the release has
entered into the agreement specified in paragraph (2), but the
legislative body of the agency subsequently determines that the plan
is not being carried out in an appropriate and timely manner by the
responsible party.
(c) Subdivision (b) does not apply to either of the following
agencies:
(1) An agency taking actions to investigate or conduct feasibility
studies concerning a release.
(2) An agency taking the actions specified in subdivision (a) if
the agency determines that conditions require immediate action.
(d) An agency may designate a local agency in lieu of the
department or the California regional water quality control board to
oversee the remediation or removal of hazardous substances from a
specific hazardous substance release site in accordance with all of
the following conditions:
(1) The local agency may be so designated if it is designated as
the administering agency under Section 25262. In that event, the
local agency, as the administering agency, shall conduct the
oversight of the remedial action in accordance with Chapter 6.65
(commencing with Section 25260) and all provisions of that chapter
shall apply to the remedial action.
(2) The local agency may be so designated if the site is an
underground storage tank site subject to Chapter 6.7 (commencing with
Section 25280) of Division 20, the local agency has been certified
as a certified unified program agency pursuant to Section 25404.1,
the State Water Resources Control Board has entered into an agreement
with the local agency for oversight of those sites pursuant to
Section 25297.1, the local agency determines that the site is within
the guidelines and protocols established in, and pursuant to, that
agreement, and the local agency consents to the designation.
(3) A local agency may not consent to the designation by an agency
unless the local agency determines that it has adequate staff
resources and the requisite technical expertise and capabilities
available to adequately supervise the remedial action.
(4) (A) Where a local agency has been designated pursuant to
paragraph (2), the department or a California regional water quality
control board may require that a local agency withdraw from the
designation, after providing the agency with adequate notice, if both
of the following conditions are met:
(i) The department or a California regional water quality control
board determines that an agency's designation of a local agency was
not consistent with paragraph (2), or makes one of the findings
specified in subdivision (d) of Section 512.
(ii) The department or a California regional water quality control
board determines that it has adequate staff resources and
capabilities available to adequately supervise the remedial action,
and assumes that responsibility.
(B) Nothing in this paragraph prevents a California regional water
quality control board from taking any action pursuant to Division 7
(commencing with Section 13000) of the Water Code.
(5) Where a local agency has been designated pursuant to paragraph
(2), the local agency may, after providing the agency with adequate
notice, withdraw from its designation after making one of the
findings specified in subdivision (d) of Section 512.
(e) This section shall remain in effect only until January 1,
1999, and as of that date is repealed, unless a later enacted
statute, which is enacted before January 1, 1999, deletes or extends
that date.
SEC. 79. Section 33493.4 of the Health and Safety Code is amended
to read:
33493.4. (a) Dwelling units, as defined, in the Alameda Naval Air
Station and the Fleet Industrial Supply Center Project Area made
available to a member of the Homeless Collaborative pursuant to the
Base Closure Community Redevelopment and Homeless Assistance Act of
1994 (Part A of Title XXIX of Public Law 101-510; 10 U.S.C. Sec. 2687
note), and in particular Section (7) (C) through (O) thereof, and
thereafter substantially rehabilitated, shall be deemed substantially
rehabilitated units for purposes of determining the compliance of
the Alameda Naval Air Station and the Fleet Industrial Supply Center
redevelopment agency with the provisions of subdivision (b) of
Section 33413.
(b) For the purposes of this section, "dwelling units" means
permanent or transitional residential units, and does not mean
student dormitory rooms or overnight emergency shelter beds.
(c) For the purposes of this section, "substantially rehabilitated"
means rehabilitation, the value of which constitutes 25 percent of
the after rehabilitation value of the dwelling, inclusive of land
value.
SEC. 80. Section 34120 of the Health and Safety Code is amended to
read:
34120. (a) The legislative body may, at the time of the adoption
of an ordinance declaring that there is a need for a commission to
function in the community or at any time thereafter, by adoption of
an ordinance, declare itself to be the commission, in which case all
of the rights, powers, duties, privileges, and immunities vested by
this part in a commission, except as otherwise provided in this part,
shall be vested in the legislative body of the community.
However, in any community in San Bernardino County that is a
charter city, the adoption of any order or resolution by the
legislative body acting as the commission shall be governed by the
same procedures as are set forth in the provisions of the charter,
and the mayor shall be chairperson of the commission, having the same
power and authority in the conduct of the commission and the
meetings of the legislative body acting as the commission that the
mayor has in the conduct of the affairs of the city.
(b) If the legislative body has declared itself to be the
commission, the legislative body shall appoint two additional
commissioners who are tenants of the housing authority if the housing
authority has tenants. One tenant commissioner shall be over 62
years of age if the housing authority has tenants of that age. If
the housing authority does not have tenants, the legislative body
shall, by ordinance, provide for the appointment to the commission of
two tenants of the housing authority, one of whom shall be over 62
years of age if the housing authority has tenants of that age, within
one year after the housing authority first has tenants. The term of
any tenant appointed pursuant to this subdivision shall be two years
from the date of appointment. If a tenant commissioner ceases to be
a tenant of the housing authority, he or she shall be disqualified
from serving as a commissioner and another tenant of the housing
authority shall be appointed to the remainder of the unexpired term.
A tenant commissioner shall have all the powers, duties, privileges,
and immunities of any other commissioner.
(c) As an alternative to the appointment of tenants of the housing
authority as commissioners pursuant to subdivision (b), if a
community development committee is created as provided in Section
34120.5, the governing body may make tenant appointments pursuant to
subdivision (b) to the committee, rather than to the commission.
SEC. 81. Section 41751 of the Health and Safety Code is amended to
read:
41751. (a) (1) As used in this article, "portable equipment"
includes any portable internal combustion engine and equipment that
is associated with, and driven by, any portable internal combustion
engine.
(2) (A) As used in this article, and except as provided in
subdivision (b), a "portable internal combustion engine" is any
internal combustion engine that, by itself, or contained within or
attached to a piece of equipment, is portable or transportable.
(B) As used in this paragraph, "portable or transportable" means
designed to be, and capable of being, carried or moved from one
location to another. Indicia of portability or transportability
include, but are not limited to, wheels, skids, carrying handles, or
a dolly, trailer, or platform.
(b) Any engine otherwise included in this section is not a
portable internal combustion engine if either of the following
applies:
(1) The engine remains, or will remain, at a fixed location for
more than 12 consecutive months. For purposes of this paragraph, a
"fixed location" is any single site at a building, structure,
facility, or installation.
(2) The
engine is used to propel nonroad equipment or a motor vehicle of any
kind, including, but not limited to, a heavy-duty vehicle.
(c) Portable equipment includes, but is not limited to, any of the
following:
(1) Confined and unconfined abrasive blasting equipment.
(2) Portland concrete batch plants.
(3) Sand and gravel screening, rock crushing, unheated pavement
crushing, and recycling operations equipment.
(4) Consistent with federal law, portable internal combustion
engines used in conjunction with, but not limited to, the following
types of operations or equipment:
(A) Well drilling, including service equipment and work over rigs.
(B) Power generation, excluding cogeneration.
(C) Pumps.
(D) Compressors.
(E) Pile drivers.
(F) Welding.
(G) Cranes.
(H) Wood chippers.
(5) Equipment necessary for the operation of portable equipment.
SEC. 82. Section 44081 of the Health and Safety Code is amended to
read:
44081. (a) (1) The department, in cooperation with the state
board, shall institute procedures for auditing the emissions of
vehicles while actually being driven on the streets and highways of
the state. The department may undertake those procedures itself or
seek a qualified vendor of these services. The primary object of the
procedures shall be the detection of gross polluters. The
procedures shall consist of techniques and technologies determined by
the department to be effective for that purpose, including, but not
limited to, remote sensing. The procedures may include pullovers for
roadside emissions testing and inspection. The department shall
consider the recommendations of the review committee based on the
outcome of the pilot demonstration program conducted pursuant to
Section 44081.6.
(2) The department may additionally use other methods to identify
gross polluting vehicles for out-of-cycle testing and repair.
(b) The department shall, by regulation, establish a program for
the out-of-cycle testing and repair of vehicles found, through
roadside auditing, to be emitting at levels that exceed specified
standards. The program shall include all of the following elements:
(1) Emission standards, and test and inspection procedures and
regulations, adopted in coordination with the state board, applicable
to vehicles tested during roadside auditing. Emission standards for
issuance of a notice of noncompliance to a gross polluter shall be
designed to maximize the identification of vehicles with substantial
excess emissions.
(2) Procedures for issuing notices of noncompliance to owners of
gross polluters, either at the time of the roadside audit, or
subsequently by certified mail, or by obtaining a certificate of
mailing as evidence of service, using technologies for recording
license plate numbers. The notice of noncompliance shall provide
that, unless the vehicle is brought to a designated test-only
facility, or a test-and-repair station that is both licensed and
certified pursuant to Sections 44014 and 44014.2 and is participating
in the pilot program pursuant to subparagraph (B) of paragraph (3)
of subdivision (g) of Section 44014.5, for emissions testing within
30 days, the owner will be required to pay an administrative fee of
five hundred dollars ($500) to be collected by the Department of
Motor Vehicles at the next annual registration renewal or the next
change of ownership of the vehicle, whichever occurs first.
Commencing on the 31st day after issuance of the notice of
noncompliance, the fee shall accrue at the rate of five dollars ($5)
per day up to the maximum of five hundred dollars ($500).
(3) Procedures for the testing of vehicles identified as gross
polluters by a designated test-only facility, or a test-and-repair
station that is both licensed and certified pursuant to Sections
44014 and 44014.2 and is participating in the pilot program pursuant
to subparagraph (B) of paragraph (3) of subdivision (g) of Section
44014.5, to confirm that the vehicle exceeds the minimum emission
standard for gross polluters set by the department.
(4) Procedures requiring owners of vehicles confirmed as gross
polluters to have the vehicle repaired and resubmitted for testing,
and to obtain a certificate of compliance from a designated test-only
facility or removed from service as attested by a certificate of
nonoperation from the Department of Motor Vehicles, within 30 days or
be required to pay an administrative fee of not more than five
hundred dollars ($500), to be collected by the Department of Motor
Vehicles at the next annual registration renewal or the next change
of ownership, whichever occurs first. Commencing on the 31st day
after issuance of the notice of noncompliance, the fee shall accrue
at the rate of five dollars ($5) per day up to the maximum of five
hundred dollars ($500). The registration of a vehicle shall not be
issued or renewed if that vehicle has been identified as a gross
polluter and has not been issued a certificate of compliance. Except
as provided in subdivision (b) of Section 9250.18 of the Vehicle
Code, any revenues collected by the Department of Motor Vehicles
pursuant to this subdivision and Section 9250.18 of the Vehicle Code
shall be deposited in the Vehicle Inspection and Repair Fund. If the
ownership of the vehicle is transferred, the administrative fee
provided for in this subdivision shall be waived if the vehicle is
brought into compliance.
(5) A procedure for notifying the Department of Motor Vehicles of
notices of noncompliance issued, so that the Department of Motor
Vehicles may provide effective collection of the administrative fee.
The Department of Motor Vehicles shall cooperate with, and implement
the requirements of, the department in that regard.
(6) The department may adopt any other regulations necessary for
the effective implementation of this section, as determined by the
department.
(c) Upon the request of the department, the Department of the
California Highway Patrol shall provide assistance in conducting
roadside auditing, to consist of (1) the stopping of vehicles and
traffic management, and (2) the issuance of notices of noncompliance
to gross polluters. The department shall reimburse the Department of
the California Highway Patrol for its costs of providing those
services. The Department of Transportation and affected local
agencies shall provide necessary assistance and cooperation to the
department in the operation of the program.
(d) There shall be no repair cost limit imposed pursuant to
Section 44017 for any repairs that are required to be made under the
roadside auditing program, except as provided in subdivision (d) of
Section 44017.
SEC. 83. Section 44243.5 of the Health and Safety Code is amended
to read:
44243.5. (a) The south coast district shall provide one million
five hundred thousand dollars ($1,500,000) annually on or before
January 15 of each year to the Regional Transportation Agencies
Coalition or its successor agency subject to the following
conditions:
(1) The south coast district may, until January 1, 1999, utilize
revenues from the fund established pursuant to subdivision (b) of
Section 40448.7 for the purpose of this section. Notwithstanding
paragraph (1) of subdivision (a) of Section 40448.7, the south coast
district shall not be required to annually allocate one million
dollars ($1,000,000) to the Air Quality Assistance Fund to replace
revenues allocated pursuant to this section.
(2) On and after January 1, 1999, the south coast district may
utilize revenues received from civil and criminal penalties,
out-of-court settlements, or other sources for the purpose of this
section.
(3) On and after January 1, 1999, the south coast district may
utilize revenues generated pursuant to Section 44243 for the purposes
of this section.
(b) The Regional Transportation Agencies Coalition shall fully
allocate the revenues pursuant to subdivision (a) as expeditiously as
possible to regional or county rideshare agencies for the purpose of
providing marketing and client services to maximize voluntary
ridesharing, including carpools, vanpools, transit, bicycling,
telecommuting, and other alternative methods of commuting by
employees at worksites in the South Coast Air Basin who commute
during the peak period to worksites not regulated by south coast
district Rule 2202. These funds are intended to supplement and not
replace existing rideshare program funding.
SEC. 84. Section 129885 of the Health and Safety Code is amended
to read:
129885. (a) A city or county, as applicable, shall have plan
review and building inspection responsibilities for the construction
or alteration of buildings described in paragraph (1) of subdivision
(b) of Section 129725. The building standards for the construction
or alteration of buildings specified in paragraph (1) of subdivision
(b) of Section 129725 established or applied by a city or county,
shall not be more restrictive or comprehensive than comparable
building standards established, or otherwise applied, to clinics
licensed pursuant to Chapter 1 (commencing with Section 1200) of
Division 2.
(b) Upon the initial submittal to a city or county by the
governing authority or owner of a hospital for plan review and
building inspection services for buildings described in paragraph (1)
of subdivision (b) of Section 129725, the city or county shall reply
in writing to the hospital as to whether or not the plan review by
the city or county will include a certification that the clinic
project submitted for plan review meets the clinic standards
propounded by the office in the California Building Standards Code.
If the city or county indicates that its review will include this
certification, it shall do all of the following:
(1) Apply the applicable clinic provisions of the latest edition
of the California Building Standards Code.
(2) Certify in writing to the applicant within 30 days of
completion of construction whether or not the standards have been
met.
(c) If, upon initial submittal, the city or county indicates that
its plan review will not include this certification, the governing
authority or owner shall submit the plans to the Office of Statewide
Health Planning and Development and the office shall review the plans
for certification to determine whether or not the clinic project
meets the standards propounded by the office in the California
Building Standards Code.
(d) When the office performs the certification review, the office
shall charge a fee in an amount not to exceed its actual cost.
(e) Notwithstanding subdivision (a), the governing authority of a
hospital may request the Office of Statewide Health Planning and
Development to perform plan review and building inspection services
for buildings described in paragraph (1) of subdivision (b) of
Section 129725. If the office agrees to perform these services, the
office shall charge an amount equal to its standard fee for the
construction and alteration of hospital buildings. The construction
or alteration of these buildings shall conform to the applicable
provisions of the latest edition of the California Building Standards
Code for purposes of the plan review and building inspection of the
office pursuant to this subdivision.
(f) A building described in paragraph (1) of subdivision (b) of
Section 129725 that is subject to the plan review and building
inspection of the office pursuant to subdivision (e) may be
designated by the governing authority or owner of the hospital as a
"hospital building" as long as the building remains under the
jurisdiction of the office. This hospital building shall be reviewed
and inspected according to the standards and requirements of the
Alfred E. Alquist Hospital Facilities Seismic Safety Act of 1983
(Chapter 1 (commencing with Section 129675)).
(g) When a building is accepted for review by the office pursuant
to subdivision (e), the governing authority of the hospital shall not
request the city or county, as applicable, to conduct plan review
and building inspection for any subsequent alteration of the same
building, unless written notification is submitted to the office by
the governing authority or owner of the hospital.
SEC. 85. Section 742.33 of the Insurance Code is amended to read:
742.33. Books, records, and documents pertaining to the business
of the multiple employer welfare arrangement shall be maintained by
the administrator for a period of five years. "Administrator," as
used in this section, has the same meaning as that contained in
Section 1002(16)(A) of Title 29 of the United States Code.
SEC. 86. Section 10123.13 of the Insurance Code is amended to
read:
10123.13. Every insurer issuing group or individual policies of
disability insurance that covers hospital, medical, or surgical
expenses, including those telemedicine services covered by the
insurer as defined in subdivision (a) of Section 2290.5 of the
Business and Professions Code, shall reimburse claims or any portion
of any claim, whether in state or out of state, for those expenses as
soon as practical, but no later than 30 working days after receipt
of the claim by the insurer unless the claim or portion thereof is
contested by the insurer, in which case the claimant shall be
notified, in writing, that the claim is contested or denied, within
30 working days after receipt of the claim by the insurer. The
notice that a claim is being contested shall identify the portion of
the claim that is contested and the specific reasons for contesting
the claim.
If an uncontested claim is not reimbursed by delivery to the
claimant's address of record within 30 working days after receipt,
interest shall accrue at the rate of 10 percent per annum beginning
with the first calendar day after the 30-working-day period.
For purposes of this section, a claim, or portion thereof, is
reasonably contested when the insurer has not received a completed
claim and all information necessary to determine payer liability for
the claim, or has not been granted reasonable access to information
concerning provider services. Information necessary to determine
liability for the claims includes, but is not limited to, reports of
investigations concerning fraud and misrepresentation, and necessary
consents, releases, and assignments, a claim on appeal, or other
information necessary for the insurer to determine the medical
necessity for the health care services provided to the claimant.
The obligation of the insurer to comply with this section shall
not be deemed to be waived when the insurer requires its contracting
entities to pay claims for covered services.
SEC. 87. Section 10145.3 of the Insurance Code is amended to read:
10145.3. (a) Every disability insurer that covers hospital,
medical, or surgical benefits shall provide an external, independent
review process to examine the insurer's coverage decisions regarding
experimental or investigational therapies for individual insureds who
meet all of the following criteria:
(1) The insured has a terminal condition that, according to the
insured's physician's current diagnosis, has a high probability of
causing death within two years from the date of the request for an
independent medical review.
(2) The insured's physician certifies that the insured has a
condition, as defined in paragraph (1), for which standard therapies
have not been effective in improving the condition of the insured, or
for which standard therapies would not be medically appropriate for
the insured, or for which there is no more beneficial standard
therapy covered by the insurer than the therapy proposed pursuant to
paragraph (3).
(3) Either (A) the insured's contracting physician has recommended
a drug, device, procedure, or other therapy that the physician
certifies in writing is likely to be more beneficial to the insured
than any available standard therapies, or (B) the insured, or the
insured's physician who is a licensed, board-certified or
board-eligible physician qualified to practice in the area of
practice appropriate to treat the insured's condition, has requested
a therapy that, based on two documents from the medical and
scientific evidence, as defined in subdivision (d), is likely to be
more beneficial for the insured than any available standard therapy.
The physician certification pursuant to this subdivision shall
include a statement of the evidence relied upon by the physician in
certifying his or her recommendation. Nothing in this subdivision
shall be construed to require the insurer to pay for the services of
a noncontracting physician, provided pursuant to this subdivision,
that are not otherwise covered pursuant to the contract.
(4) The insured has been denied coverage by the insurer for a
drug, device, procedure, or other therapy recommended or requested
pursuant to paragraph (3), unless coverage for the specific therapy
has been excluded by the plan contract.
(5) This section does not apply to any Medi-Cal beneficiary
enrolled with an insurer under the insurer's contract with the
Medi-Cal program.
(6) The specific drug, device, procedure, or other therapy
recommended pursuant to paragraph (3) would be a covered service
except for the plan's determination that the therapy is experimental
or under investigation.
(b) The insurer's external, independent review shall meet the
following criteria:
(1) The insurer shall offer all insureds who meet the criteria in
subdivision (a) the opportunity to have the requested therapy
reviewed under the external, independent review process. The insurer
shall notify eligible insureds in writing of the opportunity to
request the external independent review within five business days of
the decision to deny coverage.
(2) The insurer shall contract with one or more impartial,
independent entities that are accredited pursuant to subdivision (c).
The entity shall arrange for review of the coverage decision by
selecting an independent panel of at least three physicians or other
providers who are experts in the treatment of the insured's medical
condition and knowledgeable about the recommended therapy. If the
entity is an academic medical center accredited in accordance with
subdivision (e), the independent panel may include experts affiliated
with or employed by the entity. A panel of two experts may be
arranged at the insurer's request, provided the insured consents in
writing. The independent entity may arrange for a panel of one
expert only if the independent entity certifies in writing that there
is only one expert qualified and able to review the recommended
therapy. Neither the insurer nor the insured shall choose or control
the choice of the physician or other provider experts.
(3) Neither the expert, nor the independent entity, nor any
officer, director, or management employee of the independent entity
may have any material professional, familial, or financial
affiliation, as defined in paragraph (4), with any of the following:
(A) The insurer.
(B) Any officer, director, or management employee of the insurer.
(C) The physician, the physician's medical group, or the
independent practice association (IPA) proposing the therapy.
(D) The institution at which the therapy would be provided.
(E) The development or manufacture of the principal drug, device,
procedure, or other therapy proposed for the insured whose treatment
is under review.
(4) For purposes of this section, the following terms have the
following meanings:
(A) "Material familial affiliation" means any relationship as a
spouse, child, parent, sibling, spouse's parent, or child's spouse.
(B) "Material professional affiliation" means any
physician-patient relationship, any partnership or employment
relationship, a shareholder or similar ownership interest in a
professional corporation, or any independent contractor arrangement
that constitutes a material financial affiliation with any expert or
any officer or director of the independent entity. The term
"material professional affiliation" does not include affiliations
that are limited to staff privileges at a health facility.
(C) "Material financial affiliation" means any financial interest
of more than 5 percent of total annual revenue or total annual income
of an entity or individual to which this subdivision applies.
"Material financial affiliation" does not include payment by the
insurer to the independent entity for the services required by this
section, nor does "material financial affiliation" include an expert'
s participation as a contracting provider for the insurer where the
expert is affiliated with an academic medical center or a National
Cancer Institute-designated clinical cancer research center.
(5) The insured shall not be required to pay for the external
independent review. The costs of the review shall be borne by the
insurer.
(6) The insurer shall provide to the independent entity arranging
for the panel of experts a copy of the following documents within
five business days of the insurer's receipt of a request by an
insured or insured's physician for an external independent review.
(A) The medical records relevant to the patient's condition for
which the proposed therapy has been recommended, provided the
documents are within the insurer's possession. Any medical records
provided to the insurer after the initial documents are provided to
the independent entity shall be forwarded by the insurer to the
independent entity within five business days. The confidentiality of
the medical records shall be maintained pursuant to Section 56.10 of
the Civil Code.
(B) A copy of any relevant documents used by the insurer in
determining whether the proposed therapy should be covered, and any
statement by the insurer explaining the reasons for the insurer's
decision not to provide coverage for the proposed therapy. The
insurer shall provide, upon request, a copy of the documents required
by this paragraph, except for the documents described in paragraphs
(A) and (C), to the insured and the insured's physician.
(C) Any information submitted by the insured or the insured's
physician to the insurer in support of the insured's request for
coverage of the proposed drug, device, procedure, or other therapy.
(7) The experts on the panel shall render their analyses and
recommendations within 30 days of the receipt of the insured's
request for review. If the insured's physician determines that the
proposed therapy would be significantly less effective if not
promptly initiated, the analyses and recommendations of the experts
on the panel shall be rendered within seven days of the request for
expedited review. At the request of the expert, the deadline shall
be extended by up to three days for a delay in providing the
documents required by paragraph (6) of subdivision (b).
(8) Each expert's analysis and recommendation shall be in written
form and state the reasons the requested therapy is or is not likely
to be more beneficial for the insured than any available standard
therapy, and the reasons that the expert recommends that the therapy
should or should not be covered by the insurer, citing the insured's
specific medical condition, the relevant documents provided pursuant
to paragraph (6), and the relevant medical and scientific evidence,
including, but not limited to, the medical and scientific evidence as
defined in subdivision (d), to support the expert's recommendation.
(9) The independent entity shall provide the insurer and the
insured's physician with the expert's analyses and recommendations, a
description of the qualifications of each expert, and any other
information that it chooses to provide to the insurer and the insured'
s physician, including, but not limited to, the names of the expert
reviewers. The independent entity shall not be required to disclose
the names of the expert reviewers to the insurer or to the insured's
physician, except pursuant to a properly made request for discovery.
If the independent entity chooses to disclose the names of the
experts on the panel to the insurer, the independent entity must also
disclose the names of the experts to the insured's physician. The
insured's physician may provide these documents and information to
the enrollee.
(10) If the majority of experts on the panel recommend providing
the proposed therapy, pursuant to paragraph (8), the recommendation
shall be binding on the insurer. If the recommendations of the
experts on the panel are evenly divided as to whether the therapy
should be provided, then the panel's decision shall be deemed to be
in favor of coverage. If less than a majority of the experts on the
panel recommend providing the therapy, the insurer is not required to
provide the therapy. Coverage for the services required under this
section shall be provided subject to the terms and conditions
generally applicable to other benefits under the contract.
(11) The insurer shall have written policies describing the
external, independent review process. The insurer shall disclose the
availability of the external, independent review process and how
insureds may access the review process in the insurer's evidence of
coverage and disclosure forms.
(c) The Commissioner of Corporations, in consultation with the
Insurance Commissioner, shall, by January 1, 1998, contract with a
private, nonprofit accrediting organization to accredit the
independent review entities specified in subdivision (b). The
accrediting organization shall have the power to grant and revoke
accreditation, and shall develop, apply, and enforce accreditation
standards, including those required in subdivision (e), that ensure
the independence of the independent review entity, the
confidentiality of the medical records, and the qualifications and
independence of the health care professionals providing the analyses
and recommendations requested of them. The accrediting organization
shall demonstrate the ability to objectively evaluate the performance
of independent entities and shall demonstrate that it has no
conflict of interest, including any material professional, familial,
or financial affiliation as defined in paragraph (4) of subdivision
(b) with any independent entity or disability insurer, in accrediting
entities for the purpose of reviewing medical treatments, treatment
recommendations, and coverage decisions by disability insurers.
(d) For the purposes of paragraph (3) of subdivision (a), "medical
and scientific evidence" means the following sources:
(1) Peer-reviewed scientific studies published in or
accepted for publication by medical journals that meet nationally
recognized requirements for scientific manuscripts and that submit
most of their published articles for review by experts who are not
part of the editorial staff.
(2) Peer-reviewed literature, biomedical compendia and other
medical literature that meet the criteria of the National Institute
of Health's National Library of Medicine for indexing in Index
Medicus, Excerpta Medicus (EMBASE), Medline and MEDLARS data base
Health Services Technology Assessment Research (HSTAR).
(3) Medical journals recognized by the Secretary of Health and
Human Services, under Section 1861(t)(2) of the Social Security Act.
(4) The following standard reference compendia: The American
Hospital Formulary Service-Drug Information, the American Medical
Association Drug Evaluation, the American Dental Association Accepted
Dental Therapeutics and The United States Pharmacopoeia-Drug
Information.
(5) Findings, studies, or research conducted by or under the
auspices of federal government agencies and nationally recognized
federal research institutes, including the Federal Agency for Health
Care Policy and Research, National Institutes of Health, National
Cancer Institute, National Academy of Sciences, Health Care Financing
Administration, Congressional Office of Technology Assessment, and
any national board recognized by the National Institutes of Health
for the purpose of evaluating the medical value of health services.
(6) Peer-reviewed abstracts accepted for presentation at major
medical association meetings.
(e) In order to receive accreditation for the purposes of this
section, an independent entity shall meet all of the following
requirements:
(1) The independent entity must be an organization that has as its
primary function the provision of expert reviews and related
services and receives a majority of its revenues from these services,
except that an academic medical center may qualify as an independent
entity for purposes of this act without meeting either of these
criteria. An independent entity may not be a subsidiary of, nor in
any way owned or controlled by, a health plan, a trade association of
health plans, or a professional association of health care
providers.
(2) The independent entity must submit to the accrediting
organization and to the Department of Corporations the following
information upon initial application for accreditation and annually
thereafter upon any change to any of the following information:
(A) The names of all stockholders and owners of more than 5
percent of any stock or options, if a publicly held organization.
(B) The names of all holders of bonds or notes in excess of one
hundred thousand dollars ($100,000), if any.
(C) The names of all corporations and organizations that the
independent entity controls or is affiliated with, and the nature and
extent of any ownership or control, including the affiliated
organization's type of business.
(D) The names and biographical sketches of all directors,
officers, and executives of the independent entity, as well as a
statement regarding any relationships the directors, officers, and
executives may have with any health care service plan, disability
insurer, managed care organization, provider group or board or
committee.
(E) The percentage of revenue the independent entity receives from
expert reviews.
(F) A description of the review process, including, but limited
not to, the method of selecting expert reviewers and matching the
expert reviewers to specific cases.
(G) A description of the system the independent entity uses to
identify and recruit expert reviewers, the number of expert reviewers
credentialed, and the types of cases the experts are credentialed to
review.
(H) Documentation regarding the medical institutions from which
the independent entity has selected the experts during the previous
12 months, and the percentage of opinions obtained from each
institution.
(I) A description of the areas of expertise available from expert
reviewers retained by the independent entity.
(J) A description of how the independent entity ensures compliance
with the conflict-of-interest provisions of this section.
(3) The independent entity must demonstrate that it has a quality
assurance mechanism in place that does the following:
(A) Ensures that the experts retained are appropriately
credentialed and privileged.
(B) Ensures that the reviews provided by the experts are timely,
clear and credible, and that reviews are monitored for quality on an
ongoing basis.
(C) Ensures that the method of selecting expert reviewers for
individual cases achieves a fair and impartial panel of experts who
are qualified to render recommendations regarding the clinical
conditions and therapies in question.
(D) Ensures the confidentiality of medical records and the review
materials, consistent with the requirements of this section.
(E) Ensures the independence of the experts retained to perform
the reviews through conflict-of-interest policies and prohibitions
and adequate screening for conflicts of interest, pursuant to
paragraph (3) of subdivision (b).
(f) (1) The Department of Corporations shall receive the
information filed by independent entities pursuant to paragraph (2)
of subdivision (e) for the purpose of creating a file of public
records. The Department of Corporations shall not be responsible for
accrediting independent entities.
(2) The accrediting organization shall provide, upon the request
of any interested person, a copy of all nonproprietary information
filed with it by the independent entity under paragraph (2) of
subdivision (e). The accrediting organization may charge a
reasonable fee to the interested person for photocopying the
requested information.
(g) The independent review process established by this section
shall be required on and after July 1, 1998.
SEC. 88. Section 10164.2 of the Insurance Code is amended to read:
10164.2. (a) For a policy of individual life insurance that is
surrendered by the policy owner, the insurer shall return to the
owner all moneys due in relation to that policy as expeditiously as
possible, but in no event more than 45 days from the date the
surrender is effective as provided in subdivision (b). However, this
section does not supersede the provisions of subdivision (f) of
Section 10160 empowering an insurer to defer payment of cash
surrender value for up to six months, to the extent that deferral is
necessary to assure the solvency of the insurer.
(b) Unless a later date permitted by the policy (but not later
than 45 days after the request is received) is requested by the
policy owner, a surrender of a life insurance policy is effective on
the date the request is received, if the request is made to the
insurer or servicing agent authorized by the insurer in writing to
receive these requests on the insurer's behalf and contains the
elements specified by the insurer in the contract. The insurer may
require the request be in writing. The insurer may require some or
all of the following elements, but shall not require more:
(1) A statement that makes it clear that the policy owner intends
to surrender, in whole or in part, the contract in question.
(2) The policy number of the policy to be surrendered.
(3) The name of the insured on the policy to be surrendered.
(4) The signature of the owner of the policy and, if required by
the policy or by a legally binding document of which the insurer has
actual notice, the signature of a collateral assignee, irrevocable
beneficiary, or other person having an interest in the policy through
the legally binding document.
(5) Either the policy itself, or, in lieu of the policy, a
statement that the policy has been lost or destroyed.
(c) When the policy owner requests of an insurer or servicing
agent information about surrendering a policy, the insurer or
servicing agent shall provide, as expeditiously as possible, a
written notice setting forth either the requirements of this section
or the insurer's requirements, if less.
(d) A policy subject to this section issued on or after January 1,
1997, shall either include language, which may be included by
endorsement, or be accompanied by a notice setting forth the elements
necessary to surrender the policy as required by this section or by
the insurer, if less.
(e) Nothing in this section shall be construed to limit an
existing statutory right to return a policy for surrender, nor shall
it limit a contractual provision that provides a greater right or
option to the policy owner.
(f) For a written request, for purposes of this section, "received"
means the first day that the written notice is delivered to the
address of the insurer or servicing agent authorized by the insurer
in writing to receive these requests on the insurer's behalf. An
insurer or servicing agent shall maintain a procedure for ensuring
that requests for surrender are logged or stamped on the date
received, and not on a later date due to the insurer's or servicing
agent's internal routing or delivery procedures. If this procedure
is not maintained, it shall be conclusively presumed that a request
was received on the delivery date shown on an express, certified, or
registered mail receipt form of the United States Postal Service or
by a commercial carrier, if delivered by commercial carrier, or the
earlier of (1) two business days after the request was postmarked by
the United States Postal Service or (2) one business day before the
date stamped received by the insurer or servicing agent. For
purposes of this subdivision, "business day" has the meaning set
forth in subdivision (g) of Section 1215. Postmarks generated by
postage meters not located at an office of the United States Postal
Service are to be disregarded.
(g) This section does not alter a contractual provision governing
calculation of cash or surrender or other values. The effective date
established by subdivision (b) is intended to establish a date
certain on which a policyholder may rely in determining when the
45-day period specified in subdivision (a) begins to run.
Subdivision (b) is not intended to advance a date otherwise provided
by contract that is triggered by a request to surrender. An insurer
may request information in addition to that listed in subdivision
(b). However, an insurer's request for additional information does
not delay an effective date established by a policyholder's
compliance with subdivision (b).
SEC. 89. Section 10509.963 of the Insurance Code is amended to
read:
10509.963. If the commissioner has reason to believe that any
insurer has violated this chapter, the commissioner may request and
the insurer shall file both of the following:
(a) An example of the annual report to the policy owner with
notice of adverse change in nonguaranteed elements.
(b) An example of an illustration.
SEC. 90. Section 10509.975 of the Insurance Code is amended to
read:
10509.975. (a) A life insurer shall provide to all prospective
insureds a buyer's guide prior to accepting the applicant's initial
premium or premium deposit. However, if the policy for which
application is made contains an unconditional refund provision of at
least 10 days, the buyer's guide shall be delivered with the policy
or prior to delivery of the policy.
(b) For the purposes of this chapter, a buyer's guide is a
document that contains, and is limited to, the current buyer's guide
recommended for use by the National Association of Insurance
Commissioners.
SEC. 91. Section 1777.5 of the Labor Code is amended to read:
1777.5. Nothing in this chapter shall prevent the employment of
properly registered apprentices upon public works.
Every apprentice shall be paid the standard wage paid to
apprentices under the regulations of the craft or trade at which he
or she is employed, and shall be employed only at the work of the
craft or trade to which he or she is registered.
Only apprentices, as defined in Section 3077, who are in training
under apprenticeship standards and written apprentice agreements
under Chapter 4 (commencing with Section 3070) of Division 3 are
eligible to be employed on public works. The employment and training
of each apprentice shall be in accordance with the apprenticeship
standards and apprentice agreements under which he or she is
training.
When the contractor to whom the contract is awarded by the state
or any political subdivision, or any subcontractor under him or her,
in performing any of the work under the contract or subcontract,
employs workers in any apprenticeable craft or trade, the contractor
and subcontractor shall apply to the joint apprenticeship committee
administering the apprenticeship standards of the craft or trade in
the area of the site of the public work for a certificate approving
the contractor or subcontractor under the apprenticeship standards
for the employment and training of apprentices in the area or
industry affected. However, approval as established by the joint
apprenticeship committee or committees shall be subject to the
approval of the Administrator of Apprenticeship. The joint
apprenticeship committee or committees, subsequent to approving the
subject contractor or subcontractor, shall arrange for the dispatch
of apprentices to the contractor or subcontractor in order to comply
with this section. Every contractor and subcontractor shall submit
contract award information to the applicable joint apprenticeship
committee that includes an estimate of journeyman hours to be
performed under the contract, the number of apprentices to be
employed, and the approximate dates the apprentices will be employed.
There is an affirmative duty upon the joint apprenticeship
committee or committees administering the apprenticeship standards of
the craft or trade in the area of the site of the public work to
ensure equal employment and affirmative action in apprenticeship for
women and minorities. Contractors or subcontractors shall not be
required to submit individual applications for approval to local
joint apprenticeship committees provided they are already covered by
the local apprenticeship standards. The ratio of work performed by
apprentices to journeymen who shall be employed in the craft or trade
on the public work may be the ratio stipulated in the apprenticeship
standards under which the joint apprenticeship committee operates,
but, except as otherwise provided in this section, in no case shall
the ratio be less than one hour of apprentices work for every five
hours of labor performed by a journeyman. However, the minimum ratio
for the land surveyor classification shall not be less than one
apprentice for each five journeymen.
Any ratio shall apply during any day or portion of a day when any
journeyman, or the higher standard stipulated by the joint
apprenticeship committee, is employed at the job site and shall be
computed on the basis of the hours worked during the day by
journeymen so employed, except for the land surveyor classification.
The contractor shall employ apprentices for the number of hours
computed as above before the end of the contract. However, the
contractor shall endeavor, to the greatest extent possible, to employ
apprentices during the same time period that the journeymen in the
same craft or trade are employed at the job site. Where an hourly
apprenticeship ratio is not feasible for a particular craft or trade,
the Division of Apprenticeship Standards, upon application of a
joint apprenticeship committee, may order a minimum ratio of not less
than one apprentice for each five journeymen in a craft or trade
classification.
The contractor or subcontractor, if he or she is covered by this
section, upon the issuance of the approval certificate, or if he or
she has been previously approved in the craft or trade, shall employ
the number of apprentices or the ratio of apprentices to journeymen
stipulated in the apprenticeship standards. Upon proper showing by
the contractor that he or she employs apprentices in the craft or
trade in the state on all of his or her contracts on an annual
average of not less than one hour of apprentice work for every five
hours of labor performed by a journeyman or, in the land surveyor
classification, one apprentice for each five journeymen, the Division
of Apprenticeship Standards may grant a certificate exempting the
contractor from the 1-to-5 hourly ratio as set forth in this section.
This section does not apply to contracts of general contractors or
to contracts of specialty contractors not bidding for work through a
general or prime contractor, when the contracts of general
contractors or those specialty contractors involve less than thirty
thousand dollars ($30,000) or 20 working days. Any work performed by
a journeyman in excess of eight hours per day or 40 hours per week
shall not be used to calculate the hourly ratio required by this
section.
"Apprenticeable craft or trade," as used in this section, means a
craft or trade determined as an apprenticeable occupation in
accordance with rules and regulations prescribed by the California
Apprenticeship Council. The joint apprenticeship committee has the
discretion to grant a certificate, which shall be subject to the
approval of the Administrator of Apprenticeship, exempting a
contractor from the 1-to-5 ratio set forth in this section when it
finds that any one of the following conditions is met:
(a) Unemployment for the previous three-month period in the area
exceeds an average of 15 percent.
(b) The number of apprentices in training in the area exceeds a
ratio of 1 to 5.
(c) There is a showing that the apprenticeable craft or trade is
replacing at least one-thirtieth of its journeymen annually through
apprenticeship training, either on a statewide basis or on a local
basis.
(d) Assignment of an apprentice to any work performed under a
public works contract would create a condition that would jeopardize
his or her life or the life, safety, or property of fellow employees
or the public at large or if the specific task to which the
apprentice is to be assigned is of such a nature that training cannot
be provided by a journeyman.
When exemptions are granted to an organization that represents
contractors in a specific trade from the 1-to-5 ratio on a local or
statewide basis, the member contractors will not be required to
submit individual applications for approval to local joint
apprenticeship committees, if they are already covered by the local
apprenticeship standards.
A contractor to whom the contract is awarded, or any subcontractor
under him or her, who, in performing any of the work under the
contract, employs journeymen or apprentices in any apprenticeable
craft or trade and who is not contributing to a fund or funds to
administer and conduct the apprenticeship program in any craft or
trade in the area of the site of the public work, to which fund or
funds other contractors in the area of the site of the public work
are contributing, shall contribute to the fund or funds in each craft
or trade in which he or she employs journeymen or apprentices on the
public work in the same amount or upon the same basis and in the
same manner as the other contractors do, but, where the trust fund
administrators are unable to accept the funds, contractors not
signatory to the trust agreement shall pay a like amount to the
California Apprenticeship Council. The contractor or subcontractor
may add the amount of the contributions in computing his or her bid
for the contract. The Division of Labor Standards Enforcement is
authorized to enforce the payment of the contributions to the fund or
funds as set forth in Section 227.
The body awarding the contract shall cause to be inserted in the
contract stipulations to effectuate this section. The stipulations
shall fix the responsibility of compliance with this section for all
apprenticeable occupations with the prime contractor.
All decisions of the joint apprenticeship committee under this
section are subject to Section 3081.
SEC. 92. Section 6500 of the Labor Code is amended to read:
6500. (a) For those employments or places of employment that by
their nature involve a substantial risk of injury, the division shall
require the issuance of a permit prior to the initiation of any
practices, work, method, operation, or process of employment. The
permit requirement of this section is limited to employment or places
of employment that are any of the following:
(1) Construction of trenches or excavations that are five feet or
deeper and into which a person is required to descend.
(2) The construction of any building, structure, falsework, or
scaffolding more than three stories high or the equivalent height.
(3) The demolition of any building, structure, falsework, or
scaffold more than three stories high or the equivalent height.
(4) The underground use of diesel engines in work in mines and
tunnels.
This subdivision does not apply to motion picture, television, or
theater stages or sets, including, but not limited to, scenery,
props, backdrops, flats, greenbeds, and grids.
(b) On or after January 1, 2000, this subdivision shall apply to
motion picture, television, or theater stages or sets, if there has
occurred within any one prior calendar year in any combination at
separate locations three serious injuries, fatalities, or serious
violations related to the construction or demolition of sets more
than 36 feet in height for the motion picture, television, and
theatrical production industry.
An annual permit shall be required for employers who construct or
dismantle motion picture, television, or theater stages or sets that
are more than three stories or the equivalent height. A single
permit shall be required under this subdivision for each employer,
regardless of the number of locations where the stages or sets are
located. An employer with a currently valid annual permit issued
under this subdivision shall not be required to provide notice to the
division prior to commencement of any work activity authorized by
the permit. The division may adopt procedures to permit employers to
renew by mail the permits issued under this subdivision. For
purposes of this subdivision, "motion picture, television, or theater
stages or sets" include, but are not limited to, scenery, props,
backdrops, flats, greenbeds, and grids.
SEC. 93. Section 186.2 of the Penal Code is amended to read:
186.2. For purposes of this chapter, the following definitions
apply:
(a) "Criminal profiteering activity" means any act committed or
attempted or any threat made for financial gain or advantage, which
act or threat may be charged as a crime under any of the following
sections:
(1) Arson, as defined in Section 451.
(2) Bribery, as defined in Sections 67, 67.5, and 68.
(3) Child pornography or exploitation, as defined in subdivision
(b) of Section 311.2, or Section 311.3 or 311.4, which may be
prosecuted as a felony.
(4) Felonious assault, as defined in Section 245.
(5) Embezzlement, as defined in Sections 424 and 503.
(6) Extortion, as defined in Section 518.
(7) Forgery, as defined in Section 470.
(8) Gambling, as defined in Sections 337a to 337f, inclusive, and
Section 337i, except the activities of a person who participates
solely as an individual bettor.
(9) Kidnapping, as defined in Section 207.
(10) Mayhem, as defined in Section 203.
(11) Murder, as defined in Section 187.
(12) Pimping and pandering, as defined in Section 266.
(13) Receiving stolen property, as defined in Section 496.
(14) Robbery, as defined in Section 211.
(15) Solicitation of crimes, as defined in Section 653f.
(16) Grand theft, as defined in Section 487.
(17) Trafficking in controlled substances, as defined in Sections
11351, 11352, and 11353 of the Health and Safety Code.
(18) Violation of the laws governing corporate securities, as
defined in Section 25541 of the Corporations Code.
(19) Any of the offenses contained in Chapter 7.5 (commencing with
Section 311) of Title 9, relating to obscene matter, or in Chapter
7.6 (commencing with Section 313) of Title 9, relating to harmful
matter that may be prosecuted as a felony.
(20) Presentation of a false or fraudulent claim, as defined in
Section 550.
(21) Money laundering, as defined in Section 186.10.
(22) Offenses relating to the counterfeit of a registered mark, as
specified in Section 350.
(23) Offenses relating to the unauthorized access to computers,
computer systems, and computer data, as specified in Section 502.
(24) Conspiracy to commit any of the crimes listed above, as
defined in Section 182.
(25) Engaging in a pattern of criminal gang activity, as defined
in subdivision (e) of Section 186.22.
(b) "Pattern of criminal profiteering activity" means engaging in
at least two incidents of criminal profiteering, as defined by this
act, that meet the following requirements:
(1) Have the same or a similar purpose, result, principals,
victims, or methods of commission, or are otherwise interrelated by
distinguishing characteristics.
(2) Are not isolated events.
(3) Were committed as a criminal activity of organized crime.
Acts that would constitute a "pattern of criminal profiteering
activity" may not be used by a prosecuting agency to seek the
remedies provided by this chapter unless the underlying offense
occurred after the effective date of this chapter and the prior act
occurred within 10 years, excluding any period of imprisonment, of
the commission of the underlying offense. A prior act may not be
used by a prosecuting agency to seek remedies provided by this
chapter if a prosecution for that act resulted in an acquittal.
(c) "Prosecuting agency" means the Attorney General or the
district attorney of any county.
(d) "Organized crime" means crime that is of a conspiratorial
nature and that is either of an organized nature and seeks to supply
illegal goods and services such as narcotics, prostitution, loan
sharking, gambling, and pornography, or that, through planning and
coordination of individual efforts, seeks to conduct the illegal
activities of arson for profit, hijacking, insurance fraud,
smuggling, operating vehicle theft rings, or systematically
encumbering the assets of a business for the purpose of defrauding
creditors. "Organized crime" also means crime committed by a
criminal street gang, as defined in subdivision (f) of Section
186.22.
(e) "Underlying offense" means an offense enumerated in
subdivision (a) for which the defendant is being prosecuted.
SEC. 94. Section 269 of the Penal Code, as added by Chapter 878 of
the Statutes of 1994, is repealed.
SEC. 95. Section 273.1 of the Penal Code is amended to read:
273.1. (a) Any treatment program to which a child abuser
convicted of a violation of Section 273a or 273d is referred as a
condition of probation shall meet the following criteria:
(1) Substantial expertise and experience in the treatment of
victims of child abuse and the families in which abuse and violence
have occurred.
(2) Staff providing direct service are therapists licensed to
practice in this state or are under the direct supervision of a
therapist licensed to practice in this state.
(3) Utilization of a treatment regimen designed to specifically
address the offense, including methods of preventing and breaking the
cycle of family violence, anger management, and parenting education
that focuses, among other things, on means of identifying the
developmental and emotional needs of the child.
(4) Utilization of group and individual therapy and counseling,
with groups no larger than 12 persons.
(5) Capability of identifying substance abuse and either treating
the abuse or referring the offender to a substance abuse program, to
the extent that the court has not already done so.
(6) Entry into a written agreement with the defendant that
includes an outline of the components of the program, the attendance
requirements, a requirement to attend group session free of chemical
influence, and a statement that the defendant may be removed from the
program if it is determined that the defendant is not benefiting
from the program or is disruptive to the program.
(7) The program may include, on the recommendation of the
treatment counselor, family counseling. However, no child victim
shall be compelled or required to participate in the program,
including family counseling, and no program may condition a defendant'
s enrollment on participation by the child victim. The treatment
counselor shall privately advise the child victim that his or her
participation is voluntary.
(b) If the program finds that the defendant is unsuitable, the
program shall immediately contact the probation department or the
court. The probation department or court shall either recalendar the
case for hearing or refer the defendant to an appropriate
alternative child abuser's treatment counseling program.
(c) Upon request by the child abuser's treatment counseling
program, the court shall provide the defendant's arrest report, prior
incidents of violence, and treatment history to the program.
(d) The child abuser's treatment counseling program shall provide
the probation department and the court with periodic progress reports
at least every three months that include attendance, fee payment
history, and program compliance. The program shall submit a final
evaluation that includes the program's evaluation of the defendant's
progress, and recommendation for either successful or unsuccessful
termination of the program.
(e) The defendant shall pay for the full costs of the treatment
program, including any drug testing. However, the court may waive
any portion or all of that financial responsibility upon a finding of
an inability to pay. Upon the request of the defendant, the court
shall hold a hearing to determine the defendant's ability to pay for
the treatment program. At the hearing the court may consider all
relevant information, but shall consider the impact of the costs of
the treatment program on the defendant's ability to provide food,
clothing, and shelter for the child injured by a violation of Section
273a or 273d. If the court finds that the defendant is unable to
pay for any portion of the costs of the treatment program, its
reasons for that finding shall be stated on the record. In the event
of this finding, the program fees or a portion thereof shall be
waived.
(f) All programs accepting referrals of child abusers pursuant to
this section shall accept offenders for whom fees have been partially
or fully waived. However, the court shall require each qualifying
program to serve no more than its proportionate share of those
offenders who have been granted fee waivers, and require all
qualifying programs to share equally in the cost of serving those
offenders with fee waivers.
SEC. 96. Section 290 of the Penal Code is amended to read:
290. (a) (1) Every person described in paragraph (2), for the
rest of his or her life while residing in California, shall be
required to register with the chief of police of the city in which he
or she is domiciled, or the sheriff of the county if he or she is
domiciled in an unincorporated area, and, additionally, with the
chief of police of a campus of the University of California or the
California State University if he or she is domiciled 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 is domiciled for that length of time. The person shall be
required annually thereafter, within five working days of his or her
birthday, to update his or her registration with the entities
described in this paragraph, including verifying his or her name and
address on a form as may be required by the Department of Justice.
(2) The following persons shall be required to register pursuant
to paragraph (1):
(A) Any person who, since July 1, 1944, has been or is hereafter
convicted in any court in this state or in any federal or military
court of a violation of subdivision (b) of Section 207, kidnapping,
as punishable pursuant to subdivision (d) of Section 208, 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, 266j, 267, 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 (d)
of Section 647, subdivision 1 or 2 of Section 314, any offense
involving lewd and 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.
(D) Any person who, since July 1, 1944, has been, or is hereafter
convicted in any other court, including any federal or military
court, of any offense that, if committed or attempted in this state,
would have been punishable as one or more of the offenses described
in subparagraph (A).
(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.
(b) Any person who, after August 1, 1950, 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.
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, after August 1, 1950, is convicted in this
state of the commission or attempted commission of any of the
offenses specified in subdivision (a) and 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 court in which the person has been convicted, and the court 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
court 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 court 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 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, on or after January 1, 1995, 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 that, if committed or attempted
in this state, would have been punishable as one or more of the
offenses described in paragraphs (3) and (4), shall be subject to
registration under the procedures of this section.
(3) The following offenses apply for the purpose of this
subdivision:
(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 Section 288 or 288.5, paragraph (1) of
subdivision (b) of, or subdivision (c) or (d) of, Section 286,
paragraph (1) of subdivision (b) of, or subdivision (c) or (d) of,
Section 288a, paragraph (2) of subdivision (a) of Section 261,
subdivision (a) of Section 289, subdivision (b) of Section 207, or
kidnapping, as punishable pursuant to subdivision (d) of Section 208.
(C) Any offense under Section 264.1 involving rape in concert with
force or fear of bodily injury or penetration by any foreign object
in concert with force or fear of bodily injury.
(4) Any person who 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 court pursuant to Section
602 of the Welfare and Institutions Code because of the commission
or attempted commission of the offense set forth in Section 647.6,
occurring on or after January 1, 1988, shall be subject to
registration under the procedures of this section.
(5) Prior to discharge or parole from the Department of the Youth
Authority, any person who is subject to registration 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.
(6) 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) 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 or registered
in the name of the person.
(2) Within three days thereafter, 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) If any person who is required to register pursuant to this
section changes his or her name or residence address, the person
shall inform, in writing within five working days, the law
enforcement agency or agencies with whom he or she last registered of
the new name or address. The law enforcement agency or agencies
shall, within three days after receipt of this information, forward
it 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.
(g) (1) Any person who is required to register under this section
based on a misdemeanor conviction who willfully violates this section
is guilty of a misdemeanor punishable by imprisonment in a county
jail not exceeding one year.
(2) Notwithstanding paragraph (1), any person who has been
convicted of assault with intent to commit rape, oral copulation, or
sodomy under Section 220, any violation of Section 264.1 or 289 under
Section 220, any violation of Section 261, any offense defined in
paragraph (1) of subdivision (a) of Section 262 involving the use of
force or violence for which the person is sentenced to state prison,
any violation of Section 264.1, 286, 288, 288a, 288.5, or 289,
subdivision (b) of Section 207, or kidnapping, as punishable pursuant
to subdivision (d) of Section 208, and who is required to register
under this section who willfully violates this section is guilty of a
felony punishable by imprisonment in the state prison for 16 months,
or two or three years.
(3) Any person required to register under this section based on a
felony conviction who willfully violates this section or who has a
prior conviction for the offense of failing to register under this
section and who subsequently and willfully commits that offense is,
upon each subsequent conviction, guilty of a felony and shall be
punished by imprisonment in the state prison for 16 months or two or
three years.
A person punished pursuant to this paragraph or paragraph (2)
shall be sentenced to serve a term of not less than 90 days nor more
than one year in a county jail. In no event does the court have the
power to absolve a person who willfully violates this section from
the obligation of spending at least 90 days of confinement in a
county jail and of completing probation of at least one year.
If the person has been sentenced to a term of imprisonment in the
state prison, the penalty described in this paragraph shall apply
whether or not the person has been released on parole or has been
discharged from parole.
(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.
(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 does 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 that, 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, 1985, is required to
register under this section shall be notified whenever he or she
next reregisters of the reduction of the registration period from 30
to 14 days. This notice shall be provided in writing by the
registering agency or agencies. Failure to receive this notification
is a defense against the penalties prescribed by subdivision (g) if
the person did register within 30 days.
(2) 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
is a defense against the penalties prescribed by subdivision (g) if
the person did register within 14 days.
(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 must 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) 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
on 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 elsewhere in this
section, a law enforcement agency 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 for which registration is required under paragraph (2) of
subdivision (a) and also meets one 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.
(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, 203, 206, 207, 236, provided
that the offense is a felony, subdivision (a) of Section 273a, 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, 314, 459, provided the offense is
of the first degree, 597, 646.9, subdivision (d), (h), or (i) of
Section 647, 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 that, 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) "Law enforcement agency" means any of the following:
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 state university, state college, or 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 law enforcement agency 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 law enforcement agency 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,
information 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 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
subdivision (m) shall maintain records of the offender and the means
and dates of dissemination for a minimum of five years.
(p) Law enforcement agencies, employees of law enforcement
agencies, and state officials shall be immune from liability for good
faith conduct under this section.
(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 apply 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.
SEC. 97. 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
subdivision (b) of Section 207; kidnapping, as punishable pursuant to
subdivision (d) of Section 208; 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
267; paragraph (2) of subdivision (b), subdivision (c), (d), (f),
(g), (i), (j), or (k) of Section 286; Section 288; 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. This requirement shall not be
applied to a person whose duty to register has been terminated
pursuant to paragraphs (6) and (7) 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, 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 to 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
(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, the municipal police department of each city 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 department of each city 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, shall sign a register, which the law enforcement agency is
required to maintain, of persons applying to view the CD-ROM or other
electronic medium, 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 that the purpose
of the release of information is to allow members of the public to
protect themselves and their children from sex offenders, and that 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 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" 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 the act adding this section, 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" 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 the
following information:
(i) Notice that the caller's telephone number will be recorded.
(ii) The charges for use of the "900" 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" 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 shall be used only 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, Section 290, or any
other statute expressly authorizing that 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 the county jail not
to exceed six months or by a fine not exceeding one thousand dollars
($1,000), or by both. 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 or court case, or as
otherwise authorized by subdivision (n) of Section 290.
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 both.
(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, and Section 432.7 of the
Labor Code.
(2) Except as authorized under paragraph (1) or any other
provision of law, use of any of the following information 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" 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 are 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 shall not be deemed to 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) The "900" telephone number program authorized by this section
shall terminate operation on January 1, 1998.
(j) Law enforcement agencies, employees of law enforcement
agencies, and state officials are immune from liability for good
faith conduct under this section.
(k) 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.
(l) The registration and public notification provisions of this
section apply 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.
(m) This section shall become operative on July 1, 1995, and shall
become inoperative on January 1, 1999, and as of that date is
repealed unless a later enacted statute, which becomes effective on
or before January 1, 1999, deletes or extends the dates on which it
becomes inoperative and is repealed.
SEC. 98. Section 311 of the Penal Code is amended to read:
311. As used in this chapter, the following definitions apply:
(a) "Obscene matter" means matter, taken as a whole, that to the
average person, applying contemporary statewide standards, appeals to
the prurient interest, that, taken as a whole, depicts or describes
sexual conduct in a patently offensive way, and that, taken as a
whole, lacks serious literary, artistic, political, or scientific
value.
(1) If it appears from the nature of the matter or the
circumstances of its dissemination, distribution, or exhibition that
it is designed for clearly defined deviant sexual groups, the appeal
of the matter shall be judged with reference to its intended
recipient group.
(2) In prosecutions under this chapter, if circumstances of
production, presentation, sale, dissemination, distribution, or
publicity indicate that matter is being commercially exploited by the
defendant for the sake of its prurient appeal, this evidence is
probative with respect to the nature of the matter and may justify
the conclusion that the matter lacks serious literary, artistic,
political, or scientific value.
(3) In determining whether the matter taken as a whole lacks
serious literary, artistic, political, or scientific value in
description or representation of those matters, the fact that the
defendant knew that the matter depicts persons under the age of 16
years engaged in sexual conduct, as defined in subdivision (c) of
Section 311.4, is a factor that may be considered in making that
determination.
(b) "Matter" means any book, magazine, newspaper, or other printed
or written material, or any picture, drawing, photograph, motion
picture, or other pictorial representation, or any statue or other
figure, or any recording, transcription, or mechanical, chemical, or
electrical reproduction, or any other article, equipment, machine, or
material. "Matter" also means live or recorded telephone messages
if transmitted, disseminated, or distributed as part of a commercial
transaction.
(c) "Person" means any individual, partnership, firm, association,
corporation, limited liability company, or other legal entity.
(d) "Distribute" means transfer possession of, whether with or
without consideration.
(e) "Knowingly" means being aware of the character of the matter
or live conduct.
(f) "Exhibit" means show.
(g) "Obscene live conduct" means any physical human body activity,
whether performed or engaged in alone or with other persons,
including but not limited to singing, speaking, dancing, acting,
simulating, or pantomiming, taken as a whole, that to the average
person, applying contemporary statewide standards, appeals to the
prurient interest and is conduct that, taken as a whole, depicts or
describes sexual conduct in a patently offensive way and that, taken
as a whole, lacks serious literary, artistic, political, or
scientific value.
(1) If it appears from the nature of the conduct or the
circumstances of its production, presentation, or exhibition that it
is designed for clearly defined deviant sexual groups, the appeal of
the conduct shall be judged with reference to its intended recipient
group.
(2) In prosecutions under this chapter, if circumstances of
production, presentation, advertising, or exhibition indicate that
live conduct is being commercially exploited by the defendant for the
sake of its prurient appeal, that evidence is probative with respect
to the nature of the conduct and may justify the conclusion that the
conduct lacks serious literary, artistic, political, or scientific
value.
(3) In determining whether the live conduct taken as a whole lacks
serious literary, artistic, political, or scientific value in
description or representation of those matters, the fact that the
defendant knew that the live conduct depicts persons under the age of
16 years engaged in sexual conduct, as defined in subdivision (c) of
Section 311.4, is a factor that may be considered in making that
determination.
(h) The Legislature expresses its approval of the holding of
People v. Cantrell, 7 Cal. App. 4th 523, that, for the purposes of
this chapter, matter that "depicts a person under the age of 18 years
personally engaging in or personally simulating sexual conduct" is
limited to visual works that depict that conduct.
SEC. 99. Section 312.6 of the Penal Code, as added by Chapter 1079
of the Statutes of 1996, is repealed.
SEC. 100. Section 312.7 of the Penal Code, as added by Chapter
1079 of the Statutes of 1996, is repealed.
SEC. 101. Section 350 of the Penal Code is amended to read:
350. (a) Any person who, without the consent of the registrant,
willfully manufactures, intentionally sells, or knowingly possesses
for sale at the point of sale any counterfeit of a mark registered
with the Secretary of State or registered on the Principal Register
of the United States Patent and Trademark Office, shall upon
conviction, be punishable as follows:
(1) Where the offense involves less than 1,000 of the articles
described in this subdivision, and if the person is an individual, he
or she shall be punished by a fine of not more than five thousand
dollars ($5,000), by imprisonment in a county jail for not more than
one year, or by both that fine and imprisonment; or, if the person is
a corporation, by a fine of not more than one hundred thousand
dollars ($100,000).
(2) Where the offense involves 1,000 or more of the articles
described in this subdivision, and if the person is an individual, he
or she shall be punished by imprisonment in a county jail not to
exceed one year, or in the state prison for 16 months, or two or
three years, by a fine not to exceed two hundred fifty thousand
dollars ($250,000), or by both that imprisonment and fine; or, if the
person is a corporation, by a fine not to exceed five hundred
thousand dollars ($500,000).
(b) Any person who has been convicted of a violation of either
paragraph (1) or (2) of subdivision (a) shall, upon a subsequent
conviction of paragraph (1) of subdivision (a), if the person is an
individual, be punished by a fine of not more than fifty thousand
dollars ($50,000), by imprisonment in a county jail for not more than
one year, or in the state prison for 16 months, or two or three
years, or by both that fine and imprisonment; or, if the person is a
corporation, by a fine of not more than two hundred thousand dollars
($200,000).
(c) Any person who has been convicted of
a violation of subdivision (a) and who, by virtue of the conduct that
was the basis of the conviction, has directly and foreseeably caused
death or great bodily injury to another through reliance on the
counterfeited item for its intended purpose shall, if the person is
an individual, be punished by a fine of not more than fifty thousand
dollars ($50,000), by imprisonment in the state prison for two,
three, or four years, or by both that fine and imprisonment; or, if
that person is a corporation, by a fine of not more than two hundred
thousand dollars ($200,000).
(d) Any person who knowingly possesses for sale, at a location
other than the point of sale, any article described in subdivision
(a) is guilty of a public offense.
(1) A violation of this subdivision involving less than 100 of
these articles shall be punishable by imprisonment in a county jail
for not more than six months, by a fine not to exceed five thousand
dollars ($5,000), or by both that imprisonment and fine. Any person
who previously has been convicted of a violation of any paragraph of
this subdivision shall, upon a new conviction of violating this
subdivision arising from conduct described in this paragraph, be
punished by imprisonment in a county jail not to exceed one year, or
by a fine not to exceed ten thousand dollars ($10,000), or by both
that imprisonment and fine. Any person who has been convicted of a
violation of any paragraph of this subdivision on two or more
previous occasions shall, upon a new conviction of violating this
paragraph, be punished by imprisonment in a county jail not to exceed
one year, or in the state prison for 16 months, or two or three
years, by a fine not to exceed twenty-five thousand dollars
($25,000), or by both that imprisonment and fine.
(2) A violation of this subdivision involving 100 or more of these
articles, but less than 1,000, shall be punishable by imprisonment
in a county jail not to exceed one year, by a fine not to exceed ten
thousand dollars ($10,000), or by both that imprisonment and fine.
Any person who previously has been convicted of a violation of any
paragraph of this subdivision on one or more occasions shall, upon a
new conviction of violating this subdivision arising from conduct
described in this paragraph, be punished by imprisonment in a county
jail not to exceed one year, or in the state prison for 16 months, or
two or three years, by a fine not to exceed twenty-five thousand
dollars ($25,000), or by both that imprisonment and fine.
(3) A violation of this subdivision involving 1,000 or more of
these articles shall be punishable by imprisonment in a county jail
not to exceed one year, or in the state prison for 16 months, or two
or three years, by a fine not to exceed one hundred thousand dollars
($100,000), or by both that imprisonment and fine.
(e) In any action brought under this section resulting in a
conviction or a plea of nolo contendere, the court shall order the
forfeiture and destruction of all of those marks and of all goods,
articles, or other matter bearing the marks, and the forfeiture and
destruction or other disposition of all means of making the marks,
and any and all electrical, mechanical, or other devices for
manufacturing, reproducing, transporting, or assembling these marks,
that were used in connection with, or were part of, any violation of
this section. However, no vehicle shall be forfeited under this
section that may be lawfully driven on the highway with a class 3 or
4 license, as prescribed in Section 12804 of the Vehicle Code, and
that is any of the following:
(1) A community property asset of a person other than the
defendant.
(2) The sole class 3 or 4 vehicle available to the immediate
family of that person or of the defendant.
(3) Reasonably necessary to be retained by the defendant for the
purpose of lawfully earning a living, or for any other reasonable and
lawful purpose.
(f) As used in this section, the following definitions shall
apply:
(1) When counterfeited but unassembled components of computer
software packages are recovered, including, but not limited to,
counterfeited computer diskettes, instruction manuals, or licensing
envelopes, the number of "articles" shall be equivalent to the number
of completed computer software packages that could have been made
from those components.
(2) "At the point of sale" includes the entire building,
structure, container, or vehicle in which the sale or attempted sale
of an article has occurred.
(3) "Counterfeit mark" means a spurious mark that is identical
with, or substantially indistinguishable from, a registered mark and
is used on or in connection with the same type of goods or services
for which the genuine mark is registered.
(4) "Knowingly possess" means that the person possessing an
article actually knew that the article was not genuine.
(5) "Sale" includes resale.
(6) "Value" has the following meanings:
(A) When counterfeit items of computer software are manufactured
or possessed for sale, the "value" of those items shall be equivalent
to the retail price or fair market price of the true items that are
counterfeited.
(B) When counterfeited but unassembled components of computer
software packages are recovered, including, but not limited to,
counterfeited computer diskettes, instruction manuals, or licensing
envelopes, the "value" of those components of computer software
packages shall be equivalent to the retail price or fair market price
of the number of completed computer software packages that could
have been made from those components.
(g) This section shall not be enforced against any party who has
adopted and lawfully used the same or confusingly similar mark in the
rendition of like services or the manufacture or sale of like goods
in this state from a date prior to the effective date of registration
of the service mark or trademark pursuant to Chapter 2 (commencing
with Section 14200) of Division 6 of the Business and Professions
Code.
(h) An owner, officer, employee, or agent who provides, rents,
leases, licenses, or sells real property upon which a violation of
subdivision (a) or (d) occurs shall not be subject to a criminal
penalty pursuant to this section, unless he or she sells, or
possesses for sale, articles bearing a counterfeit mark in violation
of this section. This subdivision shall not be construed to abrogate
or limit any civil rights or remedies for a trademark violation.
SEC. 102. Section 667.61 of the Penal Code, as added by Chapter
447 of the Statutes of 1994, is repealed.
SEC. 103. Section 831.5 of the Penal Code is amended to read:
831.5. (a) As used in this section, a custodial officer is a
public officer, not a peace officer, employed by a law enforcement
agency of San Diego County, Fresno County, Kern County, Stanislaus
County, Riverside County, or a county having a population of 425,000
or less who has the authority and responsibility for maintaining
custody of prisoners and performs tasks related to the operation of a
local detention facility used for the detention of persons usually
pending arraignment or upon court order either for their own
safekeeping or for the specific purpose of serving a sentence
therein. Custodial officers of a county shall be employees of, and
under the authority of, the sheriff, except in counties in which the
sheriff, as of July 1, 1993, is not in charge of and the sole and
exclusive authority to keep the county jail and the prisoners in it.
A custodial officer includes a person designated as a correctional
officer, jailer, or other similar title. The duties of a custodial
officer may include the serving of warrants, court orders, writs, and
subpoenas in the detention facility or under circumstances arising
directly out of maintaining custody of prisoners and related tasks.
(b) A custodial officer has no right to carry or possess firearms
in the performance of his or her prescribed duties, except, under the
direction of the sheriff or chief of police, while engaged in
transporting prisoners; guarding hospitalized prisoners; or
suppressing jail riots, lynchings, escapes, or rescues in or about a
detention facility falling under the care and custody of the sheriff
or chief of police.
(c) Each person described in this section as a custodial officer
shall, within 90 days following the date of the initial assignment to
that position, satisfactorily complete the training course specified
in Section 832. In addition, each person designated as a custodial
officer shall, within one year following the date of the initial
assignment as a custodial officer, have satisfactorily met the
minimum selection and training standards prescribed by the Board of
Corrections pursuant to Section 6035. Persons designated as
custodial officers, before the expiration of the 90-day and one-year
periods described in this subdivision, who have not yet completed the
required training, shall not carry or possess firearms in the
performance of their prescribed duties, but may perform the duties of
a custodial officer only while under the direct supervision of a
peace officer, as described in Section 830.1, who has completed the
training prescribed by the Commission on Peace Officer Standards and
Training, or a custodial officer who has completed the training
required in this section.
(d) At any time 20 or more custodial officers are on duty, there
shall be at least one peace officer, as described in Section 830.1,
on duty at the same time to supervise the performance of the
custodial officers.
(e) This section shall not be construed to confer any authority
upon any custodial officer except while on duty.
(f) A custodial officer may use reasonable force in establishing
and maintaining custody of persons delivered to him or her by a law
enforcement officer; may make arrests for misdemeanors and felonies
within the local detention facility pursuant to a duly issued
warrant; may make warrantless arrests pursuant to Section 836.5 only
during the duration of his or her job; may release without further
criminal process persons arrested for intoxication; and may release
misdemeanants on citation to appear in lieu of or after booking.
SEC. 104. Section 1295 of the Penal Code is amended to read:
1295. (a) The defendant, or any other person, at any time after
an order admitting defendant to bail or after the arrest and booking
of a defendant for having committed a misdemeanor, instead of giving
bail may deposit, with the clerk of the court in which the defendant
is held to answer or notified to appear for arraignment, the sum
mentioned in the order or, if no order, in the schedule of bail
previously fixed by the judges of the court, and, upon delivering to
the officer in whose custody defendant is a certificate of the
deposit, the defendant must be discharged from custody.
(b) Where more than one deposit is made with respect to any charge
in any accusatory pleading based upon the acts supporting the
original charge as a result of which an earlier deposit was made, the
defendant shall receive credit in the amount of any earlier deposit.
(c) The clerk of the court shall not accept a general assistance
check for this deposit or any part thereof.
SEC. 105. Section 1529 of the Penal Code is amended to read:
1529. The warrant shall be in substantially the following form:
County of ____.
The people of the State of California to any sheriff, marshal, or
police officer in the County of ____:
Proof, by affidavit, having been this day made before me by
(naming every person whose affidavit has been taken), that (stating
the grounds of the application, according to Section 1524, or, if the
affidavit be not positive, that there is probable cause for
believing that ____ stating the ground of the application in the same
manner), you are therefore commanded, in the daytime (or at any time
of the day or night, as the case may be, according to Section 1533),
to make search on the person of C.D. (or in the house situated ____,
describing it, or any other place to be searched, with reasonable
particularity, as the case may be) for the following property, thing,
things, or person: (describing the property, thing, things, or
person with reasonable particularity); and, in the case of a thing or
things or personal property, if you find the same or any part
thereof, to bring the thing or things or personal property forthwith
before me (or this court) at (stating the place).
Given under my hand, and dated this ____ day of ____, A.D. (year).
E.F., Judge of the (applicable) Court.
SEC. 106. Section 4415 of the Penal Code is amended to read:
4415. Moneys in the fund shall be available for expenditure in
accordance with this title by the Board of Corrections. Prior to the
disbursement of any money in the fund, the board and the appropriate
subcommittees of the Senate Committee on Criminal Procedure and of
the Assembly Committee on Public Safety shall reexamine the factors
specified in subdivisions (a) and (b) to determine whether they are
still suitable and applicable to the distribution of the proceeds of
the bonds authorized by this title. Moneys in the fund shall be
available for expenditure for the following purposes:
(a) For the construction, reconstruction, remodeling, and
replacement of county jail facilities, and the performance of
deferred maintenance activities on the facilities pursuant to rules
and regulations adopted by the Board of Corrections, in accordance
with Section 6029.1. No expenditure shall be made unless county
matching funds of 25 percent are provided.
(b) In performing the duties set forth in subdivision (a), the
Board of Corrections shall consider all of the following:
(1) The extent to which the county requesting aid has exhausted
all other available means of raising the requested funds for the
capital improvements and the extent to which the funds from the
County Jail Capital Expenditure Fund will be utilized to attract
other sources of capital financing for county jail facilities.
(2) The extent to which the capital improvements are necessary to
the life or safety of the persons confined or employed in the
facility or the health and sanitary conditions of the facility.
(3) The extent to which the county has utilized reasonable
alternatives to pre-conviction and post-conviction incarceration,
including, but not limited to, programs to facilitate release upon
one's own recognizance where appropriate to individuals pending
trial, sentencing alternatives to custody, and civil commitment or
diversion programs consistent with public safety for those with drug-
or alcohol-related problems or mental or developmental disabilities.
SEC. 107. Section 7500 of the Penal Code is amended to read:
7500. The Legislature finds and declares all of the following:
(a) The public peace, health, and safety is endangered by the
spread of the human immunodeficiency virus (HIV) and acquired immune
deficiency syndrome (AIDS) within state and local correctional
institutions.
(b) The spread of AIDS within prison and jail populations presents
a grave danger to inmates within those populations, law enforcement
personnel, and other persons in contact with a prisoner infected with
the AIDS virus, both during and after the prisoner's confinement.
Law enforcement personnel and prisoners are particularly vulnerable
to this danger, due to the high number of assaults and other violent
acts that occur within correctional institutions.
(c) AIDS has the frightening potential of spreading more rapidly
within the closed society of correctional institutions than outside
these institutions. This major public health problem is compounded
by the further potential of rapid spread of communicable disease
outside correctional institutions, through contacts of an infected
prisoner who is not treated and monitored upon his or her release.
(d) New diseases of epidemic proportions such as AIDS may suddenly
and tragically infect large numbers of people. This title primarily
addresses a current problem of this nature, the spread of AIDS among
those in correctional institutions and among the people of
California.
(e) HIV and AIDS pose a major threat to the public health and
safety of those governmental employees and others whose
responsibilities bring them into most direct contact with persons
afflicted with those illnesses, and the protection of the health and
safety of these personnel is of equal importance to the people of the
State of California as the protection of the health of those
afflicted with the diseases who are held in custodial situations.
(f) Testing described in this title of individuals housed within
state and local correctional facilities for evidence of infection by
HIV or AIDS would help to provide a level of information necessary
for effective disease control within these institutions and would
help to preserve the health of public employees, inmates, and persons
in custody, as well as that of the public at large. This testing is
not intended to be, and shall not be construed as, a prototypical
method of disease control for the public at large.
SEC. 108. Section 7501 of the Penal Code is amended to read:
7501. In order to address the public health crisis described in
Section 7500, it is the intent of the Legislature to do all of the
following:
(a) Establish a procedure through which custodial and law
enforcement personnel are required to report certain situations and
may request and be granted a confidential HIV test of an inmate
convicted of a crime, or a person arrested or taken into custody, if
the custodial or law enforcement officer has reason to believe that
he or she has come into contact with the blood or semen of an inmate
or in any other manner has come into contact with the inmate in a way
that could result in HIV infection, based on the latest
determinations and conclusions by the federal Centers for Disease
Control and the State Department of Health Services on means for the
transmission of AIDS, and if appropriate medical authorities, as
provided in this title, reasonably believe there is good medical
reason for the test.
(b) Permit inmates to file similar requests stemming from contacts
with other inmates.
(c) Require that probation and parole officers be notified when an
inmate being released from incarceration is infected with AIDS, and
permit these officers to notify certain persons who will come into
contact with the parolee or probationer, if authorized by law.
(d) Authorize prison medical staff authorities to require tests of
a jail or prison inmate under certain circumstances, if they
reasonably believe, based upon the existence of supporting evidence,
that the inmate may be suffering from HIV infection or AIDS and is a
danger to other inmates or staff.
(e) Require supervisory and medical personnel of correctional
institutions to which this title applies to notify staff if they are
coming into close and direct contact with persons in custody who have
tested positive or who have AIDS, and provide appropriate counseling
and safety equipment.
SEC. 109. Section 7515 of the Penal Code is amended to read:
7515. (a) A decision of the chief medical officer made pursuant
to Section 7511, 7512, or 7516 may be appealed, within three calendar
days of receipt of the decision, to a three-person panel, either by
the person required to be tested, his or her parent or guardian when
the subject is a minor, the law enforcement employee filing a report
pursuant to either Section 7510 or 7516, or the person requesting
testing pursuant to Section 7512, whichever is applicable, or the
chief medical officer, upon his or her own motion. If no request for
appeal is filed under this subdivision, the chief medical officer's
decision shall be final.
(b) Depending upon which entity has jurisdiction over the person
requesting or appealing a test, the Department of Corrections, the
Department of the Youth Authority, the county, the city, or the
county and city shall convene the appeal panel and shall ensure that
the appeal is heard within 30 calendar days from the date an appeal
request is filed pursuant to subdivision (a).
(c) A panel required pursuant to subdivision (a) shall consist of
three members, as follows:
(1) The chief medical officer making the original decision.
(2) A physician and surgeon who has knowledge in the diagnosis,
treatment, and transmission of HIV, selected by the Department of
Corrections, the Department of the Youth Authority, the county, the
city, or the county and city. The physician and surgeon appointed
pursuant to this paragraph shall preside at the hearing and serve as
chairperson.
(3) A physician and surgeon not on the staff of, or under contract
with, a state, county, city, or county and city correctional
institution or with an employer of a law enforcement employee as
defined in subdivision (b) of Section 7502, and who has knowledge of
the diagnosis, treatment, and transmission of HIV. The physician and
surgeon appointed pursuant to this paragraph shall be selected by
the State Department of Health Services from a list of persons to be
compiled by that department. The State Department of Health Services
shall adopt standards for selecting persons for the list required by
this paragraph, as well as for their reimbursement, and shall, to
the extent possible, utilize its normal process for selecting
consultants in compiling this list.
The Legislature finds and declares that the presence of a
physician and surgeon on the panel who is selected by the State
Department of Health Services enhances the objectivity of the panel,
and it is the intent of the Legislature that the State Department of
Health Services make every attempt to comply with this subdivision.
(d) The Department of Corrections, the county, the city, or the
county and city shall notify the Office of AIDS in the State
Department of Health Services when a panel must be convened under
subdivision (a). Within 10 calendar days of the notification, a
physician and surgeon appointed under paragraph (3) of subdivision
(c) shall reach agreement with the Department of Corrections, the
county, the city, or the county and city on a date for the hearing
that complies with subdivision (b).
(e) If the Office of AIDS in the State Department of Health
Services fails to comply with subdivision (d) or the physician and
surgeon appointed under paragraph (3) of subdivision (c) fails to
attend the scheduled hearing, the Department of Corrections, the
county, the city, or the county and city shall appoint a physician or
surgeon who has knowledge of the diagnosis, treatment, and
transmission of HIV to serve on the appeals panel to replace the
physician and surgeon required under paragraph (3) of subdivision
(c). The Department of Corrections, the county, the city, or the
county and city shall have standards for selecting persons under this
subdivision and for their reimbursement.
The Department of Corrections, the Department of the Youth
Authority, the county, the city, or the county and city shall,
whenever feasible, create, and utilize ongoing panels to hear appeals
under this section. The membership of the panel shall meet the
requirements of paragraphs (1), (2), and (3) of subdivision (c).
No panel shall be created pursuant to this paragraph by a county,
city, or county and city correctional institution except with the
prior approval of the local health officer.
(f) A hearing conducted pursuant to this section shall be closed,
except that each of the following persons shall have the right to
attend the hearing, speak on the issues presented at the hearing, and
call witnesses to testify at the hearing:
(1) The chief medical officer, who may also bring staff essential
to the hearing, as well as the other two members of the panel.
(2) The subject of the chief medical officer's decision, except
that a subject who is a minor may attend only with the consent of his
or her parent or guardian and, if the subject is a minor, his or her
parent or guardian.
(3) The law enforcement employee filing the report pursuant to
Section 7510, or the person requesting HIV testing pursuant to
Section 7512, whichever is applicable and, if the person is a minor,
his or her parent or guardian.
(g) The subject of the test, or the person requesting the test
pursuant to Section 7512, or who filed the report pursuant to Section
7510, whichever is applicable, may appoint a representative to
attend the hearing in order to assist him or her.
(h) When a hearing is sought pursuant to this section, the
decision shall be rendered within 10 days of the date upon which the
appeal is filed pursuant to subdivision (a). A unanimous vote of the
panel shall be necessary in order to require that the subject of the
hearing undergo HIV testing.
The criteria specified in Section 7511 for use by the chief
medical officer shall also be utilized by the panel in making its
decision.
The decision shall be in writing, stating reasons for the
decision, and shall be signed by the members. A copy shall be
provided by the chief medical officer to the person requesting the
test, or filing the report, whichever is applicable, to the subject
of the test, and, when the subject is in a correctional institution,
to the superintendent of the institution, except that, when the
subject of the test or the person upon whose behalf the request for
the test was made is a minor, copies shall also be provided to the
parent or guardian of the person, unless the parent or guardian
cannot be located.
SEC. 110. Section 11106 of the Penal Code is amended to read:
11106. (a) In order to assist in the investigation of crime, the
arrest and prosecution of criminals, and the recovery of lost,
stolen, or found property, the Attorney General shall keep and
properly file a complete record of all copies of fingerprints, copies
of applications for licenses to carry firearms issued pursuant to
Section 12050, information reported to the Department of Justice
pursuant to Section 12053, dealers' records of sales of firearms,
reports provided pursuant to Section 12078, forms provided pursuant
to Section 12084, reports provided pursuant to Section 12071 that are
not dealers' records of sales of firearms, and reports of stolen,
lost, found, pledged, or pawned property in any city or county of
this state, and shall, upon proper application therefor, furnish to
the officers mentioned in Section 11105 hard copy printouts of those
records as photographic, photostatic, and nonerasable optically
stored
reproductions.
(b) (1) Notwithstanding subdivision (a), the Attorney General
shall not retain or compile any information from reports filed
pursuant to subdivision (a) of Section 12078 for firearms that are
not pistols, revolvers, or other firearms capable of being concealed
upon the person, from forms submitted pursuant to Section 12084 for
firearms that are not pistols, revolvers, or other firearms capable
of being concealed upon the person, or from dealers' records of sales
for firearms that are not pistols, revolvers, or other firearms
capable of being concealed upon the person. All copies of the forms
submitted, or any information received in electronic form, pursuant
to Section 12084 for firearms that are not pistols, revolvers, or
other firearms capable of being concealed upon the person, or of the
dealers' records of sales for firearms that are not pistols,
revolvers, or other firearms capable of being concealed upon the
person shall be destroyed within five days of the clearance by the
Attorney General, unless the purchaser or transferor is ineligible to
take possession of the firearm. All copies of the reports filed, or
any information received in electronic form, pursuant to subdivision
(a) of Section 12078 for firearms that are not pistols, revolvers,
or other firearms capable of being concealed upon the person shall be
destroyed within five days of the receipt by the Attorney General,
unless retention is necessary for use in a criminal prosecution.
(2) A peace officer, the Attorney General, a Department of Justice
employee designated by the Attorney General, or any authorized local
law enforcement employee shall not retain or compile any information
from a firearms transaction record, as defined in paragraph (5) of
subdivision (c) of Section 12071, for firearms that are not pistols,
revolvers, or other firearms capable of being concealed upon the
person unless retention or compilation is necessary for use in a
criminal prosecution or in a proceeding to revoke a license issued
pursuant to Section 12071.
(3) A violation of this subdivision is a misdemeanor.
(c) (1) The Attorney General shall permanently keep and properly
file and maintain all information reported to the Department of
Justice pursuant to Sections 12071, 12072, 12078, 12082, and 12084 or
any other law, as to pistols, revolvers, or other firearms capable
of being concealed upon the person and maintain a registry thereof.
(2) The registry shall consist of all of the following:
(A) The name, address, identification of, place of birth (state or
country), complete telephone number, occupation, sex, description,
and all legal names and aliases ever used by the owner or person
being loaned the particular pistol, revolver, or other firearm
capable of being concealed upon the person as listed on the
information provided to the department on the Dealers' Record of
Sale, the Law Enforcement Firearms Transfer (LEFT), as defined in
Section 12084, or reports made to the department pursuant to Section
12078 or any other law.
(B) The name and address of, and other information about, any
person (whether a dealer or a private party) from whom the owner, or
the person being loaned the firearm, acquired or was loaned the
particular pistol, revolver, or other firearm capable of being
concealed upon the person and when the firearm was acquired or loaned
as listed on the information provided to the department on the
Dealers' Record of Sale, the LEFT, or reports made to the department
pursuant to Section 12078 or any other law.
(C) Any waiting period exemption applicable to the transaction
that resulted in the owner, or the person being loaned the firearm,
acquiring or being loaned the particular pistol, revolver, or other
firearm capable of being concealed upon the person.
(D) The manufacturer's name if stamped on the firearm; model name
or number if stamped on the firearm; and, if applicable, the serial
number, other number (if more than one serial number is stamped on
the firearm), caliber, type of firearm, whether the firearm is new or
used, barrel length, and color of the firearm.
(3) Information in the registry referred to in this subdivision
shall, upon proper application therefor, be furnished to the officers
referred to in Section 11105 or to the person listed in the registry
as the owner or person who is listed as being loaned the particular
pistol, revolver, or other firearm capable of being concealed upon
the person, in the form of hard copy printouts of that information as
photographic, photostatic, and nonerasable optically stored
reproductions.
SEC. 111. Section 12033 of the Penal Code is amended to read:
12033. The Department of Consumer Affairs may issue a certificate
to any person referred to in subdivision (d) of Section 12031, upon
notification by the school where the course was completed, that the
person has successfully completed a course in the carrying and use of
firearms and a course of training in the exercise of the powers of
arrest that meet the standards prescribed by the department pursuant
to Section 7583.5 of the Business and Professions Code.
SEC. 112. Section 12071 of the Penal Code is amended to read:
12071. (a) (1) As used in this chapter, the term "licensee,"
"person licensed pursuant to Section 12071," or "dealer" means a
person who meets all of the following conditions:
(A) Has a valid federal firearms license.
(B) Has any regulatory or business license, or licenses, required
by local government.
(C) Has a valid seller's permit issued by the State Board of
Equalization.
(D) Has a certificate of eligibility issued by the Department of
Justice pursuant to paragraph (4).
(E) Has a license issued in the format prescribed by paragraph
(6).
(F) Is among those recorded in the centralized list specified in
subdivision (e).
(2) The duly constituted licensing authority of a city, county, or
a city and county shall accept applications for, and may grant
licenses permitting, licensees to sell firearms at retail within the
city, county, or city and county. The duly constituted licensing
authority shall inform applicants who are denied licenses of the
reasons for the denial in writing.
(3) No license shall be granted to any applicant who fails to
provide a copy of his or her valid federal firearms license, valid
seller's permit issued by the State Board of Equalization, and the
certificate of eligibility described in paragraph (4).
(4) A person may request a certificate of eligibility from the
Department of Justice, and the Department of Justice shall issue a
certificate to an applicant, if the department's records indicate
that the applicant is not a person who is prohibited from possessing
firearms.
(5) The department shall adopt regulations to administer the
certificate of eligibility program and shall recover the full costs
of administering the program by imposing fees assessed to applicants
who apply for those certificates.
(6) A license granted by the duly constituted licensing authority
of any city, county, or city and county, shall be valid for not more
than one year from the date of issuance and shall be in one of the
following forms:
(A) The form prescribed by the Attorney General.
(B) A regulatory or business license that states on its face
"Valid for Retail Sales of Firearms" and is endorsed by the signature
of the issuing authority.
(C) A letter from the duly constituted licensing authority having
primary jurisdiction for the applicant's intended business location
stating that the jurisdiction does not require any form of regulatory
or business license or does not otherwise restrict or regulate the
sale of firearms.
(7) Local licensing authorities may assess fees to recover their
full costs of processing applications for licenses.
(b) A license is subject to forfeiture for a breach of any of the
following prohibitions and requirements:
(1) (A) Except as provided in subparagraphs (B) and (C), the
business shall be conducted only in the buildings designated in the
license.
(B) A person licensed pursuant to subdivision (a) may take
possession of firearms and commence preparation of registers for the
sale, delivery, or transfer of firearms at gun shows or events, as
defined in Section 178.100 of Title 27 of the Code of Federal
Regulations, or its successor, if the gun show or event is not
conducted from any motorized or towed vehicle. A person conducting
business pursuant to this subparagraph is entitled to conduct
business as authorized herein at any gun show or event in the state
without regard to the jurisdiction within this state that issued the
license pursuant to subdivision (a), provided that the person
complies with (i) all applicable laws, including, but not limited to,
the waiting period specified in subparagraph (A) of paragraph (3),
and (ii) all applicable local laws, regulations, and fees, if any.
A person conducting business pursuant to this subparagraph shall
publicly display his or her license issued pursuant to subdivision
(a), or a facsimile thereof, at any gun show or event, as specified
in this subparagraph.
(C) A person licensed pursuant to subdivision (a) may engage in
the sale and transfer of firearms other than pistols, revolvers, or
other firearms capable of being concealed upon the person, at events
specified in subdivision (g) of Section 12078, subject to the
prohibitions and restrictions contained in that subdivision.
A person licensed pursuant to subdivision (a) also may accept
delivery of firearms other than pistols, revolvers, or other firearms
capable of being concealed upon the person, outside the building
designated in the license, provided the firearm is being donated for
the purpose of sale or transfer at an auction or similar event
specified in subdivision (g) of Section 12078.
(D) The firearm may be delivered to the purchaser, transferee, or
person being loaned the firearm at one of the following places:
(i) The building designated in the license.
(ii) The places specified in subparagraph (B) or (C).
(iii) The place of residence of, the fixed place of business of,
or on private property owned or lawfully possessed by, the purchaser,
transferee, or person being loaned the firearm.
(2) The license or a copy thereof, certified by the issuing
authority, shall be displayed on the premises where it can easily be
seen.
(3) No firearm shall be delivered:
(A) Prior to April 1, 1997, within 15 days of the application to
purchase a pistol, revolver, or other firearm capable of being
concealed upon the person, or, after notice by the department
pursuant to subdivision (d) of Section 12076, within 15 days of the
submission to the department of any correction to the application, or
within 15 days of the submission to the department of any fee
required pursuant to subdivision (e) of Section 12076, whichever is
later. Prior to April 1, 1997, within 10 days of the application to
purchase any firearm that is not a pistol, revolver, or other firearm
capable of being concealed upon the person, or, after notice by the
department pursuant to subdivision (d) of Section 12076, within 10
days of the submission to the department of any correction to the
application, or within 10 days of the submission to the department of
any fee required pursuant to subdivision (e) of Section 12076,
whichever is later. On or after April 1, 1997, within 10 days of the
application to purchase, or, after notice by the department pursuant
to subdivision (d) of Section 12076, within 10 days of the
submission to the department of any correction to the application, or
within 10 days of the submission to the department of any fee
required pursuant to subdivision (e) of Section 12076, whichever is
later.
(B) Unless unloaded and securely wrapped, or unloaded and in a
locked container.
(C) Unless the purchaser, transferee, or person being loaned the
firearm presents clear evidence of his or her identity and age to the
dealer.
(D) Whenever the dealer is notified by the Department of Justice
that the person is in a prohibited class described in Section 12021
or 12021.1 of this code or Section 8100 or 8103 of the Welfare and
Institutions Code.
(4) No pistol, revolver, or other firearm or imitation thereof
capable of being concealed upon the person, or placard advertising
the sale or other transfer thereof, shall be displayed in any part of
the premises where it can readily be seen from the outside.
(5) The licensee shall agree to process, and shall act properly
and promptly in processing, firearms transactions pursuant to Section
12082.
(6) The licensee shall comply with Sections 12073, 12076, and
12077, subdivisions (a) and (b) of Section 12072, and subdivision (a)
of Section 12316.
(7) The licensee shall post conspicuously within the licensed
premises the following warnings in block letters not less than one
inch in height:
(A) "IF YOU LEAVE A LOADED FIREARM WHERE A CHILD OBTAINS AND
IMPROPERLY USES IT, YOU MAY BE FINED OR SENT TO PRISON."
(B) "DISCHARGING FIREARMS IN POORLY VENTILATED AREAS, CLEANING
FIREARMS, OR HANDLING AMMUNITION MAY RESULT IN EXPOSURE TO LEAD, A
SUBSTANCE KNOWN TO CAUSE BIRTH DEFECTS, REPRODUCTIVE HARM, AND OTHER
SERIOUS PHYSICAL INJURY. HAVE ADEQUATE VENTILATION AT ALL TIMES.
WASH HANDS THOROUGHLY AFTER EXPOSURE."
(8) Commencing April 1, 1994, no pistol, revolver, or other
firearm capable of being concealed upon the person shall be delivered
unless the purchaser, transferee, or person being loaned the firearm
presents to the dealer a basic firearms safety certificate.
(9) Commencing July 1, 1992, the licensee shall offer to provide
the purchaser or transferee of a firearm, or person being loaned a
firearm, with a copy of the pamphlet described in Section 12080 and
may add the cost of the pamphlet, if any, to the sales price of the
firearm.
(10) The licensee shall not commit an act of collusion as defined
in Section 12072.
(11) The licensee shall post conspicuously within the licensed
premises a detailed list of each of the following:
(A) All charges required by governmental agencies for processing
firearm transfers required by Sections 12076, 12082, and 12806.
(B) All fees that the licensee charges pursuant to Sections 12082
and 12806.
(12) The licensee shall not misstate the amount of fees charged by
a governmental agency pursuant to Sections 12076, 12082, and 12806.
(13) The licensee shall report the loss or theft of any firearm
that is merchandise of the licensee, any firearm that the licensee
takes possession of pursuant to Section 12082, or any firearm kept at
the licensee's place of business within 48 hours of discovery to the
appropriate law enforcement agency in the city, county, or city and
county where the licensee's business premises are located.
(14) In a city and county, in the unincorporated area of a county
with a population of 200,000 persons or more according to the most
recent federal decennial census, or within a city with a population
of 50,000 persons or more according to the most recent federal
decennial census, any time the licensee is not open for business, the
licensee shall store all firearms kept in his or her licensed place
of business using one of the following methods as to each firearm:
(A) Store the firearm in a secure facility that is a part of, or
that constitutes, the licensee's business premises.
(B) Secure the firearm with a hardened steel rod or cable of at
least one-eighth inch in diameter through the trigger guard of the
firearm. The steel rod or cable shall be secured with a hardened
steel lock that has a shackle. The lock and shackle shall be
protected or shielded from the use of a bolt cutter, and the rod or
cable shall be anchored in a manner that prevents the removal of the
firearm from the premises.
(C) Store the firearm in a locked fireproof safe or vault in the
licensee's business premises.
(15) The licensing authority in an unincorporated area of a county
with a population less than 200,000 persons according to the most
recent federal decennial census, or within a city with a population
of less than 50,000 persons according to the most recent federal
decennial census, may impose the requirements specified in paragraph
(14).
(16) Commencing January 1, 1994, the licensee shall, upon the
issuance or renewal of a license, submit a copy of the same to the
Department of Justice.
(17) The licensee shall maintain and make available for inspection
during business hours to any peace officer, authorized local law
enforcement employee, or Department of Justice employee designated by
the Attorney General, upon the presentation of proper
identification, a firearms transaction record.
(18) (A) On the date of receipt, the licensee shall report to the
Department of Justice in a format prescribed by the department the
acquisition by the licensee of the ownership of a pistol, revolver,
or other firearm capable of being concealed upon the person.
(B) This paragraph does not apply to any of the following
transactions:
(i) A transaction subject to the provisions of subdivision (n) of
Section 12078.
(ii) The dealer acquired the firearm from a wholesaler.
(iii) The dealer is also licensed as a secondhand dealer pursuant
to Article 4 (commencing with Section 21625) of Chapter 9 of Division
8 of the Business and Professions Code.
(iv) The dealer acquired the firearm from a person who is licensed
as a manufacturer or importer to engage in those activities pursuant
to Chapter 44 (commencing with Section 921) of Title 18 of the
United States Code and any regulations issued pursuant thereto.
(v) The dealer acquired the firearm from a person who resides
outside this state who is licensed pursuant to Chapter 44 (commencing
with Section 921) of Title 18 of the United States Code and any
regulations issued pursuant thereto.
(c) (1) As used in this article, "clear evidence of his or her
identity and age" means either of the following:
(A) A valid California driver's license.
(B) A valid California identification card issued by the
Department of Motor Vehicles.
(2) As used in this article, a "basic firearms safety certificate"
means a basic firearm certificate issued to the purchaser,
transferee, or person being loaned the firearm by the Department of
Justice pursuant to Article 8 (commencing with Section 12800) of
Chapter 6.
(3) As used in this section, a "secure facility" means a building
that meets all of the following specifications:
(A) All perimeter doorways shall meet one of the following:
(i) A windowless steel security door equipped with both a dead
bolt and a doorknob lock.
(ii) A windowed metal door that is equipped with both a dead bolt
and a doorknob lock. If the window has an opening of five inches or
more measured in any direction, the window shall be covered with
steel bars of at least one-half inch diameter or metal grating of at
least nine gauge affixed to the exterior or interior of the door.
(iii) A metal grate that is padlocked and affixed to the licensee'
s premises independent of the door and doorframe.
(B) All windows are covered with steel bars.
(C) Heating, ventilating, air-conditioning, and service openings
are secured with steel bars, metal grating, or an alarm system.
(D) Any metal grates have spaces no larger than six inches wide
measured in any direction.
(E) Any metal screens have spaces no larger than three inches wide
measured in any direction.
(F) All steel bars shall be no further than six inches apart.
(4) As used in this section, "licensed premises," "licensed place
of business," "licensee's place of business," or "licensee's business
premises" means the building designated in the license.
(5) For purposes of paragraph (17) of subdivision (b):
(A) A "firearms transaction record" is a record containing the
same information referred to in Section 178.124a and subdivision (e)
of Section 178.125 of Title 27 of the Code of Federal Regulations.
(B) A licensee shall be in compliance with the provisions of
paragraph (17) of subdivision (b) if he or she maintains and makes
available for inspection during business hours to any peace officer,
authorized local law enforcement employee, or Department of Justice
employee designated by the Attorney General, upon the presentation of
proper identification, the bound book containing the same
information referred to in Section 178.124a and subdivision (e) of
Section 178.125 of Title 27 of the Code of Federal Regulations.
(d) Upon written request from a licensee, the licensing authority
may grant an exemption from compliance with the requirements of
paragraph (14) of subdivision (b) if the licensee is unable to comply
with those requirements because of local ordinances, covenants,
lease conditions, or similar circumstances not under the control of
the licensee.
(e) Except as otherwise provided in this subdivision, the
Department of Justice shall keep a centralized list of all persons
licensed pursuant to subparagraphs (A) to (E), inclusive, of
paragraph (1) of subdivision (a). The department may remove from
this list any person who knowingly or with gross negligence violates
this article. Upon removal of a dealer from this list, notification
shall be provided to local law enforcement and licensing authorities
in the jurisdiction where the dealer's business is located. The
department shall make information about an individual dealer
available, upon request, only for one of the following purposes:
(1) For law enforcement purposes.
(2) When the information is requested by a person licensed
pursuant to Chapter 44 (commencing with Section 921) of Title 18 of
the United States Code for determining the validity of the license
for firearm shipments.
(f) The Department of Justice may inspect dealers to ensure
compliance with this article. The department may assess an annual
fee, not to exceed eighty-five dollars ($85), to cover the reasonable
cost of maintaining the list described in subdivision (e), including
the cost of inspections. Dealers whose place of business is in a
jurisdiction that has adopted an inspection program to ensure
compliance with firearms law are exempt from that portion of the
department's fee that relates to the cost of inspections. The
applicant is responsible for providing evidence to the department
that the jurisdiction in which the business is located has the
inspection program.
(g) The Department of Justice shall maintain, and make available
upon request, information concerning the number of inspections
conducted and the amount of fees collected pursuant to subdivision
(f), a listing of exempted jurisdictions, as defined in subdivision
(f), the number of dealers removed from the centralized list defined
in subdivision (e), and the number of dealers found to have violated
this article with knowledge or gross negligence.
(h) Paragraphs (14) and (15) of subdivision (b) do not apply to a
licensee organized as a nonprofit public benefit or mutual benefit
corporation organized pursuant to Part 2 (commencing with Section
5110) or Part 3 (commencing with Section 7110) of Division 2 of the
Corporations Code, if both of the following conditions are satisfied:
(1) The nonprofit public benefit or mutual benefit corporation
obtained the dealer's license solely and exclusively to assist that
corporation or local chapters of that corporation in conducting
auctions or similar events at which firearms are auctioned off to
fund the activities of that corporation or the local chapters of the
corporation.
(2) The firearms are not pistols, revolvers, or other firearms
capable of being concealed upon the person.
SEC. 113. Section 12072 of the Penal Code is amended to read:
12072. (a) (1) No person, corporation, or firm shall knowingly
supply, deliver, sell, or give possession or control of a firearm to
any person within any of the classes prohibited by Section 12021 or
12021.1.
(2) No person, corporation, or dealer shall sell, supply, deliver,
or give possession or control of a firearm to any person whom he or
she has cause to believe to be within any of the classes prohibited
by Section 12021 or 12021.1 of this code or Section 8100 or 8103 of
the Welfare and Institutions Code.
(3) (A) No person, corporation, or firm shall sell, loan, or
transfer a firearm to a minor.
(B) Subparagraph (A) does not apply to or affect those
circumstances set forth in subdivision (p) of Section 12078.
(4) No person, corporation, or dealer shall sell, loan, or
transfer a firearm to any person whom he or she knows or has cause to
believe is not the actual purchaser or transferee of the firearm, or
to any person who is not the person actually being loaned the
firearm, if the person, corporation, or dealer has either of the
following:
(A) Knowledge that the firearm is to be subsequently loaned, sold,
or transferred to avoid the provisions of subdivision (c) or (d).
(B) Knowledge that the firearm is to be subsequently loaned, sold,
or transferred to avoid the requirements of any exemption to the
provisions of subdivision (c) or (d).
(5) No person, corporation, or dealer shall acquire a firearm for
the purpose of selling, transferring, or loaning the firearm, if the
person, corporation, or dealer has either of the following:
(A) In the case of a dealer, intent to violate subdivision (b) or
(c).
(B) In any other case, intent to avoid either of the following:
(i) The provisions of subdivision (d).
(ii) The requirements of any exemption to the provisions of
subdivision (d).
(6) The dealer shall comply with the provisions of paragraph (18)
of subdivision (b) of Section 12071.
(b) No person licensed under Section 12071 shall supply, sell,
deliver, or give possession or control of a pistol, revolver, or
firearm capable of being concealed upon the person to any person
under the age of 21 years or any other firearm to a person under the
age of 18 years.
(c) No dealer, whether or not acting pursuant to Section 12082,
shall deliver a firearm to a person, as follows:
(1) Prior to April 1, 1997, within 15 days of the application to
purchase a pistol, revolver, or other firearm capable of being
concealed upon the person, or, after notice by the department
pursuant to subdivision (d) of Section 12076, within 15 days of the
submission to the department of any correction to the application, or
within 15 days of the submission to the department of any fee
required pursuant to subdivision (e) of Section 12076, whichever is
later. Prior to April 1,
1997, within 10 days of the application to purchase any firearm that
is not a pistol, revolver, or other firearm capable of being
concealed upon the person, or, after notice by the department
pursuant to subdivision (d) of Section 12076, within 10 days of the
submission to the department of any correction to the application, or
within 10 days of the submission to the department of any fee
required pursuant to subdivision (e) of Section 12076, whichever is
later. On or after April 1, 1997, within 10 days of the application
to purchase, or, after notice by the department pursuant to
subdivision (d) of Section 12076, within 10 days of the submission to
the department of any correction to the application, or within 10
days of the submission to the department of any fee required pursuant
to subdivision (e) of Section 12076, whichever is later.
(2) Unless unloaded and securely wrapped, or unloaded and in a
locked container.
(3) Unless the purchaser, transferee, or person being loaned the
firearm presents clear evidence of his or her identity and age, as
defined in Section 12071, to the dealer.
(4) Whenever the dealer is notified by the Department of Justice
that the person is in a prohibited class described in Section 12021
or 12021.1 of this code or Section 8100 or 8103 of the Welfare and
Institutions Code.
(5) Commencing April 1, 1994, no pistol, revolver, or other
firearm capable of being concealed upon the person shall be delivered
unless the purchaser, transferee, or person being loaned the firearm
presents to the dealer a basic firearms safety certificate.
(d) Where neither party to the transaction holds a dealer's
license issued pursuant to Section 12071, the parties to the
transaction shall complete the sale, loan, or transfer of that
firearm through either of the following:
(1) A licensed dealer pursuant to Section 12082.
(2) A law enforcement agency pursuant to Section 12084.
(e) No person may commit an act of collusion relating to Article 8
(commencing with Section 12800) of Chapter 6. For purposes of this
section and Section 12071, collusion may be proven by any one of the
following factors:
(1) Answering a test applicant's questions during an objective
test relating to basic firearms safety.
(2) Knowingly grading the examination falsely.
(3) Providing an advance copy of the test to an applicant.
(4) Taking or allowing another person to take the basic firearms
safety course for one who is the applicant for the basic firearms
safety certificate.
(5) Allowing another to take the objective test for the applicant,
purchaser, or transferee.
(6) Allowing others to give unauthorized assistance during the
examination.
(7) Reference to materials during the examination and cheating by
the applicant.
(8) Providing originals or photocopies of the objective test, or
any version thereof, to any person other than as specified in
subdivision (f) of Section 12805.
(f) No person who is licensed pursuant to Chapter 44 (commencing
with Section 921) of Title 18 of the United States Code shall
deliver, sell, or transfer a firearm to a person who is licensed
pursuant to Chapter 44 (commencing with Section 921) of Title 18 of
the United States Code and whose licensed premises are located in
this state unless one of the following conditions is met:
(1) The person presents proof of licensure pursuant to Section
12071 to that person.
(2) The person presents proof that he or she is exempt from
licensure under Section 12071 to that person, in which case the
person also shall present proof that the transaction is also exempt
from the provisions of subdivision (d).
(g) (1) Except as provided in paragraph (2) or (3), a violation of
this section is a misdemeanor.
(2) If any of the following circumstances apply, a violation of
this section is punishable by imprisonment in the state prison for
two, three, or four years.
(A) If the violation is of paragraph (1) of subdivision (a).
(B) If the defendant has a prior conviction of violating this
section or former Section 12100 of this code or Section 8101 of the
Welfare and Institutions Code.
(C) If the defendant has a prior conviction of violating any
offense specified in subdivision (b) of Section 12021.1 or of a
violation of Section 12020, 12220, or 12520, or of former Section
12560.
(D) If the defendant is in a prohibited class described in Section
12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare
and Institutions Code.
(E) A violation of this section by a person who actively
participates in a "criminal street gang" as defined in Section
186.22.
(F) A violation of subdivision (b) involving the delivery of any
firearm to a person who the dealer knows, or should know, is a minor.
(3) If any of the following circumstances apply, a violation of
this section shall be punished by imprisonment in a county jail not
exceeding one year or in the state prison, or by a fine not to exceed
one thousand dollars ($1,000), or by both the fine and imprisonment.
(A) A violation of paragraph (2) of subdivision (a).
(B) A violation of paragraph (3) of subdivision (a) involving the
sale, loan, or transfer of a pistol, revolver, or other firearm
capable of being concealed upon the person to a minor.
(C) A violation of paragraph (4) of subdivision (a).
(D) A violation of paragraph (5) of subdivision (a).
(E) A violation of subdivision (b) involving the delivery of a
pistol, revolver, or other firearm capable of being concealed upon
the person.
(F) A violation of paragraph (1), (3), (4), or (5) of subdivision
(c) involving a pistol, revolver, or other firearm capable of being
concealed upon the person.
(G) A violation of subdivision (d) involving a pistol, revolver,
or other firearm capable of being concealed upon the person.
(H) A violation of subdivision (e).
(4) If both of the following circumstances apply, an additional
term of imprisonment in the state prison for one, two, or three years
shall be imposed in addition and consecutive to the sentence
prescribed.
(A) A violation of paragraph (2) of subdivision (a) or subdivision
(b).
(B) The firearm transferred in violation of paragraph (2) of
subdivision (a) or subdivision (b) is used in the subsequent
commission of a felony for which a conviction is obtained and the
prescribed sentence is imposed.
SEC. 114. Section 12078 of the Penal Code is amended to read:
12078. (a) (1) The preceding provisions of this article, except
subdivision (e) of Section 12076, do not apply to deliveries,
transfers, or sales of firearms made to any person properly
identified as a full-time paid peace officer as defined in Chapter
4.5 (commencing with Section 830) of Title 3 of Part 2, provided that
the peace officer is authorized by his or her employer to carry
firearms while in the performance of his or her duties, nor to
deliveries, transfers, or sales of firearms made to authorized
representatives of cities, cities and counties, counties, state or
federal governments for use by those governmental agencies. Proper
identification is defined as verifiable written certification from
the head of the agency by which the purchaser or transferee is
employed, identifying the purchaser or transferee as a peace officer
who is authorized to carry firearms while in the performance of his
or her duties, and authorizing the purchase or transfer. The
certification shall be delivered to the seller or transferor at the
time of purchase or transfer and the purchaser or transferee shall
identify himself or herself as the person authorized in the
certification. On the day that the application to purchase is
completed, where a peace officer is receiving the firearm, and either
a dealer is not the seller or transferor, or is not otherwise the
person responsible for the delivery of the firearm, or the transfer
or sale is not conducted through a law enforcement agency pursuant to
Section 12084, the peace officer shall forward by prepaid mail to
the Department of Justice a report of the same and the type of
information concerning the seller or transferor, the buyer or
transferee, and the firearm as is indicated in Section 12077,
together with the original certification. On the day that the
application to purchase is completed, where a dealer is the seller or
transferor, or is otherwise responsible for delivery of the firearm,
and electronic or telephonic transfer of applicant information is
used, the dealer shall retain the original certification with the
original record of electronic or telephonic transfer. If electronic
or telephonic transfer of applicant information is not used, on the
day that the application to purchase is completed, where a dealer is
the seller or transferor, or is otherwise responsible for delivery of
the firearm, the dealer shall forward by prepaid mail to the
Department of Justice a report of the same and the type of
information concerning the buyer or transferee and the firearm as is
indicated in Section 12077, together with the original certification.
On the day that the application to purchase is completed, where the
transfer is conducted pursuant to Section 12084, the law enforcement
agency shall forward by prepaid mail to the Department of Justice a
report of the same and the type of information concerning the buyer
or transferee and the firearm as is indicated in Section 12084,
together with the original certification. The reports that peace
officers shall complete shall be provided to them by the department.
No report need be submitted to the Department of Justice where a
peace officer receiving the firearm received it from his or her
employer in accordance with the applicable rules, regulations, or
procedures of the employer.
(2) The preceding provisions of this article, except subdivision
(e) of Section 12076, do not apply to deliveries, transfers, or sales
of firearms made to peace officers as defined in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2 made pursuant to
Section 10334 of the Public Contract Code. On the day that the
application to purchase is completed, and a dealer is not the person
responsible for the delivery of the firearm or the transfer or sale
is not conducted through a law enforcement agency pursuant to Section
12084, the peace officer receiving the firearm shall forward by
prepaid mail to the Department of Justice a report of the same and
the type of information concerning the seller or transferor, the
buyer or transferee, and the firearm as is indicated in Section
12077. On the day that the application to purchase is completed,
where a dealer is the seller or transferor, or is otherwise
responsible for delivery of the firearm, and electronic or telephonic
transfer of applicant information is used, the dealer shall retain
the original certification with the original record of electronic or
telephonic transfer. If electronic or telephonic transfer of
applicant information is not used, on the day that the application to
purchase is completed, where a dealer is responsible for delivery of
the firearm, the dealer shall forward by prepaid mail to the
Department of Justice a report of the same and the type of
information concerning the buyer or transferee and the firearm as is
indicated in Section 12077. On the day that the application to
purchase is completed where the transfer is conducted pursuant to
Section 12084, the law enforcement agency shall forward by prepaid
mail to the Department of Justice a report of the same and the type
of information concerning the buyer or transferee and the firearm as
is indicated in Section 12084. The reports that peace officers shall
complete shall be the same as those set forth in paragraph (1) of
this subdivision and shall be provided to them by the department.
(3) Subdivision (d) of Section 12072 does not apply to sales,
deliveries, or transfers of firearms to an authorized representative
of a city, city and county, county, or state or federal government
that is acquiring the weapon as part of an authorized, voluntary
program under which the government entity is buying or receiving
weapons from private individuals. Any weapons acquired pursuant to
this subdivision shall be disposed of pursuant to the applicable
provisions of Section 12028 or 12032.
(b) Section 12071 and subdivisions (c) and (d) of Section 12072 do
not apply to deliveries, sales, or transfers of firearms between or
to importers and manufacturers of firearms licensed to engage in that
business pursuant to Chapter 44 (commencing with Section 921) of
Title 18 of the United States Code and the regulations issued
pursuant thereto.
(c) (1) Subdivision (d) of Section 12072 does not apply to the
infrequent transfer of a firearm that is not a pistol, revolver, or
other firearm capable of being concealed upon the person by gift,
bequest, intestate succession, or other means by one individual to
another if both individuals are members of the same immediate family.
(2) Subdivision (d) of Section 12072 does not apply to the
infrequent transfer of a pistol, revolver, or other firearm capable
of being concealed upon the person by gift, bequest, intestate
succession, or other means by one individual to another if both
individuals are members of the same immediate family and both of the
following conditions are met:
(A) The person to whom the firearm is transferred shall, within 30
days of taking possession of the firearm, forward by prepaid mail or
deliver in person to the Department of Justice, a report that
includes information concerning the individual taking possession of
the firearm, how title was obtained and from whom, and a description
of the firearm in question. The report forms that individuals
complete pursuant to this paragraph shall be provided to them by the
Department of Justice.
(B) Prior to taking possession of the firearm, the person taking
title to the firearm shall obtain a basic firearm safety certificate.
(3) As used in this subdivision, "immediate family member" means
any one of the following relationships:
(A) Parent and child.
(B) Grandparent and grandchild.
(d) Subdivision (d) of Section 12072 does not apply to the
infrequent loan of firearms between persons who are personally known
to each other for any lawful purpose, if the loan does not exceed 30
days in duration.
(e) Section 12071 and subdivisions (c) and (d) of Section 12072 do
not apply to the delivery of a firearm to a gunsmith for service or
repair.
(f) Subdivision (d) of Section 12072 does not apply to the sale,
delivery, or transfer of firearms by persons who reside in this state
to persons who reside outside this state who are licensed pursuant
to Chapter 44 (commencing with Section 921) of Title 18 of the United
States Code and the regulations issued pursuant thereto, if the
sale, delivery, or transfer is in accordance with Chapter 44
(commencing with Section 921) of Title 18 of the United States Code
and the regulations issued pursuant thereto.
(g) (1) Subdivision (d) of Section 12072 does not apply to the
infrequent sale or transfer of a firearm, other than a pistol,
revolver, or other firearm capable of being concealed upon the
person, at auctions or similar events conducted by nonprofit mutual
or public benefit corporations organized pursuant to the Corporations
Code.
As used in this paragraph, the term "infrequent" shall not be
construed to prohibit different local chapters of the same nonprofit
corporation from conducting auctions or similar events, provided the
individual local chapter conducts the auctions or similar events
infrequently. It is the intent of the Legislature that different
local chapters, representing different localities, be entitled to
invoke the exemption created by this paragraph, notwithstanding the
frequency with which other chapters of the same nonprofit corporation
may conduct auctions or similar events.
(2) Subdivision (d) of Section 12072 does not apply to the
transfer of a firearm other than a pistol, revolver, or other firearm
capable of being concealed upon the person, if the firearm is
donated for an auction or similar event described in paragraph (1)
and the firearm is delivered to the nonprofit corporation immediately
preceding, or contemporaneous with, the auction or similar event.
(3) The waiting period described in Sections 12071 and 12072 does
not apply to a dealer who delivers a firearm other than a pistol,
revolver, or other firearm capable of being concealed upon the
person, at an auction or similar event described in paragraph (1), as
authorized by subparagraph (C) of paragraph (1) of subdivision (b)
of Section 12071. Within two business days of completion of the
application to purchase, the dealer shall forward by prepaid mail to
the Department of Justice a report of the same as is indicated in
subdivision (c) of Section 12077. If the electronic or telephonic
transfer of applicant information is used, within two business days
of completion of the application to purchase, the dealer delivering
the firearm shall transmit to the Department of Justice an electronic
or telephonic report of the same as is indicated in subdivision (c)
of Section 12077.
(h) Subdivision (d) of Section 12072 does not apply to the loan of
a firearm for the purposes of shooting at targets if the loan occurs
on the premises of a target facility that holds a business or
regulatory license or on the premises of any club or organization
organized for the purposes of practicing shooting at targets upon
established ranges, whether public or private, if the firearm is at
all times kept within the premises of the target range or on the
premises of the club or organization.
(i) (1) Subdivision (d) of Section 12072 does not apply to a
person who takes title or possession of firearms by operation of law
if all the following conditions are met:
(A) The person is not prohibited by Section 12021 or 12021.1 of
this code or Section 8100 or 8103 of the Welfare and Institutions
Code from possessing firearms.
(B) If the firearms are pistols, revolvers, or other firearms
capable of being concealed upon the person, and the person is not a
levying officer as defined in Section 481.140, 511.060, or 680.210 of
the Code of Civil Procedure, the person shall, within 30 days of
taking possession, forward by prepaid mail or deliver in person to
the Department of Justice a report of the same and the type of
information concerning the individual taking possession of the
firearm, how title or possession was obtained and from whom, and a
description of the firearm in question. The report forms that
individuals complete pursuant to this paragraph shall be provided to
them by the Department of Justice.
(C) In the case of a transmutation of property between spouses
made in accordance with Section 850 of the Family Code consisting of
a pistol, revolver, or other firearm capable of being concealed upon
the person, taking place on or after April 1, 1994, a basic firearms
safety certificate shall be required prior to taking possession of
the firearm.
(2) Subdivision (d) of Section 12072 does not apply to a person
who takes possession of a firearm by operation of law in a
representative capacity who transfers ownership of the firearm to
himself or herself in his or her individual capacity. In the case of
a pistol, revolver, or other firearm capable of being concealed upon
the person, on and after April 1, 1994, that individual shall have a
basic firearms safety certificate in order for the exemption set
forth in this paragraph to apply.
(j) Subdivision (d) of Section 12072 does not apply to deliveries,
transfers, or returns of firearms made pursuant to Section 12028,
12028.5, or 12030.
(k) Section 12071 and subdivision (c) of Section 12072 do not
apply to any of the following:
(1) The delivery, sale, or transfer of unloaded firearms that are
not pistols, revolvers, or other firearms capable of being concealed
upon the person by a dealer to another dealer upon proof that the
person receiving the firearm is licensed pursuant to Section 12071.
(2) The delivery, sale, or transfer of unloaded firearms by
dealers to persons who reside outside this state who are licensed
pursuant to Chapter 44 (commencing with Section 921) of Title 18 of
the United States Code and the regulations issued pursuant thereto.
(3) The delivery, sale, or transfer of unloaded firearms to a
wholesaler if the firearms are being returned to the wholesaler and
are intended as merchandise in the wholesaler's business.
(4) The delivery, sale, or transfer of unloaded firearms by one
dealer to another dealer if the firearms are intended as merchandise
in the receiving dealer's business, upon proof that the person
receiving the firearm is licensed pursuant to Section 12071.
(5) The delivery, sale, or transfer of an unloaded firearm that is
not a pistol, revolver, or other firearm capable of being concealed
upon the person by a dealer to himself or herself.
(6) The loan of an unloaded firearm by a dealer who also operates
a target facility that holds a business or regulatory license on the
premises of the building designated in the license or whose building
designated in the license is on the premises of any club or
organization organized for the purposes of practicing shooting at
targets upon established ranges, whether public or private, to a
person at that target facility or that club or organization, if the
firearm is at all times kept within the premises of the target range
or on the premises of the club or organization.
(l) A person who is exempt from subdivision (d) of Section 12072
or is otherwise not required by law to report his or her acquisition,
ownership, or disposal of a pistol, revolver, or other firearm
capable of being concealed upon the person or who moves out of this
state with his or her pistol, revolver, or other firearm capable of
being concealed upon the person may submit a report of the same to
the Department of Justice in a format prescribed by the department.
(m) Subdivision (d) of Section 12072 does not apply to the
delivery, sale, or transfer of unloaded firearms to a wholesaler as
merchandise in the wholesaler's business by manufacturers or
importers licensed to engage in that business pursuant to Chapter 44
(commencing with Section 921) of Title 18 of the United States Code
and the regulations issued pursuant thereto, or by another
wholesaler, if the delivery, sale, or transfer is made in accordance
with Chapter 44 (commencing with Section 921) of Title 18 of the
United States Code.
(n) (1) The waiting period described in Section 12071 or 12072
does not apply to the delivery, sale, or transfer of a pistol,
revolver, or other firearm capable of being concealed upon the person
by a dealer in either of the following situations:
(A) The dealer is delivering the firearm to another dealer and it
is not intended as merchandise in the receiving dealer's business.
(B) The dealer is delivering the firearm to himself or herself and
it is not intended as merchandise in his or her business.
(2) In order for this subdivision to apply, both of the following
shall occur:
(A) If the dealer is receiving the firearm from another dealer,
the dealer receiving the firearm shall present proof to the dealer
delivering the firearm that he or she is licensed pursuant to Section
12071.
(B) Whether the dealer is delivering, selling, or transferring the
firearm to himself or herself or to another dealer, on the date that
the application to purchase is completed, the dealer delivering the
firearm shall forward by prepaid mail to the Department of Justice a
report of the same and the type of information concerning the
purchaser or transferee as is indicated in subdivision (b) of Section
12077. Where the electronic or telephonic transfer of applicant
information is used, on the date that the application to purchase is
completed, the dealer delivering the firearm shall transmit an
electronic or telephonic report of the same and the type of
information concerning the purchaser or transferee as is indicated in
subdivision (b) of Section 12077.
(o) Section 12071 and subdivisions (c) and (d) of Section 12072 do
not apply to the delivery, sale, or transfer of firearms regulated
pursuant to Section 12020, Chapter 2 (commencing with Section 12200),
or Chapter 2.3 (commencing with Section 12275), if the delivery,
sale, or transfer is conducted in accordance with the applicable
provisions of Section 12020, Chapter 2 (commencing with Section
12200), or Chapter 2.3 (commencing with Section 12275).
(p) (1) Paragraph (3) of subdivision (a) and subdivision (d) of
Section 12072 do not apply to the loan of a firearm that is not a
pistol, revolver, or other firearm capable of being concealed upon
the person to a minor if the loan is made with the express permission
of the parent or legal guardian of the minor, does not exceed 30
days in duration, and is for a lawful purpose.
(2) Paragraph (3) of subdivision (a) and subdivision (d) of
Section 12072 do not apply to the loan of a pistol, revolver, or
other firearm capable of being concealed upon the person to a minor
by a person who is not the parent or legal guardian of the minor if
all of the following circumstances exist:
(A) The minor has the written consent of his or her parent or
legal guardian that is presented at the time of, or prior to the time
of, the loan, or is accompanied by his or her parent or legal
guardian at the time the loan is made.
(B) The minor is being loaned the firearm for the purpose of
engaging in a lawful recreational sport, including, but not limited
to, competitive shooting, or agricultural, ranching, or hunting
activity, or a motion picture, television, or video production, or
entertainment or theatrical event, the nature of which involves the
use of a firearm.
(C) The duration of the loan does not exceed the amount of time
that is reasonably necessary to engage in the lawful recreational
sport, including, but not limited to, competitive shooting, or
agricultural, ranching, or hunting activity, or a motion picture,
television, or video production, or entertainment or theatrical
event, the nature of which involves the use of a firearm.
(D) The duration of the loan does not, in any event, exceed 10
days.
(3) Paragraph (3) of subdivision (a) and subdivision (d) of
Section 12072 do not apply to the loan of a pistol, revolver, or
other firearm capable of being concealed upon the person to a minor
by his or her parent or legal guardian if both of the following
circumstances exist:
(A) The minor is being loaned
the firearm for the purposes of engaging in a lawful recreational
sport, including, but not limited to, competitive shooting, or
agricultural, ranching, or hunting activity, or a motion picture,
television, or video production, or entertainment or theatrical
event, the nature of which involves the use of a firearm.
(B) The duration of the loan does not exceed the amount of time
that is reasonably necessary to engage in the lawful recreational
sport, including, but not limited to, competitive shooting, or
agricultural, ranching, or hunting activity, or a motion picture,
television, or video production, or entertainment or theatrical
event, the nature of which involves the use of a firearm.
(4) Paragraph (3) of subdivision (a) of Section 12072 does not
apply to the transfer or loan of a firearm that is not a pistol,
revolver, or other firearm capable of being concealed upon the person
to a minor by his or her parent or legal guardian.
(5) Paragraph (3) of subdivision (a) of Section 12072 does not
apply to the transfer or loan of a firearm that is not a pistol,
revolver, or other firearm capable of being concealed upon the person
to a minor by his or her grandparent who is not the legal guardian
of the minor if the transfer is done with the express permission of
the parent or legal guardian of the minor.
(q) Subdivision (d) of Section 12072 does not apply to the loan of
a firearm that is not a pistol, revolver, or other firearm capable
of being concealed upon the person to a licensed hunter for use by
that licensed hunter for a period of time not to exceed the duration
of the hunting season for which that firearm is to be used.
(r) The waiting period described in Section 12071, 12072, or 12084
does not apply to the delivery, sale, or transfer of a firearm to
the holder of a special weapons permit issued by the Department of
Justice issued pursuant to Section 12095, 12230, 12250, or 12305. On
the date that the application to purchase is completed, the dealer
delivering the firearm or the law enforcement agency processing the
transaction pursuant to Section 12084 shall forward by prepaid mail
to the Department of Justice a report of the same as described in
subdivision (b) or (c) of Section 12077 or Section 12084. If the
electronic or telephonic transfer of applicant information is used,
on the date that the application to purchase is completed, the dealer
delivering the firearm shall transmit to the Department of Justice
an electronic or telephonic report of the same as is indicated in
subdivision (b) or (c) of Section 12077.
(s) Subdivision (d) of Section 12072 does not apply to the loan of
an unloaded firearm or the loan of a firearm loaded with blank
cartridges for use solely as a prop for a motion picture, television,
or video production or an entertainment or theatrical event.
(t) The waiting period described in Sections 12071, 12072, and
12084 does not apply to the sale, delivery, loan, or transfer of a
pistol, revolver, or other firearm capable of being concealed upon
the person that is a curio or relic, as defined in Section 178.11 of
Title 27 of the Code of Federal Regulations, by a dealer or through a
law enforcement agency to a person who is licensed as a collector
pursuant to Chapter 44 (commencing with Section 921) of Title 18 of
the United States Code and the regulations issued pursuant thereto
who has a current certificate of eligibility issued to him or her by
the Department of Justice pursuant to Section 12071. On the date
that the delivery, sale, or transfer is made, the dealer delivering
the firearm or the law enforcement agency processing the transaction
pursuant to Section 12084 shall forward by prepaid mail to the
Department of Justice a report of the transaction pursuant to
subdivision (b) of Section 12077 or Section 12084. If the electronic
or telephonic transfer of applicant information is used, on the date
that the application to purchase is completed, the dealer delivering
the firearm shall transmit to the Department of Justice an
electronic or telephonic report of the transaction as is indicated in
subdivision (b) of Section 12077.
(u) As used in this section:
(1) "Infrequent" has the same meaning as in paragraph (1) of
subdivision (c) of Section 12070.
(2) "A person taking title or possession of firearms by operation
of law" includes, but is not limited to, any of the following
instances wherein an individual receives title to, or possession of,
firearms:
(A) The executor or administrator of an estate, if the estate
includes firearms.
(B) A secured creditor or an agent or employee thereof, when the
firearms are possessed as collateral for, or as a result of, a
default under a security agreement under the Commercial Code.
(C) A levying officer, as defined in Section 481.140, 511.060, or
680.260 of the Code of Civil Procedure.
(D) A receiver performing his or her functions as a receiver, if
the receivership estate includes firearms.
(E) A trustee in bankruptcy performing his or her duties, if the
bankruptcy estate includes firearms.
(F) An assignee for the benefit of creditors performing his or her
functions as an assignee, if the assignment includes firearms.
(G) A transmutation of property consisting of firearms pursuant to
Section 850 of the Family Code.
(H) Firearms passing to a surviving spouse pursuant to Chapter 1
(commencing with Section 13500) of Part 2 of Division 8 of the
Probate Code.
(I) Firearms received by the family of a police officer or deputy
sheriff from a local agency pursuant to Section 50081 of the
Government Code.
SEC. 115. Section 12084 of the Penal Code is amended to read:
12084. (a) As used in this section, the following definitions
apply:
(1) "Agency" means a sheriff's department in a county of less than
200,000 persons, according to the most recent federal decennial
census, that elects to process purchases, sales, loans, or transfers
of firearms.
(2) "Seller" means the seller or transferor of a firearm or the
person loaning the firearm.
(3) "Purchaser" means the purchaser or transferee of a firearm or
the person being loaned a firearm.
(4) "Purchase" means the purchase, loan, sale, or transfer of a
firearm.
(5) "Department" means the Department of Justice.
(6) "LEFT" means the Law Enforcement Firearms Transfer Form
consisting of the transfer form utilized to purchase a firearm in
accordance with this section.
(b) As an alternative to completing the sale, transfer, or loan of
a firearm through a licensed dealer pursuant to Section 12082, the
parties to the purchase of a firearm may complete the transaction
through an agency in accordance with this section in order to comply
with subdivision (d) of Section 12072.
(c) (1) LEFTs shall be prepared by the State Printer and shall be
furnished to agencies on application at a cost to be determined by
the Department of General Services for each 100 leaves in
quintuplicate, one original and four duplicates for the making of
carbon copies. The original and duplicate copies shall differ in
color, and shall be in the form provided by this section. The State
Printer, upon issuing the LEFT, shall forward to the department the
name and address of the agency together with the series and sheet
numbers on the LEFT. The LEFT shall not be transferable.
(2) The department shall prescribe the form of the LEFT. It shall
be in the same exact format set forth in Sections 12077 and 12082,
with the same distinct formats for firearms that are pistols,
revolvers, and other firearms capable of being concealed upon the
person and for firearms that are not pistols, revolvers, and other
firearms capable of being concealed upon the person, except that,
instead of the listing of information concerning a dealer, the LEFT
shall contain the name, telephone number, and address of the law
enforcement agency.
(3) The original of each LEFT shall be retained in consecutive
order. Each book of 50 originals shall become the permanent record
of transactions that shall be retained not less than three years from
the date of the last transaction and shall be provided for the
inspection of any peace officer, department employee designated by
the Attorney General, or agent of the federal Bureau of Alcohol,
Tobacco and Firearms upon the presentation of proper identification.
(4) Ink shall be used to complete each LEFT. The agency shall
ensure that all information is provided legibly. The purchaser and
seller shall be informed that incomplete or illegible information
delays purchases.
(5) Each original LEFT shall contain instructions regarding the
procedure for completion of the form and the routing of the form.
The agency shall comply with these instructions which shall include
the information set forth in this subdivision.
(6) One firearm transaction shall be reported on each LEFT. For
purposes of this paragraph, a "transaction" means a single sale,
loan, or transfer of any number of firearms that are not pistols,
revolvers, or other firearms capable of being concealed upon the
person between the same two persons.
(d) The following procedures shall be followed in processing the
purchase:
(1) Without waiting for the conclusion of any waiting period to
elapse, the seller shall immediately deliver the firearm to the
agency solely to complete the LEFT. Upon completion of the LEFT, the
firearm shall be immediately returned by the agency to the seller
without waiting for the waiting period to elapse.
(2) The purchaser shall be required to present clear evidence of
his or her identity and age, as defined in Section 12071, to the
agency. The agency shall require the purchaser to complete the
original and one copy of the LEFT. An employee of the agency shall
then affix his or her signature as a witness to the signature and
identification of the purchaser.
(3) Two copies of the LEFT shall, on that date of purchase, be
placed in the mail, postage prepaid to the department at Sacramento.
The third copy shall be provided to the purchaser and the fourth
copy to the seller.
(4) The department shall examine its records, as well as those
records that it is authorized to request from the State Department of
Mental Health pursuant to Section 8104 of the Welfare and
Institutions Code, in order to determine if the purchaser is a person
described in Section 12021 or 12021.1 of this code or Section 8100
or 8103 of the Welfare and Institutions Code.
(5) If the department determines that the copies of the LEFT
submitted to it pursuant to paragraph (3) contain any blank spaces or
inaccurate, illegible, or incomplete information, preventing
identification of the purchaser or the firearm to be purchased, or if
any fee required pursuant to paragraph (6) is not submitted by the
agency in conjunction with submission of the copies of the LEFT, or
if the department determines that the person is a person described in
Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the
Welfare and Institutions Code, it shall immediately notify the
agency of that fact. Upon notification by the department, the
purchaser shall submit any fee required pursuant to paragraph (6), as
appropriate, and, if notification by the department is received by
the agency at any time prior to delivery of the firearm, the delivery
of the firearm shall be withheld until the conclusion of the waiting
period described in paragraph (7).
(6) (A) The agency may charge a fee, not to exceed actual cost,
sufficient to reimburse the agency for processing the transfer.
(B) The department may charge a fee, not to exceed actual cost,
sufficient to reimburse the department for providing the information.
The department shall charge the same fee that it would charge a
dealer pursuant to Section 12082.
(7) The firearm shall not be delivered to the purchaser as
follows:
(A) Prior to April 1, 1997, within 15 days of the application to
purchase a pistol, revolver, or other firearm capable of being
concealed upon the person, or, after notice by the department
pursuant to paragraph (5), within 15 days of the submission to the
department of any fees required pursuant to this subdivision, or
within 15 days of the submission to the department of any correction
to the LEFT, whichever is later. Prior to April 1, 1997, within 10
days of the application to purchase any firearm that is not a pistol,
revolver, or other firearm capable of being concealed upon the
person, or, after notice by the department pursuant to paragraph (5),
within 10 days of the submission to the department of any fees
required pursuant to this subdivision, or within 10 days of the
submission to the department of any correction to the LEFT, whichever
is later. On and after April 1, 1997, within 10 days of the
application to purchase, or after notice by the department pursuant
to paragraph (5), within 10 days of the submission to the department
of any fees required pursuant to this subdivision, or within 10 days
of the submission to the department of any correction to the LEFT,
whichever is later.
(B) Unless unloaded.
(C) In the case of a pistol, revolver, or other firearm capable of
being concealed upon the person, unless securely wrapped or in a
locked container.
(D) Unless the purchaser presents clear evidence of his or her
identity and age to the agency.
(E) Whenever the agency is notified by the department that the
person is in a prohibited class described in Section 12021 or
12021.1, or Section 8100 or 8103 of the Welfare and Institutions
Code.
(F) Unless done at the agency's premises.
(G) In the case of a pistol, revolver, or other firearm capable of
being concealed upon the person, commencing April 1, 1994, unless
the purchaser presents to the seller a basic firearms safety
certificate.
(H) Unless the purchaser is at least 18 years of age.
(e) The action of a law enforcement agency acting pursuant to
Section 12084 shall be deemed to be a discretionary act within the
meaning of the California Tort Claims Act pursuant to Division 3.6
(commencing with Section 810) of Title 1 of the Government Code.
(f) Whenever the Department of Justice acts pursuant to this
section as it pertains to firearms other than pistols, revolvers, or
other firearms capable of being concealed upon the person, its acts
or omissions shall be deemed to be discretionary within the meaning
of the California Tort Claims Act pursuant to Division 3.6
(commencing with Section 810) of Title 1 of the Government Code.
(g) Any person furnishing a fictitious name or address or
knowingly furnishing any incorrect information or knowingly omitting
any information required to be provided for the LEFT is guilty of a
misdemeanor.
(h) All sums received by the department pursuant to this section
shall be deposited in the Dealers' Record of Sale Special Account of
the General Fund.
SEC. 116. Section 12403.7 of the Penal Code is amended to read:
12403.7. Notwithstanding any other law, any person may purchase,
possess, or use tear gas and tear gas weapons for the projection or
release of tear gas if the tear gas and tear gas weapons are used
solely for self-defense purposes, subject to the following
requirements:
(a) No person convicted of a felony or any crime involving an
assault under the laws of the United States, the State of California,
or any other state, government, or country or convicted of misuse of
tear gas under subdivision (g) shall purchase, possess, or use tear
gas or tear gas weapons.
(b) No person who is addicted to any narcotic drug shall purchase,
possess, or use tear gas or tear gas weapons.
(c) No person shall sell or furnish any tear gas or tear gas
weapon to a minor.
(d) No person who is a minor shall purchase, possess, or use tear
gas or tear gas weapons.
(e) (1) No person shall purchase, possess, or use any tear gas
weapon that expels a projectile, or that expels the tear gas by any
method other than an aerosol spray, or that contains more than 2.5
ounces net weight of aerosol spray.
(2) Every tear gas container and tear gas weapon that may be
lawfully purchased, possessed, and used pursuant to this section
shall have a label that states: "WARNING: The use of this substance
or device for any purpose other than self-defense is a crime under
the law. The contents are dangerous--use with care."
(3) After January 1, 1984, every tear gas container and tear gas
weapon that may be lawfully purchased, possessed, and used pursuant
to this section shall have a label that discloses the date on which
the useful life of the tear gas weapon expires.
(4) Every tear gas container and tear gas weapon that may be
lawfully purchased pursuant to this section shall be accompanied at
the time of purchase by printed instructions for use.
(f) Effective March 1, 1994, every tear gas container and tear gas
weapon that may be lawfully purchased, possessed, and used pursuant
to this section shall be accompanied by an insert including
directions for use, first aid information, safety and storage
information, and explanation of the legal ramifications of improper
use of the tear gas container or tear gas product.
(g) Any person who uses tear gas or tear gas weapons except in
self-defense is guilty of a public offense and is punishable by
imprisonment in a state prison for 16 months, or two or three years
or in a county jail not to exceed one year or by a fine not to exceed
one thousand dollars ($1,000), or by both the fine and imprisonment,
except that, if the use is against a peace officer, as defined in
Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2,
engaged in the performance of his or her official duties and the
person committing the offense knows or reasonably should know that
the victim is a peace officer, the offense is punishable by
imprisonment in a state prison for 16 months or two or three years or
by a fine of one thousand dollars ($1,000), or by both the fine and
imprisonment.
SEC. 117. The heading of Article 8 (commencing Section 12800) of
Chapter 6 of Title 2 of Part 4 of the Penal Code is amended to read:
Article 8. Basic Firearms Safety Instruction and Certificate
SECTION 118. Section 3493 of the Public Resources Code is
repealed.
SEC. 119. Section 4576.1 of the Public Resources Code is amended
to read:
4576.1. During the period for which a timber operator license has
been suspended or revoked pursuant to Section 4576, the real person
in interest, as defined in Section 4570, shall not have any
ownership, possessory, security, or other pecuniary interest in, or
any responsibility for the conduct of, the timber operations of any
person licensed pursuant to this article. This provision does not
preclude ownership of publicly traded stock in any corporation.
SEC. 120. Section 6817 of the Public Resources Code is amended to
read:
6817. (a) The Controller shall annually as of June 30 apportion,
for the fiscal year ending on that date, to each city or county
having within its boundaries ungranted tide and submerged lands or
other tide and submerged lands granted to it by the state, in which
the state has reserved the rights to the mineral deposits contained
therein, 1 percent of the revenues paid to the state under Article 4
(commencing with Section 6870) from those tide and submerged lands
that are within the limits of the particular county or city, except
that the total amount apportioned to each city or county in each year
shall not exceed one hundred thousand dollars ($100,000) per mile,
or fraction of a mile, of ocean frontage that is within, and owned or
operated as a park by, that city or county and leased by the
commission for the production of oil, gas, and other hydrocarbons,
and which ocean frontage is available to the public free of charge
for recreational purposes. However, that limitation on the amount
that may be apportioned to each city or county in each year does not
apply to revenues from leases within the limits of the particular
county or city that exceed the revenues paid to the state during the
1983-84 fiscal year. Any city that is fronted, in whole or in part,
by a state oil and gas lease shall be qualified to receive an
apportionment under this section based on the formula contained in
this section. For purposes of this section, tide and submerged lands
within the limits of a city shall not be deemed to be within the
boundaries of a county except in the case of a city and county. The
commission shall, at the time of remitting revenues to the State
Treasury received under Article 4 (commencing with Section 6870),
report to the Controller the total amount of the revenue paid from
the tide and submerged lands to the state, shown with respect to each
city or county to which that amount is applicable. The
apportionment for any given fiscal year shall be based upon the
physical facts with respect to each city or county existing on June
30 of the next preceding fiscal year. The report of the commission
and the apportionments of the Controller shall be final.
(b) In addition to any amounts payable to a city or county
pursuant to subdivision (a), 20 percent of revenues paid to the state
under Article 4 (commencing with Section 6870) that are derived from
the production of oil, gas, and other hydrocarbons from a state
tideland lease, not to exceed a total amount of two hundred million
dollars ($200,000,000), adjusted annually to reflect increases in the
cost of living, as measured by the California Consumer Price Index,
shall be paid to the city or county within whose boundaries the lease
is located, for a period not to exceed 20 years from commencement of
payment, if oil, gas, or other hydrocarbons are extracted under the
lease under any of the following circumstances, except as provided in
subdivision (c):
(1) The lease was not under production at any time during 1994.
(2) Although the lease was under production at some time during
1994, the lease is subject to a boundary adjustment pursuant to
Section 6872.5.
(3) Although the lease was under production in 1994, the lease has
new production from a new drilling site constructed after January 1,
1996, including a new offshore platform, an existing offshore
platform that has been substantially modified to achieve an increase
in production, a subsea well completion, or an upland drilling site
where the upland drilling site was constructed pursuant to a
development plan approved by the commission after January 1, 1996.
(4) The extraction is from a production zone not under production
prior to January 1, 1996.
(5) The extraction is from new wells drilled as a result of a
development plan approved by the commission after January 1, 1996.
(c) Subdivision (b) does not apply to any of the following:
(1) Oil and gas development on tide and submerged lands that have
been granted by the state to local government without a reservation
of the minerals to the state.
(2) The Long Beach Unit operations, notwithstanding the inclusion
in those operations of the Alamitos Beach Park Lands as Tract No. 2.
(3) Any upland location or tideflats. "Tideflats" are areas that
are marshy, sandy, or muddy and nearly horizontal coastal flatlands
that are alternatively covered and exposed as the tide rises and
falls, or that are located within 100 feet inland of the mean high
tide line of any beach or tideflat.
(4) Any upland drilling site, unless the site requires the use of
slant drilling technology to extract oil, gas, or other hydrocarbons.
(5) Leases that do not have either a local or state development
plan submitted for consideration on or before January 1, 2002.
(d) (1) The amounts paid to cities and counties shall be deposited
in a special tide and submerged lands fund established by the cities
or counties, to be held in trust and to be expended only for the
promotion and accommodation of commerce, navigation, and fisheries,
for the protection of the lands within the boundaries of the cities
and counties, for the promotion, accommodation, establishment,
improvement, operation, and maintenance of public recreational
beaches and coastline for the benefit of all the people of the state,
and for the mitigation of any adverse environmental impact caused by
exploration for hydrocarbons on state tide and submerged lands
within city or county boundaries or caused by production or
transportation of hydrocarbons produced on these tide and submerged
lands.
(2) The Legislature hereby finds and declares that the purposes
specified in paragraph (1) constitute matters of statewide interest
and that the expenditure of funds for those purposes will benefit all
of the people of the state.
(e) This section applies with respect to all revenues received in
the State Treasury on and after October 1, 1963.
SEC. 121. Section 42010 of the Public Resources Code is amended to
read:
42010. (a) The local governing body may, either by ordinance or
resolution, upon the recommendation of the appropriate land use
planning agency, propose eligible parcels of property within its
jurisdiction as a recycling market development zone.
(b) The proposal of a recycling market development zone shall be
based upon the following findings by the local governing body:
(1) The current waste management practices and conditions are
favorable to the development of postconsumer waste material markets.
(2) The designation as a recycling market development zone is
necessary to assist in attracting private sector recycling
investments to the area.
(c) (1) The Recycling Market Development Revolving Loan Subaccount
is hereby created in the account for the purpose of providing loans
for purposes of the Recycling Market Development Revolving Loan
Program established pursuant to this article.
(2) Notwithstanding Section 13340 of the Government Code, the
funds deposited in the subaccount are hereby continuously
appropriated to the board without regard to fiscal year for making
loans pursuant to this article.
(3) The board may, upon appropriation by the Legislature in the
annual Budget Act, expend interest earnings on funds in the
subaccount for administrative expenses incurred in carrying out the
Recycling Market Development Revolving Loan Program.
(4) The money from any loan repayments and fees, including, but
not limited to, principal and interest repayments, fees and points,
recovery of collection costs, income earned on any asset recovered
pursuant to a loan default, and funds collected through foreclosure
actions, shall be deposited in the subaccount.
(5) All interest accruing on interest payments
from loan applicants shall be deposited in the subaccount.
(6) The board may make low-interest loans to local governing
bodies and private business entities within a recycling market
development zone from money in the subaccount for the purpose of
assisting the board and local agencies in complying with Section
40051 and to assist counties and cities in complying with Section
41780.
(7) The board shall establish and collect fees for applications
for loans authorized by this section. The application fee shall be
set at a level that is sufficient to fund the board's cost of
processing applications for loans. In addition, the board shall
establish a schedule of fees, or points, for loans that are entered
into by the board, to fund the board's administration of the
revolving loan program.
(8) The board may, upon appropriation by the Legislature in the
annual Budget Act, expend money in the subaccount for the
administration of the Recycling Market Development Revolving Loan
Program. In addition, the board may fund administration of the
revolving loan program from the account upon appropriation by the
Legislature in the annual Budget Act. However, funding for the
administration of the revolving loan program from the account shall
be provided only if there are not sufficient funds in the subaccount
to fully fund administration of the program.
(9) The board, pursuant to subdivision (a) of Section 47901, may
set aside funds for the purposes of paying costs necessary to protect
the state's position as a lender-creditor. These costs shall be
broadly construed to include, but not be limited to, foreclosure
expenses, auction fees, title searches, appraisals, real estate
brokerage fees, attorney fees, mortgage payments, insurance payments,
utility costs, repair costs, removal and storage costs for
repossessed equipment and inventory, and additional expenditures to
purchase a senior lien in foreclosure or bankruptcy proceedings.
(d) Loans made pursuant to subdivision (c) shall be subject to all
of the following requirements:
(1) The terms of any approved loan shall be specified in a loan
agreement between the borrower and the board. The loan agreement
shall include a requirement that the failure to comply with the
agreement shall result in any remaining unpaid amount of the loan,
with accrued interest, being immediately due and payable.
Notwithstanding any term of the agreement, any recipient of a loan
that the board approves shall repay the principal amount, plus
interest on the basis of the rate of return for money in the Surplus
Money Investment Fund at the time of the loan commitment. Except as
provided in subdivision (g), all money received as repayment and
interest on loans made pursuant to this section shall be deposited in
the subaccount.
(2) The term of any loan made pursuant to this section shall be
not more than 10 years.
(3) The board shall approve only those loan applications that
demonstrate the applicant's ability to repay the loan. The highest
priority for funding shall be given to projects that demonstrate that
the project will increase market demand for recycling the project's
type of postconsumer waste material.
(4) The board shall finance not more than one-half of the cost of
the project, or not more than one million dollars ($1,000,000) for
loans to the project, whichever is less.
(5) The board shall encourage applicants to seek participation
from private financial institutions or other public agencies. For
purposes of enabling the board and local agencies to comply with
Sections 40051 and 41780, the board may, on a pilot basis,
participate, in an amount not to exceed five hundred thousand dollars
($500,000), in the Capital Access Loan Program as provided in
Article 8 (commencing with Section 44559) of Chapter 1 of Division 27
of the Health and Safety Code.
(6) The Department of Finance may audit the expenditure of the
proceeds of any loan made pursuant to this section.
(e) Upon authorization by the Legislature in the annual Budget
Act, the Controller shall transfer the sum of five million dollars
($5,000,000) from the account to the subaccount for the purpose of
making loans pursuant to this section. Commencing July 1, 2000, upon
authorization by the Legislature in the annual Budget Act, the
amount of the funds transferred pursuant to this section shall be a
sum not to exceed five million dollars ($5,000,000) as necessary to
meet anticipated loan demand. Those amounts shall be a loan to the
subaccount, repayable with interest to the account at the rate of
return for money in the Surplus Money Investment Fund.
(f) The board shall, as part of the annual report to the
Legislature pursuant to Section 40507, include a report on the
performance of the Recycling Market Development Revolving Loan
Program, including the number and size of loans made, characteristics
of loan recipients, projected loan demand, and the cost of
administering the program.
(g) All money remaining in the subaccount on July 1, 2006, and all
money received as repayment and interest on loans shall, as of July
1, 2006, be transferred to the account, and any money due and
outstanding on loans as of July 1, 2006, shall be repaid to the board
and deposited by the board in the account until paid in full, except
that, upon authorization by the Legislature in the annual Budget
Act, interest earnings may be expended for administrative costs
associated with the collection of outstanding loan accounts.
(h) (1) Except as provided in paragraph (2), this section shall
become inoperative on July 1, 2006, and as of January 1, 2007, is
repealed, unless a later enacted statute, which becomes effective on
or before January 1, 2007, deletes or extends the dates on which it
becomes inoperative and is repealed.
(2) The repeal of this section pursuant to paragraph (1) shall not
extinguish any loan obligation or the authority of the state to
pursue appropriate actions for the collection of a loan.
SEC. 122. Section 42350 of the Public Resources Code is amended to
read:
42350. (a) For the purposes of this section, "degradable" means
all of the following:
(1) Biodegradation, photodegradation, chemodegradation, or
degradation by other natural degrading processes, as defined by the
American Society of Testing Materials.
(2) Degradation at a rate that meets the requirements of Part 238
(commencing with Section 238.10) of Subchapter H of Chapter I of
Title 40 of the Code of Federal Regulations.
(3) Degradation that, as attested by the manufacturer of the
device, will not produce or result in a residue or byproduct that,
during or after the process of degrading, would be a hazardous or
extremely hazardous waste identified pursuant to Chapter 6.5
(commencing with Section 25100) of Division 20 of the Health and
Safety Code.
(b) Except as provided in subdivision (c), no container shall be
sold or offered for sale at retail in this state that is connected to
any other container by means of a plastic ring or similar plastic
device that is not degradable when disposed of as litter.
(c) This section does not apply to devices that do not contain an
enclosed hole or circle of more than one and one-half inches in
diameter or that do not contain a hole.
(d) Any person who sells at wholesale or distributes to a retailer
for sale at retail in this state containers that are connected to
each other in violation of subdivision (b) is guilty of an infraction
and shall be punished by a fine not exceeding one thousand dollars
($1,000).
SEC. 123. Section 43210 of the Public Resources Code is amended to
read:
43210. For those facilities that accept only hazardous wastes, or
accept only low-level radioactive wastes, or facilities that accept
only both, and to which Chapter 6.5 (commencing with Section 25100)
of Division 20 or Chapter 8 (commencing with Section 114960) of Part
9 of Division 104 of the Health and Safety Code applies, the board
and the enforcement agency have no enforcement or regulatory
authority. All enforcement activities for the facilities relative to
the control of hazardous wastes shall be performed by the Department
of Toxic Substances Control pursuant to Article 8 (commencing with
Section 25180) of Chapter 6.5 of Division 20 of the Health and Safety
Code, and all enforcement activities relative to the control of low-
level radioactive waste shall be performed by the State Department
of Health Services pursuant to Chapter 8 (commencing with Section
114960) of Part 9 of Division 104 of the Health and Safety Code.
SEC. 124. Section 43211 of the Public Resources Code is amended to
read:
43211. (a) For those facilities that accept both hazardous wastes
and other solid wastes, the Department of Toxic Substances Control
shall exercise enforcement and regulatory powers relating to the
control of the hazardous wastes at the facility pursuant to Chapter
6.5 (commencing with Section 25100) of Division 20 of the Health and
Safety Code. The board and the enforcement agency shall, at solid
waste disposal facilities, exercise enforcement and regulatory powers
relating to the control of solid wastes and asbestos-containing
waste, as provided in Section 44820.
(b) For purposes of this section, "asbestos containing waste"
means waste that contains more than 1 percent by weight, of asbestos
that is either friable or nonfriable.
SEC. 125. Section 368 of the Public Utilities Code is amended to
read:
368. Each electrical corporation shall propose a cost recovery
plan to the commission for the recovery of the uneconomic costs of an
electrical corporation's generation-related assets and obligations
identified in Section 367. The commission shall authorize the
electrical corporation to recover the costs pursuant to the plan if
the plan meets the following criteria:
(a) The cost recovery plan shall set rates for each customer
class, rate schedule, contract, or tariff option, at levels equal to
the level as shown on electric rate schedules as of June 10, 1996,
provided that rates for residential and small commercial customers
shall be reduced so that these customers shall receive rate
reductions of no less than 10 percent for 1998 continuing through
2002. These rate levels for each customer class, rate schedule,
contract, or tariff option shall remain in effect until the earlier
of March 31, 2002, or the date on which the commission-authorized
costs for utility generation-related assets and obligations have been
fully recovered. The electrical corporation shall be at risk for
those costs not recovered during that time period. Each utility
shall amortize its total uneconomic costs, to the extent possible,
such that for each year during the transition period its recorded
rate of return on the remaining uneconomic assets does not exceed its
authorized rate of return for those assets. For purposes of
determining the extent to which the costs have been recovered, any
over-collections recorded in Energy Costs Adjustment Clause and
Electric Revenue Adjustment Mechanism balancing accounts, as of
December 31, 1996, shall be credited to the recovery of the costs.
(b) The cost recovery plan shall provide for identification and
separation of individual rate components such as charges for energy,
transmission, distribution, public benefit programs, and recovery of
uneconomic costs. The separation of rate components required by this
subdivision shall be used to ensure that customers of the electrical
corporation who become eligible to purchase electricity from
suppliers other than the electrical corporation pay the same
unbundled component charges, other than energy, that a bundled
service customer pays. No cost shifting among customer classes, rate
schedules, contract, or tariff options shall result from the
separation required by this subdivision. Nothing in this provision
is intended to affect the rates, terms, and conditions or to limit
the use of any Federal Energy Regulatory Commission-approved contract
entered into by the electrical corporation prior to the effective
date of this provision.
(c) In consideration of the risk that the uneconomic costs
identified in Section 367 may not be recoverable within the period
identified in subdivision (a) of Section 367, an electrical
corporation that, as of December 20, 1995, served more than four
million customers, and was also a gas corporation that served less
than four thousand customers, shall have the flexibility to employ
risk management tools, such as forward hedges, to manage the market
price volatility associated with unexpected fluctuations in natural
gas prices, and the out-of-pocket costs of acquiring the risk
management tools shall be considered reasonable and collectible
within the transition freeze period. This subdivision applies only
to the transaction costs associated with the risk management tools
and shall not include any losses from changes in market prices.
(d) In order to ensure implementation of the cost recovery plan,
the limitation on the maximum amount of cost recovery for nuclear
facilities that may be collected in any year adopted by the
commission in Decision 96-01-011 and Decision 96-04-059 shall be
eliminated to allow the maximum opportunity to collect the nuclear
costs within the transition cap period.
(e) As to an electrical corporation that is also a gas corporation
serving more than four million California customers, so long as any
cost recovery plan adopted in accordance with this section satisfies
subdivision (a), it shall also provide for annual increases in base
revenues, effective January 1, 1997, and January 1, 1998, equal to
the inflation rate for the prior year plus two percentage points, as
measured by the consumer price index. The increase shall do both of
the following:
(1) Remain in effect pending the next general rate case review,
which shall be filed not later than December 31, 1997, for rates that
would become effective in January 1999. For purposes of any
commission-approved performance-based ratemaking mechanism or general
rate case review, the increases in base revenue authorized by this
subdivision shall create no presumption that the level of base
revenue reflecting those increases constitute the appropriate
starting point for subsequent revenues.
(2) Be used by the utility for the purposes of enhancing its
transmission and distribution system safety and reliability,
including, but not limited to, vegetation management and emergency
response. To the extent the revenues are not expended for system
safety and reliability, they shall be credited against subsequent
safety and reliability base revenue requirements. Any excess
revenues carried over shall not be used to pay any monetary sanctions
imposed by the commission.
(f) The cost recovery plan shall provide the electrical
corporation with the flexibility to manage the renegotiation,
buy-out, or buy-down of the electrical corporation's power purchase
obligations, consistent with review by the commission to assure that
the terms provide net benefits to ratepayers and are otherwise
reasonable in protecting the interests of both ratepayers and
shareholders.
(g) An example of a plan authorized by this section is the
document entitled "Restructuring Rate Settlement" transmitted to the
commission by Pacific Gas and Electric Company on June 12, 1996.
SEC. 126. Section 489.1 of the Public Utilities Code is amended to
read:
489.1. (a) This section applies to contracts executed by gas
corporations in instances in which the corporations are precluded
from shifting to any other customers any loss of revenue as measured
against filed rates and tariffs. To encourage fair competition, the
commission may, by rule or order, partially or completely exempt,
from the requirements of subdivision (a) of Section 489, contracts
negotiated by the gas corporations for service subject to the
commission's jurisdiction, with rates, terms, or conditions differing
from the schedules on file with the commission. To provide general
guidance to the public and to minimize administration adjudications,
the commission shall adopt and enforce rules, on or before July 1,
1997, on gas utilities contract confidentiality that consider, among
other issues, the impact of supply contact confidentiality on
competitive markets and customers and that require both of the
following:
(1) Reasonable comparability between contract disclosure
requirements applicable to gas corporations and those applicable to
competitors pursuant to federal law.
(2) The disclosure of information that may be reasonably necessary
to permit auditing and collection of fees and taxes.
(b) If, due to inadequate resources, the commission has not issued
the rules pursuant to subdivision (a) within the time required, in
any order exempting a contract from public inspection, partially or
completely, the commission shall require the disclosures set forth in
paragraphs (1) and (2) of subdivision (a) as are relevant.
(c) Upon request by a person, and a finding by the commission that
the public benefit from the disclosure of additional specific
information regarding a particular contract would outweigh the
interests of the gas corporation and customer in confidentiality, the
commission may order disclosure of the additional contract
information subject to the conditions and limitations that the
commission may establish. However, the commission shall allow
representatives of residential customers of the gas corporation, who
are not competitors of the gas corporation and have not previously
violated a nondisclosure agreement, to inspect the contracts subject
to a nondisclosure agreement.
(d) Notwithstanding subdivisions (a), (b), and (c), to ensure
compliance with Section 454.4, this section does not apply to
contracts between gas utilities and electrical corporations. These
contracts shall continue to be subject to commission policy and its
rules of practice and procedure. However, no less information shall
be made publicly available regarding these contracts than would
otherwise be made available pursuant to this section.
(e) This section 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.
SEC. 127. Section 740.4 of the Public Utilities Code is amended to
read:
740.4. (a) The commission shall authorize public utilities to
engage in programs to encourage economic development.
(b) Reasonable expenses for economic development programs, as
specified in this section, shall be allowed, to the extent of
ratepayer benefit, when setting rates to be charged by public
utilities electing to initiate these programs.
(c) Economic development activities may include, but not be
limited to, the following:
(1) Community marketing and development.
(2) Technical assistance to support technology transfer.
(3) Market research.
(4) Site inventories.
(5) Industrial and commercial expansion and relocation assistance.
(6) Business retention and recruitment.
(7) Management assistance.
(d) This section shall not be interpreted to permit the funding of
economic development activities that benefit any affiliated
companies or parent holding companies beyond that which is authorized
by law as of January 1, 1992.
(e) (1) This section does not authorize the commission to
establish discriminatory rates for the purpose of attracting or
benefiting specific industries or business entities, except that
incentives may be provided for the benefit of industries or business
entities whose facilities are located within the boundaries of
enterprise zones, economic incentive areas, recycling market
development zones, or federal rural enterprise communities in
accordance with the provisions of Chapter 12.8 (commencing with
Section 7070) and Article 1 (commencing with Section 7080) of Chapter
12.9 of Division 7 of Title 1 of the Government Code, and Article 2
(commencing with Section 42145) of Chapter 3 of Part 3 of the Public
Resources Code.
(2) The commission may apply the incentives authorized by this
subdivision that benefit industries or business entities whose
facilities are located within the boundaries of economic enterprise
zones or incentive areas to attract a federal Department of Defense
Finance and Accounting Service Center at the existing site of Norton
Air Force Base in San Bernardino County. This paragraph shall become
inoperative if the federal Department of Defense Finance and
Accounting Service Center is not located upon the premises known as
Norton Air Force Base in San Bernardino County and shall also become
inoperative on February 1, 1994, if that facility has not been
awarded to that site before that date.
(f) The commission may provide incentives pursuant to subdivision
(e) to industries or business entities whose facilities are located
within the boundaries of an enterprise zone that engage in activities
in connection with the conversion of Fort Ord to other uses.
(g) The commission may authorize rate discounts to industries or
business entities whose facilities are located or will be located
within the boundaries of enterprise zones, recycling market
development zones, or economic incentive areas pursuant to paragraph
(1) of subdivision (e). These discounts may be applied in either of
the following ways:
(1) Utilities may apply reduced monthly rates to qualifying
customers' monthly utility bills.
(2) Utilities may, at the election of qualifying customers, assign
the discounts to a private or public entity that returns
consideration of like value to those customers, provided the
customers agree to maintain their facilities in an enterprise zone, a
recycling market development zone, or an economic incentive area for
a minimum of five years from the date of commencement of the
discount.
(h) It is the intent of the Legislature that the Public Utilities
Commission, in implementing this chapter, shall allow rate recovery
of expenses and rate discounts supporting economic development
programs within the geographic area served by any public utility to
the extent the utility incurring or proposing to incur those expenses
and rate discounts demonstrates that the ratepayers of the public
utility will derive a benefit from those programs. Further, it is
the intent of the Legislature that expenses for economic development
programs incurred prior to the effective date of this chapter, which
have not been previously authorized to be recovered in rates, shall
not be subject to rate recovery.
SEC. 128. Section 5322 of the Public Utilities Code is amended to
read:
5322. (a) The Legislature finds and declares that advertisement
and use of telephone service is essential for household goods
carriers to obtain business and conduct intrastate moving services.
The unlawful advertisement by unlicensed household goods carriers has
required properly licensed and regulated household goods carriers to
compete with unlicensed household goods carriers using unfair
business practices. Unlicensed household goods carriers have also
exposed citizens of the State of California to unscrupulous persons
who portray themselves as properly licensed, qualified, and insured
household goods carriers. Many of these unlicensed household goods
carriers have been found to have perpetrated acts of theft, fraud,
and dishonesty upon unsuspecting citizens of the State of California.
(b) The Legislature finds and declares that the termination of
telephone service utilized by unlicensed household goods carriers is
essential to ensure the public safety and welfare. Therefore, the
commission should take enforcement action as specified in this
section to disconnect telephone service of unlicensed household goods
carriers who unlawfully advertise moving services in yellow page
directories and other publications. The enforcement action provided
for by this section is consistent with the decision of the Supreme
Court of the State of California in Goldin, et al. v. Public
Utilities Commission et al., 23 Cal. 3d 638.
(c) Any telephone utility operating under the jurisdiction of the
commission shall refuse telephone service to a new customer and shall
disconnect telephone service of an existing customer only after it
is shown that other available enforcement remedies of the commission
have failed to terminate unlawful activities detrimental to the
public welfare and safety, and upon receipt from any authorized
official of the commission of a writing, signed by a magistrate, as
defined by Sections 807 and 808 of the Penal Code, finding that
probable cause exists to believe that the customer is advertising or
holding out to the public to perform, or is performing, household
goods carrier services without having in force a permit issued by the
commission authorizing those services, or that the telephone service
otherwise is being used or is to be used as an instrumentality,
directly or indirectly, to violate or to assist in violation of the
laws requiring a household goods carrier permit. Included in the
writing of the magistrate shall be a finding that there is probable
cause to believe that the subject telephone facilities have been or
are to be used in the commission or facilitation of holding out to
the public to perform, or in performing, household goods carrier
services without having in force a permit issued by the commission
authorizing those services, and that, absent immediate and summary
action, a danger to public welfare or safety will result.
(d) Any person aggrieved by any action taken pursuant to this
section shall have the right to file a complaint with the commission
and may include therein a request for interim relief. The commission
shall schedule a public hearing on the complaint to be held within
21 calendar days of the filing and assignment of a docket number to
the complaint. The remedy provided by this section shall be
exclusive. No other action at law or in equity shall accrue against
any telephone utility because of, or as a result of, any matter or
thing done or threatened to be done pursuant to this section.
(e) At any hearing on complaint pursuant to subdivision (d), the
commission staff shall have the right to participate, including the
right to present evidence and argument and to present and
cross-examine witnesses. The commission staff shall have both the
burden of providing that the use made or to be made of the telephone
service is to hold out to the public to perform, or to assist in
performing, services as a household goods carrier, or that the
telephone service is
being or is to be used as an instrumentality, directly or indirectly,
to violate or to assist in violation of the licensing laws as
applicable to household goods carriers and that the character of the
acts is such that, absent immediate and summary action, a danger to
public welfare or safety will result, and the burden of persuading
the commission that the telephone services should be refused or
should not be restored.
(f) The telephone utility, immediately upon refusal or
disconnection of service in accordance with subdivision (c), shall
notify the customer or subscriber in writing that the refusal or
disconnection of telephone service has been made pursuant to a
request of the commission and the writing of a magistrate, and shall
include with the notice a copy of this section, a copy of the writing
of the magistrate, and a statement that the customer or subscriber
may request information from the commission at its San Francisco or
Los Angeles office concerning any provision of this section and the
manner in which a complaint may be filed.
(g) Each contract for telephone service, by operation of law,
shall be deemed to contain the provisions of this section. The
provisions shall be deemed to be a part of any application for
telephone service. Applicants and customers for telephone service
shall be deemed to have consented to the provisions of this section
as a consideration for the furnishing of the service.
(h) The terms "person," "customer," and "subscriber," as used in
this section, include a subscriber to telephone service, an applicant
for that service, a corporation, a company, a partnership, an
association, and an individual.
(i) The term "telephone utility," as used in this section,
includes a "telephone corporation" and a "telegraph corporation," as
defined in Division 1 (commencing with Section 201).
(j) The term "authorized official," as used in this section,
includes the Director of the Safety and Enforcement Division of the
Public Utilities Commission or any commission employee designated
pursuant to paragraph (5) of subdivision (a) of Section 830.11 of the
Penal Code.
SEC. 129. Section 125105 of the Public Utilities Code is amended
to read:
125105. The board shall:
(a) Acquire, construct, maintain, and operate (or let a contract
to operate) public transit systems and related facilities.
(b) Adopt an annual budget and fix the compensation of its
officers and employees.
(c) Adopt an administrative code, by ordinance, that prescribes
the powers and duties of board officers, the method of appointment of
board employees, and methods, procedures, and systems of operation
and management of the board.
(d) Cause a postaudit of the financial transactions and records of
the board to be made at least annually by a certified public
accountant.
(e) Appoint advisory commissions as it deems necessary.
(f) Do any and all things necessary to carry out the purposes of
this division, including, but not limited to, adopting all ordinances
and making all rules and regulations proper or necessary to regulate
the use, operation, and maintenance of its property and facilities,
including its public transit systems and related transportation
facilities and services operating within its area of jurisdiction and
those areas beyond the board's jurisdiction served by the board
pursuant to contract or memorandum of agreement with another transit
agency, and to carry into effect the powers granted to the board.
SEC. 130. Section 69.5 of the Revenue and Taxation Code, as
amended by Section 1 of Chapter 897 of the Statutes of 1996, 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 paragraph (1), the limitation in that
paragraph requiring that the original property and the replacement
dwelling be located in the same county does 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
applies in a county only if the ordinance adopted by the board of
supervisors complies with the following requirements:
(A) The ordinance is adopted only after consultation between the
board of supervisors and all other local affected agencies within the
county's boundaries.
(B) The ordinance 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) The ordinance 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), a
person must meet all of the following conditions in order to be
eligible for the property tax relief provided by this section:
(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, which portion of land, pursuant to
paragraph (3) of subdivision (g), constitutes a part of the
replacement dwelling.
(6) (A) For purposes of paragraph (1) of subdivision (a), the
replacement dwelling, including that portion of land on which it is
situated as specified in paragraph (5), is located entirely within
the same county as the claimant's original property.
(B) For purposes of paragraph (2) of subdivision (a), the
replacement dwelling, including that portion of the land on which it
is situated as specified in paragraph (5), is located entirely within
the county.
(7) The claimant has not previously been granted, as a claimant,
the property tax relief provided by this section, except that this
paragraph does 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 as 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 is subject to the limitations specified in
subdivision (d).
(d) The property tax relief provided by this section is available
to a claimant who is the coowner of the 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 shall be deemed
eligible.
In the case of coowners whose original property is a multiunit
dwelling, the limitations imposed by paragraphs (2) and (3) apply
only 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 does 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 is not 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 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 and 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, and, if the original property is located within
another county, the name of the county or counties and, if
applicable, city or cities in which the original property is located.
(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.
(6) If the original property and the replacement dwelling are
located in different counties, the base year value of the original
property determined by the assessor of the county in which the
original property is located.
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 holds either a leasehold
interest described in subdivision (c) of Section 61 or a land
purchase contract. Each unit of a multiunit dwelling is 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 no portion of the property is used for
commercial purposes. "Commercial purposes" does not include
activities that are 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 holds either a leasehold interest described
in subdivision (c) of Section 61 or a land purchase contract. Each
unit of a multiunit dwelling is 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 no
portion of the property is used for commercial purposes. "Commercial
purposes" does not include activities that are 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 either of the following conditions
is met:
(i) The replacement dwelling is purchased or newly constructed
within the second year following the date of the sale of the original
property.
(ii) The replacement dwelling is purchased or newly constructed on
or after November 5, 1986, and on or before January 1, 1988, and
within two years 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 shall also be deemed a
claimant for purposes of determining whether the condition of
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) "Consultation" means a noticed hearing conducted by a county
board of supervisors concerning the adoption of an ordinance
described in paragraph (2) of subdivision (a) and with respect to
which all local affected agencies within the boundaries of the county
are provided with reasonable notice of the time and place of the
hearing and a reasonable opportunity to appear and participate at the
hearing.
(12) "Local affected agency" means any city, special district,
school district, or community college district that receives an
annual property tax revenue allocation.
(13) "Person" means any individual, but does not include any firm,
partnership, association, corporation, company, or other legal
entity or organization of any kind.
(14) "Severely and permanently disabled person" 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),
applies to any replacement dwelling that is purchased or newly
constructed on or after November 5, 1986.
(2) With respect to the transfer of base year value of original
properties to replacement dwellings located in different counties,
this section, except as provided in paragraph (3), applies 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 does 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 applies only to
replacement dwellings that are purchased or newly constructed on or
after June 6, 1990.
(4) The amendments made to subdivision (e) by Chapter 1180 of the
Statutes of 1992 apply only to replacement dwellings under Section 69
that are acquired or newly constructed on or after October 20, 1991,
and apply commencing with the 1991-92 fiscal year.
(k) This section shall remain in effect only until January 1,
1999, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 1999, deletes or extends
that date.
SEC. 131. Section 69.5 of the Revenue and Taxation Code, as
amended by Section 2 of Chapter 897 of the Statutes of 1996, is
repealed.
SEC. 132. Section 69.5 is added to the Revenue and Taxation Code,
to read:
69.5. (a) 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.
(b) In addition to meeting the requirements of subdivision (a), a
person must meet all of the following conditions in order to be
eligible for claiming the property tax relief provided by this
section:
(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 as 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 does 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 as 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 is subject to the limitations specified in
subdivision (d).
(d) The property tax relief provided by this section is 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) apply
only 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 does 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 and 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 holds either a leasehold
interest described in subdivision (c) of Section 61 or a land
purchase contract. Each unit of a multiunit dwelling is 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 no portion of the property is used for
commercial purposes. "Commercial purposes" does not include
activities that are 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 holds either a leasehold interest described
in subdivision (c) of Section 61 or a land purchase contract. Each
unit of a multiunit dwelling is 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 no
portion of the property is used for commercial purposes. "Commercial
purposes" does not include activities that are 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 may 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) This section, except as provided in paragraph (2) or (3),
applies 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 by a severely
and permanently disabled person, this section applies only to
replacement dwellings that are purchased or newly constructed on or
after June 6, 1990.
(3) The amendments made to subdivision (e) by Chapter 1180 of the
Statutes of 1992 apply only to replacement dwellings under Section 69
that are acquired or newly constructed on or after October 20, 1991,
and applies commencing with the 1991-92 fiscal year.
(k) This section shall become operative on January 1, 1999.
SEC. 133. Section 401.10 of the Revenue and Taxation Code, as
added by Chapter 76 of the Statutes of 1996, is repealed.
SEC. 134. Section 401.11 of the Revenue and Taxation Code is
amended to read:
401.11. (a) Notwithstanding any other provision of law, refunds
or payments of taxes, where applicable, for intercounty pipeline
right-of-way property that is subject to local assessment pursuant to
the decision in Southern Pacific Pipe Lines, Inc. v. State Board of
Equalization (1993) 14 Cal. App. 4th 42, shall be treated as follows
for taxpayers and tax years described below:
(1) The tax refund claims that are subject to this subdivision are
the tax refund claims for the following taxpayers and tax years:
(A) Tax refund claims of any taxpayer who was a plaintiff in
Southern Pacific Pipe Lines, Inc. v. State Board of Equalization
(1993) 14 Cal. App. 4th 42, for tax years 1984-85 to 1996-97,
inclusive, that were not included in the judgment for the taxpayer.
(B) Tax refund claims of any taxpayer who was not a plaintiff in
Southern Pacific Pipe Lines, Inc. v. State Board of Equalization
(1993) 14 Cal. App. 4th 42, for tax years 1989-90 to 1996-97,
inclusive.
(2) If taxes due on local assessments, as calculated under Section
401.10, are less than the total taxes paid by the taxpayer for that
year, based on either the original State Board of Equalization
assessments or escape assessments made by the local assessor, or
both, the county shall refund the difference. Simple interest at the
rate of 8 percent shall be paid by the county on any overpayment for
the period from the date of the tax payment resulting in the
overpayment through
December 31, 1992. Simple interest at the county's pool apportioned
rate shall be paid by the county on any overpayment for the period
from January 1, 1993, through the date which is 45 days prior to
payment in full. No interest shall be payable for the 45-day period
immediately prior to payment in full. For purposes of this
subdivision, payment shall be deemed to be timely if made 45 days
after the effective date of this section.
(3) If payment of any taxes due under this subdivision is made
within 45 days of billing by the tax collector for payment, the
county may not impose late payment penalties or interest. Taxes not
paid within 45 days of billing by the tax collector shall become
delinquent at that time, and the delinquent penalty, redemption
penalty, or other collection provisions of this code shall thereafter
apply.
(b) Notwithstanding any other provision of law, the judgment
obligation of each judgment debtor under the judgment entered in
Southern Pacific Pipe Lines, Inc. v. State Board of Equalization
(1993) 14 Cal. App. 4th 42 shall be deemed fully satisfied with
respect to a judgment creditor if a debtor county makes timely
payment to that judgment creditor of the amount calculated pursuant
to this subdivision. For purposes of this subdivision, a payment
shall be deemed to be timely if made 45 days after the effective date
of this section. For purposes of this subdivision, the amount that
shall be paid to satisfy the judgment is the total of the amounts
awarded to the judgment creditor against the debtor county in
paragraphs 5, 6, 7, and 8 of the judgment entered in Southern Pacific
Pipe Lines, Inc. v. State Board of Equalization (1993) 14 Cal. App.
4th 42, together with postjudgment interest thereon, except that no
interest shall be due for the 45-day period immediately prior to
payment in full. For purposes of this subdivision, postjudgment
interest shall be calculated at 7 percent, except that postjudgment
interest shall be calculated at the county's then effective county
pool apportioned rate for the following periods of time: July 1,
1993, to April 30, 1994, inclusive; and January 1, 1995, until 45
days prior to the date of payment in full.
(c) Any refund or billing for payment made pursuant to this
section may be made on the basis of a single, countywide parcel per
taxpayer as described in Section 401.8.
(d) This section shall remain in effect only until January 1,
2000, and, as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2000, deletes or extends
that date.
SEC. 135. Section 410.10 of the Revenue and Taxation Code is
amended and renumbered to read:
401.10. (a) Notwithstanding any other provision of law relating
to the determination of the values upon which property taxes are
based, values for each tax year from the 1984-85 tax year to the
2000-01 tax year, inclusive, for intercounty pipeline rights-of-way
on publicly or privately owned property, including those
rights-of-way that are the subject of a change in ownership, new
construction, or any other reappraisable event during the period from
March 1, 1975, to June 30, 2001, inclusive, shall be rebuttably
presumed to be at full cash value for that year, if all of the
following conditions are met:
(1) (A) The full cash value is determined to equal a 1975-76 base
year value, annually adjusted for inflation in accordance with
subdivision (b) of Section 2 of Article XIIIA of the California
Constitution, and the 1975-76 base year value was determined in
accordance with the following schedule:
(i) Twenty thousand dollars ($20,000) per mile for a high density
property.
(ii) Twelve thousand dollars ($12,000) per mile for a transitional
density property.
(iii) Nine thousand dollars ($9,000) per mile for a low density
property.
(B) For purposes of this section, the density classifications
described in subparagraph (A) are defined as follows:
(i) "High density" means Category 1 (densely urban) as established
by the State Board of Equalization.
(ii) "Transitional density" means Category 2 (urban) as
established by the State Board of Equalization.
(iii) "Low density" means Category 3 (valley-agricultural),
Category 4 (grazing), and Category 5 (mountain and desert) as
established by the State Board of Equalization.
(2) The full cash value is determined utilizing the same property
density classifications that were assigned to the property by the
State Board of Equalization for the 1984-85 tax year or, if density
classifications were not so assigned to the property for the 1984-85
tax year, the density classifications that were first assigned to the
property by the board for a subsequent tax year.
(3) (A) If a taxpayer owns multiple pipelines in the same
right-of-way, an additional 50 percent of the value attributed to the
right-of-way for the presence of the first pipeline, as determined
under paragraphs (1) and (2), shall be added for the presence of each
additional pipeline up to a maximum of two additional pipelines.
For any particular taxpayer, the total valuation for a multiple
pipeline right-of-way shall not exceed 200 percent of the value
determined for the right-of-way of the first pipeline in the
right-of-way in accordance with paragraphs (1) and (2).
(B) If the State Board of Equalization has determined that an
intercounty pipeline, located within a multiple pipeline right-of-way
previously valued in accordance with subparagraph (A), has been
abandoned as a result of physical removal or blockage, the assessed
value of the right-of-way attributable to the last pipeline enrolled
in accordance with subparagraph (A) shall be reduced by not less that
75 percent of that increase in assessed value that resulted from the
application of subparagraph (A).
(4) If all pipelines of a taxpayer located within the same
pipeline right-of-way, previously valued in accordance with this
section, are determined by the State Board of Equalization to have
been abandoned as the result of physical removal or blockage, the
assessed value of that right-of-way to that taxpayer shall be
determined to be no more than 25 percent of the assessed value
otherwise determined for the right-of-way for a single pipeline of
that taxpayer pursuant to paragraphs (1) and (2).
(b) If the assessor assigns values for any tax year from the
1984-85 tax year to the 2000-01 tax year, inclusive, in accordance
with the methodology specified in subdivision (a), the taxpayer's
right to assert any challenge to the right to assess that property,
whether in an administrative or judicial proceeding, shall be deemed
to have been raised and resolved for that tax year and the values
determined in accordance with that methodology shall be rebuttably
presumed to be correct. If the assessor assigns values for any tax
year from the 1984-85 tax year to the 2000-01 tax year, inclusive, in
accordance with the methodology specified in subdivision (a), any
pending taxpayer lawsuit that challenges the right to assess the
property shall be dismissed by the taxpayer with prejudice as it
applies to intercounty pipeline rights-of-way.
(c) Notwithstanding any change in ownership, new construction, or
decline in value occurring after March 1, 1975, if the assessor
assigns values for rights-of-way for any tax year from the 1984-85
tax year to the 2000-01 tax year, inclusive, in accordance with the
methodology specified in subdivision (a), the taxpayer may not
challenge the right to assess that property and the values determined
in accordance with that methodology shall be rebuttably presumed to
be correct for that property for that tax year.
(d) Notwithstanding any change in ownership, new construction, or
decline in value occurring after March 1, 1975, if the assessor does
not assign values for rights-of-way for any tax year from the 1984-85
tax year to the 2000-01 tax year, inclusive, at the 1975-76 base
year values specified in subdivision (a), any assessed value that is
determined on the basis of valuation standards that differ, in whole
or in part, from those valuation standards set forth in subdivision
(a) shall not benefit from any presumption of correctness, and the
taxpayer may challenge the right to assess that property or the
values for that property for that tax year. As used herein, a
challenge to the right to assess shall include any assessment appeal,
claim for refund, or lawsuit asserting any right, remedy, or cause
of action relating to or arising from, but not limited to, the
following or similar contentions:
(1) That the value of the right-of-way is included in the value of
the underlying fee or railroad right-of-way.
(2) That assessment of the value of the right-of-way to the owner
of the pipeline would result in double assessment.
(3) That the value of the right-of-way may not be assessed to the
owner of the pipeline separately from the assessment of the value of
the underlying fee.
(e) Notwithstanding any other provision of law, during a four-year
period commencing on the effective date of this section, the
assessor may issue an escape assessment in accordance with the
specific valuation standards set forth in subdivision (a) for the
following taxpayers and tax years:
(1) Any intercounty pipeline right-of-way taxpayer who was a
plaintiff in Southern Pacific Pipe Lines, Inc. v. State Board of
Equalization (1993) 14 Cal. App. 4th 42, for the tax years 1984-85 to
1996-97, inclusive.
(2) Any intercounty pipeline right-of-way taxpayer who was not a
plaintiff in Southern Pacific Pipe Lines, Inc. v. State Board of
Equalization (1993) 14 Cal. App. 4th 42, for the tax years 1989-90 to
1996-97, inclusive.
(f) Any escape assessment levied under subdivision (e) shall not
be subject to penalties or interest under the provisions of Section
532. If payment of any taxes due under this section is made within
45 days of demand by the tax collector for payment, the county shall
not impose any late payment penalty or interest. Taxes not paid
within 45 days of demand by the tax collector shall become delinquent
at that time, and the delinquent penalty, redemption penalty, or
other collection provisions of this code shall thereafter apply.
(g) For purposes of this section, "intercounty pipeline
right-of-way" means, except as otherwise provided in this
subdivision, any interest in publicly or privately owned real
property through which or over which an intercounty pipeline is
placed. However, "intercounty pipeline right-of-way" does not
include any parcel or facility that the State Board of Equalization
originally separately assessed using a valuation method other than
the multiplication of pipeline length within a subject property by a
unit value determined in accordance with the density category of that
subject property.
(h) This section shall remain in effect only until January 1,
2001, and, as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2001, deletes or extends
that date.
SEC. 136. Section 2188.8 of the Revenue and Taxation Code is
amended to read:
2188.8. (a) Whenever the assessor receives a written request for
separate assessment of time-share estates in a time-share project, as
defined in Section 11003.5 of the Business and Professions Code and
as specified in subdivision (h) of this section, the assessor shall,
on the first lien date that occurs more than 60 days following the
request, and on each lien date thereafter, separately assess each
time-share estate in the project if the assessor determines that the
conditions specified in subdivision (c) have been met. Whenever
estates in a time-share project are separately assessed, they shall
continue to be separately assessed in subsequent fiscal years and,
once a request for separate assessment is made with respect to a
project, it is binding on all future time-share estate owners.
(b) The interest that is to be separately assessed is the value of
the right of recurrent, exclusive use or occupancy of real property,
annually or on some other periodic basis, for a specific period of
time that has been, or will be, allotted from the use or occupancy
periods into which the project has been divided.
(c) The separate assessment of a time-share estate may not be made
by the assessor unless both of the following occur:
(1) The person making the request certifies that the request for
separate assessment has been approved in the manner provided in the
organizational documents of the organization involved for approval of
matters affecting the affairs of the organization generally.
(2) A diagrammatic floor plan of the improvements, a copy of the
documents setting forth the procedures for scheduling time and units
to each time-share estate owner, and a list of every time-share
estate owner, with a date notation thereon showing when, according to
the organization's records, each time-share estate was acquired,
have been filed with the assessor. A plot map of the land showing
the location of the improvements on the land need not be filed unless
requested by the assessor. The organization shall file an annual
statement for each succeeding assessment year, on or before April 1,
with the assessor setting forth any changes to the required
information known to the organization. The list or other information
provided pursuant to this section is not a public document and shall
not be open to public inspection, except as provided in Section 408.
(d) Notwithstanding subdivision (c), this section shall not be
construed to require any person making a request for separate
assessment to meet the requirements of the Subdivision Map Act, nor
shall the approval of any governmental agency be required for
separate assessment.
(e) The tax on a time-share estate that is separately assessed
pursuant to this section shall be a lien solely on the time-share
estate and shall be entered on and be subject to all provisions of
law applicable to taxes on the secured roll, provided:
(1) If the taxes on any time-share estate that is separately
assessed remain unpaid at the time set for declaration of default for
delinquent taxes, the taxes on the time-share estate, together with
any penalties and costs that may have accrued thereon while on the
secured roll, may be transferred to the unsecured roll.
(2) Defaulted time-share estate taxes remaining unpaid on any
prior year secured tax roll may be transferred to the unsecured roll
and collected like any other tax on the unsecured roll.
(f) The assessor shall provide to the principal office of each
time-share project within the taxing jurisdiction, at the time and in
the manner as he or she deems appropriate, adequate notice of the
provisions of this section and other pertinent information relative
to the implementation thereof.
(g) The county may charge a fee for processing an application for
separate assessment and for the initial and the ongoing costs, not to
exceed the actual cost, of the separate assessment and billing, and
mailings, with respect to a time-share project. This fee is subject
to Chapter 12.5 (commencing with Section 54985) of Part 1 of Division
2 of Title 5 of the Government Code, and shall be proportionately
allocated to each of the time-share estate owners. This fee may be
collected commencing with the initial separate tax bills, and on
subsequent tax bills, and deposited in the county's general fund.
(h) For purposes of this section, "time-share estate" applies to
time-share estates, as defined in Section 11003.5 of the Business and
Professions Code, that include a fee simple interest in the
underlying property involved. However, "time-share estate" does not
include time-share estates that are coupled with a leasehold interest
or an estate for years.
(i) Notwithstanding subdivision (a), when the assessor receives a
written request to terminate the separate assessment of time-share
estates in a time-share project under subdivision (a), the assessor
shall, on the first lien date that occurs more than 60 days following
the request, and on each lien date thereafter, prepare a single
assessment for all time-share estates in the project. In order to
obtain a single assessment, the person making the request shall
provide certification that the request for a single consolidated
assessment has been approved in the manner provided in the
organization's documents. The person making the request shall also
state the name and address of that organization as the organization
to receive the single consolidated assessment. On the first lien
date, and continuing thereafter, the county shall assess the
time-share project. Any lien for taxes shall attach as if the
election previously made under subdivision (a) had not been made, and
the county shall no longer charge the fees described in subdivision
(g).
SEC. 137. Section 2611.7 of the Revenue and Taxation Code is
amended to read:
2611.7. (a) Upon the written request of a taxpayer made no later
than September 1, a tax collector who has adopted this section
pursuant to paragraph (4) of subdivision (c) shall, subject to
subdivisions (b) and (c), issue a consolidated tax statement, for all
of the properties entered on the secured roll with respect to which
the requesting taxpayer is the assessee. An adopting tax collector
shall annually print on the back of each property tax bill a written
notice to each taxpayer of a taxpayer's authority under this section
to request a consolidated tax statement, and of those fees,
requirements, conditions, and limitations specified in subdivisions
(b) and (c).
(b) Any request made pursuant to this section for a consolidated
tax statement is subject to all of the following conditions:
(1) The request shall specify the assessor's parcel number of each
property on the secured roll for which the requesting taxpayer is
the assessee.
(2) With respect to any single parcel, only one named assessee may
request and receive a consolidated tax statement.
(3) Any request that is timely made pursuant to this section for a
consolidated tax statement is valid only for those property taxes
levied for the first five fiscal years following the making of the
request.
(c) (1) The tax collector may charge a fee for each request for a
consolidated tax statement made pursuant to this section. Any fee
charged pursuant to this paragraph shall be set at an amount not
greater than that amount that will allow the tax collector to recover
his or her costs incurred in implementing this section.
(2) A consolidated tax statement issued pursuant to a request made
pursuant to this section is not a tax bill and does not supersede or
take the place of any tax bill.
(3) No tax collector shall incur any legal liability with respect
to any consolidated tax statement provided by the tax collector
pursuant to this section.
(4) This section does not apply to a county unless the tax
collector of that county has adopted this section pursuant to a
written memorandum transmitted to the county board of supervisors and
recorded with the county recorder.
SEC. 138. Section 4528 of the Revenue and Taxation Code is amended
to read:
4528. (a) (1) The tax collector may sell tax certificates by any
form of public or private sale, including, but not limited to, an
auction, a negotiated sale, or a bulk sale. Except as provided in
subdivision (c), the price received for a tax certificate shall not
be less than the amount of taxes and assessments being assigned
thereby. Prior to any sale of any tax certificates, the tax
collector shall do all of the following:
(A) Determine the size of the offering and the parcels to be
included in the sale.
(B) Determine the fees necessary to conduct the sale and maintain
adequate tax certificate records.
(C) Establish rules and procedures for the making of offers on any
tax certificate.
(D) Publish the determinations, fees, rules, and procedures
described in this paragraph.
(E) Make these determinations, fees, rules, and procedures
available to any person upon request.
(2) The tax collector has the right to accept or reject any or all
bids in his or her sole discretion, subject to the determinations,
fees, rules, and procedures described in paragraph (1).
(b) Except as provided in subdivision (c), the tax collector may
not sell a tax certificate if any of the following apply:
(1) The parcel is not on the secured roll or supplemental roll.
(2) The parcel is owned by a governmental agency.
(3) The total amount of taxes and assessments to be assigned
thereby is less than one hundred dollars ($100), unless the parcel is
included in a bulk sale.
(4) The parcel has a recorded public notice concerning pollution
or contamination to the degree that the parcel poses a public health
concern or environmental hazard.
(5) The parcel was subject to a proceeding in federal bankruptcy
court prior to the sale of the tax certificate.
(6) The parcel was subject to any condemnation proceedings prior
to the sale of the tax certificate.
(c) Notwithstanding subdivisions (a) and (b), the tax collector
may sell or resell tax certificates for parcels described in
paragraphs (3), (4), (5), and (6) of subdivision (b), any certificate
subject to the Sailors and Soldiers Relief Act, and for parcels
described in paragraph (5) of subdivision (a) of Section 4527, at a
discount, in accordance with the determinations, fees, rules, and
procedures published by the tax collector.
(d) If, pursuant to Section 4521, the tax collector is required to
offer for sale a tax certificate for which there exists an
outstanding tax certificate for the assignment of taxes and
assessments for a previous year, until the date occurring six months
after the date specified in Section 4521, the tax collector shall
offer to sell the tax certificate to the holder of the outstanding
tax certificate. The tax collector shall notify the holder of the
outstanding tax certificate by certified mail of the default
requiring the issuance of an additional tax certificate with respect
to the same parcel, and of the tax certificate holder's right, until
the date one month after the receipt of this notice, to purchase the
additional certificate on the same terms as the outstanding
certificate. In addition, the holder of the outstanding tax
certificate shall have the right of first refusal to purchase the tax
certificate with respect to the same parcel at the highest bid
amount until all tax certificates with respect to that parcel are
redeemed or canceled. During the six-month period, at the option of
the holder of the most recently issued outstanding tax certificate,
the tax collector shall sell the tax certificate to the holder of the
outstanding tax certificate on the same terms as that outstanding
tax certificate.
SEC. 139. Section 10753 of the Revenue and Taxation Code, as
amended by Section 1 of Chapter 228 of the Statutes of 1996, is
amended to read:
10753. (a) Upon the first sale of a new vehicle to a consumer and
upon each sale of a used vehicle to a consumer, the department shall
determine the market value of the vehicle on the basis of the cost
price to the purchaser as evidenced by a certificate of cost, but not
including California sales or use tax or any local sales,
transactions, use, or other local tax. "Cost price" includes the
value of any modifications made by the seller.
(b) Notwithstanding subdivision (a), the department shall not
redetermine the market value of used vehicles, or modify the vehicle
license fee classification of used vehicles determined pursuant to
Section 10753.1 or 10753.2, when the seller is the parent,
grandparent, child, grandchild, or spouse of the purchaser, and the
seller is not engaged in the business of selling vehicles subject to
registration under the Vehicle Code, or when a lessor, as defined in
Section 372 of the Vehicle Code, transfers title and registration of
a vehicle to the lessee at the expiration or termination of a lease.
(c) (1) In the event any commercial vehicle is modified or
additions are made to the chassis or body at a cost of two thousand
dollars ($2,000) or more, but not including any change of engine of
the same type or any cost of repairs to a commercial vehicle, the
owner of the commercial vehicle shall report any modification or
addition to the department and the department shall classify or
reclassify the commercial vehicle in its proper class as provided in
Section 10753.1 or 10753.2, taking into consideration the increase in
the market value of the commercial vehicle due to those
modifications or additions, and any reclassification resulting in
increase in market value shall be based on the cost to the consumer
of those modifications or additions. In the event any vehicle is
modified or altered resulting in a decrease in the market value
thereof of two hundred dollars ($200) or more as reported to and
determined by the department, the department shall classify or
reclassify the vehicle in its proper class as provided in Section
10753.1 or 10753.2.
(2) Paragraph (1) does not apply under any of the following
conditions:
(A) When the cost of any modification or addition to the chassis
or body of a commercial vehicle is less than two thousand dollars
($2,000).
(B) When the cost is for modifications or additions necessary to
incorporate a system approved by the State Air Resources Board as
meeting the emission standards set forth in subdivisions (a) and (b)
of former Section 39102 and former Section 39102.5 of the Health and
Safety Code as they read on December 31, 1975.
(C) When the cost is for modifications that are necessary to
enable a disabled person to use or operate the vehicle.
(3) For purposes of this subdivision, "commercial vehicle" means a
"commercial vehicle," as defined in Section 260 of the Vehicle Code,
that is regulated by the Department of the Highway Patrol pursuant
to Sections 2813 and 34500 of the Vehicle Code.
(d) This section also applies to a system as specified in
subdivision (c) that is approved by the State Air Resources Board as
meeting the emission standards specified in subdivisions (a) and (b)
of former Section 39102 and former Section 39102.5 of the Health and
Safety Code as they read on December 31, 1975, for vehicles 6,001
pounds or less, manufacturer's gross vehicle weight, controlled to
meet exhaust emission standards when sold new, when that system is
used in any vehicle over 6,001 pounds or any vehicle 6,001 pounds or
less not controlled to meet exhaust emission standards.
(e)
The temporary attachment of any camper, as defined in Section 243 of
the Vehicle Code, to a vehicle is not a modification or addition for
the purposes of subdivision (c).
(f) The attachment to a vehicle of radiotelephone equipment
furnished by a telephone corporation, as defined in Section 234 of
the Public Utilities Code, is not a modification or addition for the
purpose of subdivision (c), when that equipment is not owned by the
owner of the vehicle.
(g) This section shall remain in effect only until January 1,
2000, and as of that date is repealed.
SEC. 140. Section 10753 of the Revenue and Taxation Code, as added
by Section 2 of Chapter 228 of the Statutes of 1996, is amended to
read:
10753. (a) Upon the first sale of a new vehicle to a consumer and
upon each sale of a used vehicle to a consumer, the department shall
determine the market value of the vehicle on the basis of the cost
price to the purchaser as evidenced by a certificate of cost, but not
including California sales or use tax or any local sales,
transactions, use, or other local tax. "Cost price" includes the
value of any modifications made by the seller.
(b) Notwithstanding subdivision (a), the department shall not
redetermine the market value of used vehicles, or modify the vehicle
license fee classification of used vehicles determined pursuant to
Section 10753.1 or 10753.2, when the seller is the parent,
grandparent, child, grandchild, or spouse of the purchaser, and the
seller is not engaged in the business of selling vehicles subject to
registration under the Vehicle Code, or when a lessor, as defined in
Section 372 of the Vehicle Code, transfers title and registration of
a vehicle to the lessee at the expiration or termination of a lease.
(c) (1) In the event any vehicle is modified or additions are made
to the chassis or body at a cost of two hundred dollars ($200) or
more, but not including any change of engine of the same type or any
cost of repairs to a vehicle, the owner of the vehicle shall report
any modification or addition to the department and the department
shall classify or reclassify the vehicle in its proper class as
provided in Section 10753.1 or 10753.2, taking into consideration the
increase in the market value of the vehicle due to those
modifications or additions, and any reclassification resulting in
increase in market value shall be based on the cost to the consumer
of those modifications or additions. In the event any vehicle is
modified or altered resulting in a decrease in the market value
thereof of two hundred dollars ($200) or more as reported to and
determined by the department, the department shall classify or
reclassify the vehicle in its proper class as provided in Section
10753.1 or 10753.2.
(2) Paragraph (1) does not apply to any of the following:
(A) When the cost of any modification or addition to the chassis
or body of a vehicle is less than two hundred dollars ($200).
(B) When the cost is for modifications or additions necessary to
incorporate a system approved by the State Air Resources Board as
meeting the emission standards set forth in subdivisions (a) and (b)
of former Section 39102 and former Section 39102.5 of the Health and
Safety Code as they read on December 31, 1975.
(C) When the cost is for modifications that are necessary to
enable a disabled person to use or operate the vehicle.
(d) This section also applies to a system as specified in
subdivision (c) that is approved by the State Air Resources Board as
meeting the emission standards specified in subdivisions (a) and (b)
of former Section 39102 and former Section 39102.5 of the Health and
Safety Code as they read on December 31, 1975, for vehicles 6,001
pounds or less, manufacturer's gross vehicle weight, controlled to
meet exhaust emission standards when sold new, when that system is
used in any vehicle over 6,001 pounds or any vehicle 6,001 pounds or
less not controlled to meet exhaust emission standards.
(e) The temporary attachment of any camper, as defined in Section
243 of the Vehicle Code, to a vehicle is not a modification or
addition for the purposes of subdivision (c).
(f) The attachment to a vehicle of radiotelephone equipment
furnished by a telephone corporation, as defined in Section 234 of
the Public Utilities Code, is not a modification or addition for the
purpose of subdivision (c), when that equipment is not owned by the
owner of the vehicle.
(g) This section shall become operative on January 1, 2000.
SEC. 141. 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 that 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, 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, 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 banks and 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 bank or corporation subject to this section fails to
maintain or fails to cause another to maintain records as required by
subdivision (a), or willfully fails to comply substantially with
Section 18634 requiring the filing of an information return, that
bank or 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 bank or corporation, that bank or
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
applies 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 bank or 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 bank or 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 bank or corporation that it has not substantially complied.
(D) If the bank or 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 bank or
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 bank or
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 bank or 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 bank or 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 bank or 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 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 bank or 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 bank or 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. 142. Section 19442 of the Revenue and Taxation Code is
amended and renumbered to read:
19432. (a) Any outstanding tax, penalty, interest, or additions
to tax for any bank or corporation that have accumulated since
January 1, 1987, shall be canceled if all of the following conditions
are met:
(1) The bank or corporation was incorporated prior to January 1,
1987.
(2) The bank or corporation has been suspended in connection with
an income year commencing on or before December 1, 1987, pursuant to
Section 23301 and has not been "doing business" as defined in Section
23101 since January 1, 1987.
(3) The bank or corporation has an outstanding liability for tax,
penalty, interest, or additions to tax of more than two hundred
dollars ($200) and the tax liability for each income year for which a
waiver is requested does not exceed the minimum tax applicable to
that year.
(4) During the period from September 16, 1996, to December 31,
1998, inclusive, the bank or corporation applies for full corporate
dissolution and waiver of tax, penalty, and interest, and pays a fee
of two hundred dollars ($200).
(b) This section shall remain in effect only until January 1,
1999, and as of that date is repealed.
SEC. 143. Section 3016 of the Vehicle Code is amended to read:
3016. (a) New motor vehicle dealers and other licensees under the
jurisdiction of the board shall be charged fees sufficient to fully
fund the activities of the board other than those conducted pursuant
to Section 472.5 of the Business and Professions Code. The board may
recover the direct cost of the activities required by Section 472.5
of the Business and Professions Code by charging the Department of
Consumer Affairs a fee which shall be paid by the Department of
Consumer Affairs with funds appropriated from the Certification
Account in the Consumer Affairs Fund. All fees shall be deposited,
and held separate from other moneys, in the Motor Vehicle Account in
the State Transportation Fund, and shall not be transferred to the
State Highway Account pursuant to Section 42273.
(b) The fees shall be available, when appropriated, exclusively to
fund the activities of the board. If, at the conclusion of any
fiscal year, the amount of fees collected exceeds the amount of
expenditures for this purpose during the fiscal year, the surplus
shall be carried over into the succeeding fiscal year.
SEC. 144. Section 22651.2 of the Vehicle Code is amended to read:
22651.2. (a) Any peace officer, as defined in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2 of the Penal Code,
or any regularly employed and salaried employee, who is engaged in
directing traffic or enforcing parking laws and regulations of a
city, county, or jurisdiction of a state agency in which a vehicle is
located, may remove a vehicle located within the territorial limits
in which the officer or employee may act when the vehicle is found
upon a highway or any public lands, and if all of the following
requirements are satisfied:
(1) Because of the size and placement of signs or placards on the
vehicle, it appears that the primary purpose of parking the vehicle
at that location is to advertise to the public an event or function
on private property or on public property hired for a private event
or function to which the public is invited.
(2) The vehicle is known to have been previously issued a notice
of parking violation that was accompanied by a notice warning that an
additional parking violation may result in the impoundment of the
vehicle.
(3) The registered owner of the vehicle has been mailed a notice
advising of the existence of the parking violation and that an
additional violation may result in the impoundment of the vehicle.
(b) Subdivision (a) does not apply to a vehicle bearing any sign
or placard advertising any business or enterprise carried on by or
through the use of that vehicle.
(c) Section 22852 applies to the removal of any vehicle pursuant
to this section.
SEC. 145. Section 40513 of the Vehicle Code is amended to read:
40513. (a) Whenever written notice to appear has been prepared,
delivered, and filed with the court, an exact and legible duplicate
copy of the notice when filed with the magistrate, in lieu of a
verified complaint, shall constitute a complaint to which the
defendant may plead "guilty" or "nolo contendere."
If, however, the defendant violates his or her promise to appear
in court or does not deposit lawful bail, or pleads other than
"guilty" or "nolo contendere" to the offense charged, a complaint
shall be filed that shall conform to Chapter 2 (commencing with
Section 948) of Title 5 of Part 2 of the Penal Code, which shall be
deemed to be an original complaint, and thereafter proceedings shall
be had as provided by law, except that a defendant may, by an
agreement in writing, subscribed by him or her and filed with the
court, waive the filing of a verified complaint and elect that the
prosecution may proceed upon a written notice to appear.
(b) Notwithstanding subdivision (a), whenever the written notice
to appear has been prepared on a form approved by the Judicial
Council, an exact and legible duplicate copy of the notice when filed
with the magistrate shall constitute a complaint to which the
defendant may enter a plea and, if the notice to appear is verified,
upon which a warrant may be issued. If the notice to appear is not
verified, the defendant may, at the time of arraignment, request that
a verified complaint be filed.
SEC. 146. Section 13399.3 of the Water Code is amended to read:
13399.3. (a) On or before January 1, 2000, the state board shall
report to the Legislature on actions taken by the state board and the
regional boards to implement this chapter and the results of that
implementation. Each regional board shall provide the state board
with the information that the state board requests to determine the
degree to which the purposes described in subdivision (a) of Section
13399 have been achieved.
(b) This chapter shall remain in effect only until January 1, 2001,
and as of that date is repealed, unless a later enacted statute,
which is enacted on or before January 1, 2001, deletes or extends
that date.
SEC. 147. Section 207.1 of the Welfare and Institutions Code is
amended to read:
207.1. (a) No court, judge, referee, peace officer, or employee
of a detention facility shall knowingly detain any minor in a jail or
lockup, except as provided in subdivision (b) or (d).
(b) Any minor who is alleged to have committed an offense
described in subdivision (b), paragraph (2) of subdivision (d), or
subdivision (e) of Section 707 whose case is transferred to a court
of criminal jurisdiction pursuant to Section 707.1 after a finding is
made that he or she is not a fit and proper subject to be dealt with
under the juvenile court law, or any minor who has been charged
directly in or transferred to a court of criminal jurisdiction
pursuant to Section 707.01, may be detained in a jail or other secure
facility for the confinement of adults if all of the following
conditions are met:
(1) The juvenile court or the court of criminal jurisdiction makes
a finding that the minor's further detention in the juvenile hall
would endanger the safety of the public or would be detrimental to
the other minors in the juvenile hall.
(2) Contact between the minor and adults in the facility is
restricted in accordance with Section 208.
(3) The minor is adequately supervised.
(c) A minor who is either found not to be a fit and proper subject
to be dealt with under the juvenile court law or who will be
transferred to a court of criminal jurisdiction pursuant to Section
707.01, at the time of transfer to a court of criminal jurisdiction
or at the conclusion of the fitness hearing, as the case may be,
shall be entitled to be released on bail or on his or her own
recognizance upon the same circumstances, terms, and conditions as an
adult who is alleged to have committed the same offense.
(d) (1) A minor 14 years of age or older who is taken into
temporary custody by a peace officer on the basis of being a person
described by Section 602, and who, in the reasonable belief of the
peace officer, presents a serious security risk of harm to self or
others, may be securely detained in a law enforcement facility that
contains a lockup for adults, if all of the following conditions are
met:
(A) The minor is held in temporary custody for the purpose of
investigating the case, facilitating release of the minor to a parent
or guardian, or arranging transfer of the minor to an appropriate
juvenile facility.
(B) The minor is detained in the law enforcement facility for a
period that does not exceed six hours except as provided in
subdivision (g).
(C) The minor is informed at the time he or she is securely
detained of the purpose of the secure detention, of the length of
time the secure detention is expected to last, and of the maximum
six-hour period the secure detention is authorized to last. In the
event an extension is granted pursuant to subdivision (g), the minor
shall be informed of the length of time the extension is expected to
last.
(D) Contact between the minor and adults confined in the facility
is restricted in accordance with Section 208.
(E) The minor is adequately supervised.
(F) A log or other written record is maintained by the law
enforcement agency showing the offense that is the basis for the
secure detention of the minor in the facility, the reasons and
circumstances forming the basis for the decision to place the minor
in secure detention, and the length of time the minor was securely
detained.
(2) Any other minor, other than a minor to which paragraph (1)
applies, who is taken into temporary custody by a peace officer on
the basis that the minor is a person described by Section 602 may be
taken to a law enforcement facility that contains a lockup for adults
and may be held in temporary custody in the facility for the
purposes of investigating the case, facilitating the release of the
minor to a parent or guardian, or arranging for the transfer of the
minor to an appropriate juvenile facility. While in the law
enforcement facility, the minor may not be securely detained and
shall be supervised in a manner so as to ensure that there will be no
contact with adults in custody in the facility. If the minor is
held in temporary, nonsecure custody within the facility, the peace
officer shall exercise one of the dispositional options authorized by
Sections 626 and 626.5 without unnecessary delay and, in every case,
within six hours.
(3) "Law enforcement facility," as used in this subdivision,
includes a police station or a sheriff's station, but does not
include a jail, as defined in subdivision (i).
(e) The Board of Corrections shall assist law enforcement
agencies, probation departments, and courts with the implementation
of this section by doing all of the following:
(1) The board shall advise each law enforcement agency, probation
department, and court affected by this section as to its existence
and effect.
(2) The board shall make available and, upon request, shall
provide, technical assistance to each governmental agency that
reported the confinement of a minor in a jail or lockup in calendar
year 1984 or 1985. The purpose of this technical assistance is to
develop alternatives to the use of jails or lockups for the
confinement of minors. These alternatives may include secure or
nonsecure facilities located apart from an existing jail or lockup,
improved transportation or access to juvenile halls or other juvenile
facilities, and other programmatic alternatives recommended by the
board. The technical assistance shall take any form the board deems
appropriate for effective compliance with this section.
(f) The Board of Corrections may exempt a county that does not
have a juvenile hall, or may exempt an offshore law enforcement
facility, from compliance with this section for a reasonable period
of time, until December 1, 1992, for the purpose of allowing the
county or the facility to develop
alternatives to the use of jails and lockups for the
confinement of minors, if all of the following conditions are met:
(1) The county or the facility submits a written request to the
board for an extension of time to comply with this section.
(2) The board agrees to make available, and the county or the
facility agrees to accept, technical assistance to develop
alternatives to the use of jails and lockups for the confinement of
minors during the period of the extension.
(3) The county or the facility requesting the extension submits to
the board a written plan for full compliance with this section by
September 1, 1987.
(g) (1) (A) Under the limited conditions of inclement weather,
acts of God, or natural disasters that result in the temporary
unavailability of transportation, an extension of the six-hour
maximum period of detention set forth in paragraph (2) of subdivision
(d) may be granted to a county by the Board of Corrections. The
extension may be granted only by the board, on an individual,
case-by-case basis. If the extension is granted, the detention of
minors under those conditions shall not exceed the duration of the
special conditions, plus a period reasonably necessary to accomplish
transportation of the minor to a suitable juvenile facility, not to
exceed six hours after the restoration of available transportation.
(B) A county that receives an extension under this paragraph shall
comply with the requirements set forth in subdivision (d). The
county also shall provide a written report to the board that
specifies when the inclement weather, act of God, or natural disaster
ceased to exist, when transportation availability was restored, and
when the minor was delivered to a suitable juvenile facility. In the
event that the minor was detained in excess of 24 hours, the board
shall verify the information contained in the report.
(2) Under the limited condition of temporary unavailability of
transportation, an extension of the six-hour maximum period of
detention set forth in paragraph (2) of subdivision (d) may be
granted by the board to an offshore law enforcement facility. The
extension may be granted only by the board, on an individual,
case-by-case basis. If the extension is granted, the detention of
minors under those conditions shall extend only until the next
available mode of transportation can be arranged.
An offshore law enforcement facility that receives an extension
under this paragraph shall comply with the requirements set forth in
subdivision (d). The facility also shall provide a written report to
the board that specifies when the next mode of transportation became
available, and when the minor was delivered to a suitable juvenile
facility. In the event that the minor was detained in excess of 24
hours, the board shall verify the information contained in the
report.
(3) At least annually, the board shall review and report on
extensions sought and granted under this subdivision. If, upon that
review, the board determines that a county has sought one or more
extensions resulting in the excessive confinement of minors in adult
facilities, or that a county is engaged in a pattern and practice of
seeking extensions, it shall require the county to submit a detailed
explanation of the reasons for the extensions sought and an
assessment of the need for a conveniently located and suitable
juvenile facility. Upon receiving this information, the board shall
make available, and the county shall accept, technical assistance for
the purpose of developing suitable alternatives to the confinement
of minors in adult lockups. Based upon the information provided by
the county, the board also may place limits on, or refuse to grant,
future extensions requested by the county under this subdivision.
(h) Any county that did not have a juvenile hall on January 1,
1987, may establish a special purpose juvenile hall, as defined by
the Board of Corrections, for the detention of minors for a period
not to exceed 96 hours. Any county that had a juvenile hall on
January 1, 1987, also may establish, in addition to the juvenile
hall, a special purpose juvenile hall. The board shall prescribe
minimum standards for that type of facility.
(i) (1) "Jail," as used in this chapter, means any building that
contains a locked facility administered by a law enforcement or
governmental agency, the purpose of which is to detain adults who
have been charged with violations of criminal law and are pending
trial, or to hold convicted adult criminal offenders sentenced for
less than one year.
(2) "Lockup," as used in this chapter, means any locked room or
secure enclosure under the control of a sheriff or other peace
officer that is primarily for the temporary confinement of adults
upon arrest.
(3) "Offshore law enforcement facility," as used in this section,
means a sheriff's station containing a lockup for adults that is
located on an island located at least 22 miles from the California
coastline.
(j) Nothing in this section shall be deemed to prevent a peace
officer or employee of an adult detention facility or jail from
escorting a minor into the detention facility or jail for the purpose
of administering an evaluation, test, or chemical test pursuant to
Section 23157 of the Vehicle Code, if all of the following conditions
are met:
(1) The minor is taken into custody by a peace officer on the
basis of being a person described by Section 602 and there is no
equipment for the administration of the evaluation, test, or chemical
test located at a juvenile facility within a reasonable distance of
the point where the minor was taken into custody.
(2) The minor is not locked in a cell or room within the adult
detention facility or jail, is under the continuous, personal
supervision of a peace officer or employee of the detention facility
or jail, and is not permitted to come in contact or remain in contact
with in-custody adults.
(3) The evaluation, test, or chemical test administered pursuant
to Section 23157 of the Vehicle Code is performed as expeditiously as
possible, so that the minor is not delayed unnecessarily within the
adult detention facility or jail. Upon completion of the evaluation,
test, or chemical test, the minor shall be removed from the
detention facility or jail as soon as reasonably possible. No minor
shall be held in custody in an adult detention facility or jail under
the authority of this paragraph in excess of two hours.
SEC. 148. Section 366.21 of the Welfare and Institutions Code, as
amended by Section 6.9 of Chapter 1084 of the Statutes of 1996, is
amended to read:
366.21. (a) Every hearing conducted by the juvenile court
reviewing the status of a dependent child shall be placed on the
appearance calendar. The court shall advise all persons present at
the hearing of the date of the future hearing and of their right to
be present and represented by counsel.
(b) (1) Except as provided in Section 366.23 and subdivision (a)
of Section 366.3, notice of the hearing shall be mailed by the
probation officer to the same persons as in the original proceeding,
to the minor's parent or guardian, to the foster parents, community
care facility, or foster family agency having physical custody of the
minor in the case of a minor removed from the physical custody of
his or her parent or guardian, and to the counsel of record if the
counsel of record was not present at the time that the hearing was
set by the court, by first-class mail addressed to the last known
address of the person to be notified, or shall be personally served
on those persons, not earlier than 30 days nor later than 15 days
preceding the date to which the hearing was continued. Service of a
copy of the notice personally, by certified mail return receipt
requested, or by any other form of actual notice is equivalent to
service by first-class mail.
(2) The notice required by paragraph (1) shall contain a statement
regarding the nature of the hearing to be held and any change in the
custody or status of the minor being recommended by the supervising
agency. The notice to the foster parent shall indicate that the
foster parent may attend all hearings or may submit any information
he or she deems relevant to the court in writing.
(c) At least 10 calendar days prior to the hearing, the probation
officer shall file a supplemental report with the court regarding the
services provided or offered to the parent or guardian to enable
them to assume custody, the progress made, and, where relevant, the
prognosis for return of the minor to the physical custody of his or
her parent or guardian, and shall make his or her recommendation for
disposition. If the recommendation is not to return the minor to a
parent or guardian, the report shall specify why the return of the
minor would be detrimental to the minor. The probation officer shall
provide the parent or guardian with a copy of the report, including
his or her recommendation for disposition, at least 10 calendar days
prior to the hearing. In the case of a minor removed from the
physical custody of his or her parent or guardian, the probation
officer shall provide a summary of his or her recommendation for
disposition to the counsel for the minor, any court-appointed child
advocate, foster parents, community care facility, or foster family
agency having the physical custody of the minor at least 10 calendar
days before the hearing.
(d) Prior to any hearing involving a minor in the physical custody
of a community care facility or foster family agency that may result
in the return of the minor to the physical custody of his or her
parent or guardian, or in adoption or the creation of a legal
guardianship, the facility or agency shall file with the court a
report containing its recommendation for disposition. Prior to such
a hearing involving a minor in the physical custody of a foster
parent, the foster parent may file with the court a report containing
his or her recommendation for disposition. The court shall consider
the report and recommendation filed pursuant to this subdivision
prior to determining any disposition.
(e) (1) At the review hearing held six months after the initial
dispositional hearing, the court shall order the return of the minor
to the physical custody of his or her parent or guardian unless the
court finds, by a preponderance of the evidence, that the return of
the minor to his or her parent or guardian would create a substantial
risk of detriment to the safety, protection, or physical or
emotional well-being of the minor. The probation officer shall have
the burden of establishing that detriment. The failure of the parent
or guardian to participate regularly in court-ordered treatment
programs shall be prima facie evidence that return would be
detrimental. In making its determination, the court shall review and
consider the probation officer's report and recommendations and the
report and recommendations of any child advocate appointed pursuant
to Section 356.5, and shall consider the efforts or progress, or
both, demonstrated by the parent or guardian and the extent to which
he or she cooperated and availed himself or herself of the services
provided. Whether or not the minor is returned to a parent or
guardian, the court shall specify the factual basis for its
conclusion that the return would be detrimental or would not be
detrimental. The court also shall make appropriate findings pursuant
to subdivision (a) of Section 366 and, where relevant, shall order
any additional services reasonably believed to facilitate the return
of the minor to the custody of his or her parent or guardian. The
court shall also inform the parent or guardian that, if the minor
cannot be returned home by the next review hearing, a proceeding
pursuant to Section 366.26 may be instituted. This section does not
apply in a case where, pursuant to Section 361.5, the court has
ordered that reunification services shall not be provided.
(2) If the minor was under the age of three years on the date of
the initial removal and the court finds by clear and convincing
evidence that the parent failed to participate regularly in any
court-ordered treatment plan, the court may schedule a hearing
pursuant to Section 366.26 within 120 days. If, however, the court
finds that there is a substantial probability that the minor, who was
under the age of three years on the date of initial removal, may be
returned to his or her parent or guardian within six months or that
reasonable services have not been provided, the court shall continue
the case.
(3) If the minor was removed initially under subdivision (g) of
Section 300 and the court finds by clear and convincing evidence that
the whereabouts of the parent are still unknown, or that the parent
has failed to contact and visit the minor, the court may schedule a
hearing pursuant to Section 366.26 within 120 days. If the court
finds by clear and convincing evidence that the parent has been
convicted of a felony indicating parental unfitness, the court may
schedule a hearing pursuant to Section 366.26 within 120 days.
(4) (A) If the minor had been placed under court supervision with
a previously noncustodial parent pursuant to Section 361.2, the court
shall determine whether supervision is still necessary. The court
may terminate supervision and transfer permanent custody to that
parent, as provided for by paragraph (1) of subdivision (a) of
Section 361.2.
(B) In all other cases, the court shall direct that any
reunification services previously ordered shall continue to be
offered to the parent or guardian pursuant to the time periods set
forth in subdivision (a) of Section 361.5, provided that the court
may modify the terms and conditions of those services. If the minor
is not returned to his or her parent or guardian, the court shall
determine whether reasonable services have been provided or offered
to the parent or guardian that were designed to aid the parent or
guardian in overcoming the problems that led to the initial removal
and the continued custody of the minor. The court shall order that
those services be initiated, continued, or terminated.
(f) At the review hearing held 12 months after the initial
dispositional hearing, the court shall order the return of the minor
to the physical custody of his or her parent or guardian unless the
court finds, by a preponderance of the evidence, that the return of
the minor to his or her parent or guardian would create a substantial
risk of detriment to the safety, protection, or physical or
emotional well-being of the minor. The probation officer shall have
the burden of establishing that detriment. The court shall also
determine whether reasonable services have been provided or offered
to the parent or guardian that were designed to aid the parent or
guardian to overcome the problems that led to the initial removal and
continued custody of the minor. The failure of the parent or
guardian to participate regularly in court-ordered treatment programs
shall be prima facie evidence that return would be detrimental. In
making its determination, the court shall review and consider the
probation officer's report and recommendations and the report and
recommendations of any child advocate appointed pursuant to Section
356.5; shall consider the efforts or progress, or both, demonstrated
by the parent or guardian and the extent to which he or she availed
himself or herself of services provided; and shall make appropriate
findings pursuant to subdivision (a) of Section 366. Whether or not
the minor is returned to his or her parent or guardian, the court
shall specify the factual basis for its decision. If the minor is
not returned to a parent or guardian, the court shall specify the
factual basis for its conclusion that the return would be
detrimental. The court also shall make a finding pursuant to
subdivision (a) of Section 366.
(g) If the time period for which the court-ordered services were
provided has met or exceeded the time period set forth in paragraph
(1) or (2) of subdivision (a) of Section 361.5, as appropriate, and a
minor is not returned to the custody of a parent or guardian at the
hearing held pursuant to subdivision (f), the court shall do one of
the following:
(1) Continue the case for up to six months for another review
hearing, provided that the hearing shall occur within 18 months of
the date the minor was originally taken from the physical custody of
his or her parent or guardian. The court shall continue the case
only if it finds that there is a substantial probability that the
minor will be returned to the physical custody of his or her parent
or guardian within six months or that reasonable services have not
been provided to the parent or guardian. The court shall inform the
parent or guardian that, if the minor cannot be returned home by the
next review hearing, a permanent plan shall be developed at that
hearing. The court shall not order that a hearing pursuant to
Section 366.26 be held unless there is clear and convincing evidence
that reasonable services have been provided or offered to the parent
or guardian.
(2) Order that the minor remain in long-term foster care, if the
court finds by clear and convincing evidence, based upon the evidence
already presented to it, that the minor is not a proper subject for
adoption and has no one willing to accept legal guardianship.
(3) Order that a hearing be held within 120 days, pursuant to
Section 366.26, if there is clear and convincing evidence that
reasonable services have been provided or offered to the parents.
Evidence that the minor has been placed with a foster family that is
eligible to adopt a minor, or has been placed in a preadoptive home,
in and of itself, shall not be deemed a failure to provide or offer
reasonable services.
(h) In any case in which the court orders that a hearing pursuant
to Section 366.26 shall be held, it shall also order the termination
of reunification services to the parent. The court shall continue to
permit the parent to visit the minor pending the hearing unless it
finds that visitation would be detrimental to the minor.
(i) Whenever a court orders that a hearing pursuant to Section
366.26 shall be held, it shall direct the agency supervising the
child and the licensed county adoption agency, or the State
Department of Social Services when it is acting as an adoption agency
in counties that are not served by a county adoption agency, to
prepare an assessment regarding the likelihood that the minor will be
adopted if parental rights are terminated. The assessment shall
include all of the following:
(1) Current search efforts for an absent parent or parents.
(2) A review of the amount of and nature of any contact between
the minor and his or her parents since the time of placement.
(3) An evaluation of the minor's medical, developmental,
scholastic, mental, and emotional status and an analysis of whether
any of the minor's characteristics would make it difficult to find a
person willing to adopt the minor.
(4) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or guardian, particularly
the caretaker, to include a social history including screening for
criminal records and prior referrals for child abuse or neglect, the
capability to meet the minor's needs, and the understanding of the
legal and financial rights and responsibilities of adoption and
guardianship.
(5) The relationship of the minor to any identified prospective
adoptive parent or guardian, the duration and character of the
relationship, the motivation for seeking adoption or guardianship,
and a statement from the minor concerning placement and the adoption
or guardianship, unless the minor's age or physical, emotional, or
other condition precludes his or her meaningful response, and, if so,
a description of the condition.
(j) This section applies to minors made dependents of the court
pursuant to subdivision (c) of Section 360 on or after January 1,
1989.
(k) This section shall remain in effect only until January 1,
1999, and as of that date is repealed, unless a later enacted
statute, which is enacted on or before January 1, 1999, deletes or
extends that date.
SEC. 149. Section 366.21 of the Welfare and Institutions Code, as
amended by Section 7.9 of Chapter 1084 of the Statutes of 1996, is
amended to read:
366.21. (a) Every hearing conducted by the juvenile court
reviewing the status of a dependent child shall be placed on the
appearance calendar. The court shall advise all persons present at
the hearing of the date of the future hearing and of their right to
be present and represented by counsel.
(b) (1) Except as provided in Section 366.23 and subdivision (a)
of Section 366.3, notice of the hearing shall be mailed by the
probation officer to the same persons as in the original proceeding,
to the minor's parent or guardian, to the foster parents, community
care facility, or foster family agency having physical custody of the
minor in the case of a minor removed from the physical custody of
his or her parent or guardian, and to the counsel of record if the
counsel of record was not present at the time that the hearing was
set by the court, by first-class mail addressed to the last known
address of the person to be notified, or shall be personally served
on those persons, not earlier than 30 days nor later than 15 days
preceding the date to which the hearing was continued. Service of a
copy of the notice personally , by certified mail return receipt
requested, or by any other form of actual notice is equivalent to
service by first-class mail.
(2) The notice required by paragraph (1) shall contain a statement
regarding the nature of the hearing to be held and any change in the
custody or status of the minor being recommended by the supervising
agency. The notice to the foster parent shall indicate that the
foster parent may attend all hearings or may submit any information
he or she deems relevant to the court in writing.
(c) At least 10 calendar days prior to the hearing, the probation
officer shall file a supplemental report with the court regarding the
services provided or offered to the parent or guardian to enable
them to assume custody, the progress made, and, where relevant, the
prognosis for return of the minor to the physical custody of his or
her parent or guardian, and shall make his or her recommendation for
disposition. If the recommendation is not to return the minor to a
parent or guardian, the report shall specify why the return of the
minor would be detrimental to the minor. The probation officer shall
provide the parent or guardian with a copy of the report, including
his or her recommendation for disposition, at least 10 calendar days
prior to the hearing. In the case of a minor removed from the
physical custody of his or her parent or guardian, the probation
officer shall provide a summary of his or her recommendation for
disposition to the counsel for the minor, any court-appointed child
advocate, foster parents, community care facility, or foster family
agency having the physical custody of the minor at least 10 calendar
days before the hearing.
(d) Prior to any hearing involving a minor in the physical custody
of a community care facility or foster family agency that may result
in the return of the minor to the physical custody of his or her
parent or guardian, or in adoption or the creation of a legal
guardianship, the facility or agency shall file with the court a
report containing its recommendation for disposition. Prior to such
a hearing involving a minor in the physical custody of a foster
parent, the foster parent may file with the court a report containing
its recommendation for disposition. The court shall consider the
report and recommendation filed pursuant to this subdivision prior to
determining any disposition.
(e) (1) (A) At the review hearing held six months after the
initial dispositional hearing, the court shall order the return of
the minor to the physical custody of his or her parent or guardian
unless the court finds, by a preponderance of the evidence, that the
return of the minor to his or her parent or guardian would create a
substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the minor. The probation officer shall
have the burden of establishing that detriment. The failure of the
parent or guardian to participate regularly in court-ordered
treatment programs shall be prima facie evidence that return would be
detrimental. In making its determination, the court shall review
and consider the probation officer's report and recommendations and
the report and recommendations of any child advocate appointed
pursuant to Section 356.5; and shall consider the efforts or
progress, or both, demonstrated by the parent or guardian and the
extent to which he or she availed himself or herself of services
provided. Whether or not the minor is returned to a parent or
guardian, the court shall specify the factual basis for its
conclusion that the return would be detrimental or would not be
detrimental. The court also shall make appropriate findings pursuant
to subdivision (a) of Section 366 and, where relevant, shall order
any additional services reasonably believed to facilitate the return
of the minor to the custody of his or her parent or guardian. The
court shall also inform the parent or guardian that, if the minor
cannot be returned home by the next review hearing, a proceeding
pursuant to Section 366.26 may be instituted. This section does not
apply in a case where, pursuant to Section 361.5, the court has
ordered that reunification services shall not be provided.
(B) If the minor was under the age of three years on the date of
the initial removal and the court finds by clear and convincing
evidence that the parent failed to participate regularly in any
court-ordered treatment plan, the court may schedule a hearing
pursuant to Section 366.26 within 120 days. If, however, the court
finds there is a substantial probability that the minor, who was
under the age of three years on the date of initial removal, may be
returned to his or her parent or guardian within six months or that
reasonable services have not been provided, the court shall continue
the case.
(2) If the minor was removed initially under subdivision (g) of
Section 300 and the court finds by clear and convincing evidence that
the whereabouts of the parent are still unknown, or that the parent
has failed to contact and visit the minor, the court may schedule a
hearing pursuant to Section 366.26 within 120 days. If the court
finds by clear and
convincing evidence that the parent has been convicted of a felony
indicating parental unfitness, the court may schedule a hearing
pursuant to Section 366.26 within 120 days.
(3) (A) If the minor had been placed under court supervision with
a previously noncustodial parent pursuant to Section 361.2, the court
shall determine whether supervision is still necessary. The court
may terminate supervision and transfer permanent custody to that
parent, as provided for by paragraph (1) of subdivision (a) of
Section 361.2.
(B) In all other cases, the court shall direct that any
reunification services previously ordered shall continue to be
offered to the parent or guardian pursuant to the time periods set
forth in subdivision (a) of Section 361.5, provided that the court
may modify the terms and conditions of those services.
(4) If the minor is not returned to his or her parent or guardian,
the court shall determine whether reasonable services have been
provided or offered to the parent or guardian that were designed to
aid the parent or guardian in overcoming the problems that led to the
initial removal and the continued custody of the minor. The court
shall order that those services be initiated, continued, or
terminated.
(f) At the review hearing held 12 months after the initial
dispositional hearing, the court shall order the return of the minor
to the physical custody of his or her parent or guardian unless the
court finds, by a preponderance of the evidence, that the return of
the minor to his or her parent or guardian would create a substantial
risk of detriment to the safety, protection, or physical or
emotional well-being of the minor. The probation officer shall have
the burden of establishing that detriment. The failure of the parent
or guardian to participate regularly in court-ordered treatment
programs shall be prima facie evidence that return would be
detrimental. In making its determination, the court shall review and
consider the probation officer's report and recommendations and the
report and recommendations of any child advocate appointed pursuant
to Section 356.5; shall consider the efforts or progress, or both,
demonstrated by the parent or guardian and the extent to which he or
she availed himself or herself of services provided; and shall make
appropriate findings pursuant to subdivision (a) of Section 366.
Whether or not the minor is returned to his or her parent or
guardian, the court shall specify the factual basis for its decision.
If the minor is not returned to a parent or guardian, the court
shall specify the factual basis for its conclusion that the return
would be detrimental. The court also shall make a finding pursuant
to subdivision (a) of Section 366.
(g) If the time period in which the court-ordered services were
provided has met or exceeded the time period set forth in paragraph
(1) or (2) of subdivision (a) of Section 361.5, as appropriate, and a
minor is not returned to the custody of a parent or guardian at the
hearing held pursuant to subdivision (f), the court shall do one of
the following:
(1) Continue the case for up to six months for another review
hearing, provided that the hearing shall occur within 18 months of
the date the minor was originally taken from the physical custody of
his or her parent or guardian. The court shall continue the case
only if it finds that there is a substantial probability that the
minor will be returned to the physical custody of his or her parent
or guardian within six months or that reasonable services have not
been provided to the parent or guardian. The court shall inform the
parent or guardian that if the minor cannot be returned home by the
next review hearing, a permanent plan shall be developed at that
hearing. The court shall not order that a hearing pursuant to
Section 366.26 be held unless there is clear and convincing evidence
that reasonable services have been provided or offered to the parent
or guardian.
(2) Order that the minor remain in long-term foster care, if the
court finds by clear and convincing evidence, based upon the evidence
already presented to it, that the minor is not a proper subject for
adoption and has no one willing to accept legal guardianship.
(3) Order that a hearing be held within 120 days, pursuant to
Section 366.26, if there is clear and convincing evidence that
reasonable services have been provided or offered to the parents.
Evidence that the minor has been placed with a foster family that is
eligible to adopt a minor, or has been placed in a preadoptive home,
in and of itself, shall not be deemed a failure to provide or offer
reasonable services.
(h) In any case in which the court orders that a hearing pursuant
to Section 366.26 shall be held, it shall also order the termination
of reunification services to the parent. The court shall continue to
permit the parent to visit the minor pending the hearing unless it
finds that visitation would be detrimental to the minor.
(i) Whenever a court orders that a hearing pursuant to Section
366.26 shall be held, it shall direct the agency supervising the
minor and the licensed county adoption agency, or the State
Department of Social Services when it is acting as an adoption agency
in counties that are not served by a county adoption agency, to
prepare an assessment that includes all of the following:
(1) Current search efforts for an absent parent or parents.
(2) A review of the amount of and nature of any contact between
the minor and his or her parents since the time of placement.
(3) An evaluation of the minor's medical, developmental,
scholastic, mental, and emotional status.
(4) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or guardian, particularly
the caretaker, to include a social history including screening for
criminal records and prior referrals for child abuse or neglect, the
capability to meet the minor's needs, and the understanding of the
legal and financial rights and responsibilities of adoption and
guardianship.
(5) The relationship of the minor to any identified prospective
adoptive parent or guardian, the duration and character of the
relationship, the motivation for seeking adoption or guardianship,
and a statement from the minor concerning placement and the adoption
or guardianship, unless the minor's age or physical, emotional, or
other condition precludes his or her meaningful response, and if so,
a description of the condition.
(6) An analysis of the likelihood that the minor will be adopted
if parental rights are terminated.
(j) This section applies to minors made dependents of the court
pursuant to subdivision (c) of Section 360 on or after January 1,
1989.
(k) This section shall become operative January 1, 1999.
SEC. 150. Section 5778 of the Welfare and Institutions Code is
amended to read:
5778. (a) This section shall be limited to mental health services
reimbursed through a fee-for-service payment system.
(b) During the initial phases of the implementation of this part,
as determined by the department, the mental health plan contractor
and subcontractors shall submit claims under the Medi-Cal program for
eligible services on a fee-for-service basis.
(c) A qualifying county may elect, with the approval of the
department, to operate under the requirements of a capitated,
integrated service system field test pursuant to Section 5719.5
rather than this part, in the event that the requirements of the two
programs conflict. A county that elects to operate under that
section shall comply with all other provisions of this part that do
not conflict with that section.
(d) (1) No sooner than October 1, 1994, state matching funds for
Medi-Cal fee-for-service acute psychiatric inpatient services, and
associated administrative days, shall be transferred to the
department. No later than July 1, 1997, upon agreement between the
department and the State Department of Health Services, state
matching funds for the remaining Medi-Cal fee-for-service mental
health services and the state matching funds associated with field
test counties under Section 5719.5 shall be transferred to the
department.
(2) The department, in consultation with the State Department of
Health Services, a statewide organization representing counties, and
a statewide organization representing health maintenance
organizations, shall develop a timeline for the transfer of funding
and responsibility for fee-for-service mental health services from
Medi-Cal managed care plans to mental health plans. In developing
the timeline, the department shall develop screening, referral, and
coordination guidelines to be used by Medi-Cal managed care plans and
mental health plans.
(e) The department shall allocate the contracted amount at the
beginning of the contract period to the mental health plan. The
allocated funds shall be considered to be funds of the plan that may
be held by the department. The department shall develop a
methodology to ensure that these funds are held as the property of
the plan and shall not be reallocated by the department or other
entity of state government for other purposes.
(f) Beginning in the fiscal year following the transfer of funds
from the State Department of Health Services, the state matching
funds for Medi-Cal mental health services shall be included in the
annual budget for the department. The amount included shall be based
on historical cost, adjusted for changes in the number of Medi-Cal
beneficiaries and other relevant factors.
(g) Initially, the mental health plans shall use the fiscal
intermediary of the Medi-Cal program of the State Department of
Health Services for the processing of claims for inpatient
psychiatric hospital services and may be required to use that fiscal
intermediary for the remaining mental health services. The providers
for other Short-Doyle Medi-Cal services shall not be initially
required to use the fiscal intermediary but may be required to do so
on a date to be determined by the department. The department and its
mental health plans shall be responsible for the initial incremental
increased matching costs of the fiscal intermediary for claims
processing and information retrieval associated with the operation of
the services funded by the transferred funds.
(h) The mental health plans, subcontractors, and providers of
mental health services shall be liable for all federal audit
exceptions or disallowances based on their conduct or determinations.
The mental health plan contractors shall not be liable for federal
audit exceptions or disallowances based on the state's conduct or
determinations. The department and the State Department of Health
Services shall work jointly with mental health plans in initiating
any necessary appeals. The State Department of Health Services may
offset the amount of any federal disallowance or audit exception
against subsequent claims from the mental health plan or
subcontractor. This offset may be done at any time after the audit
exception or disallowance has been withheld from the federal
financial participation claim made by the State Department of Health
Services. The maximum amount that may be withheld shall be 25
percent of each payment to the plan or subcontractor.
(i) The mental health plans shall have sufficient funds on deposit
with the department, as the matching funds necessary for federal
financial participation, to ensure timely payment of claims for acute
psychiatric inpatient services and associated administrative days.
The department and the State Department of Health Services, in
consultation with a statewide organization representing counties,
shall establish a mechanism to facilitate timely availability of
those funds. Any funds held by the state on behalf of a plan shall
be deposited in a mental health managed care deposit fund and shall
accrue interest to the plan. The department shall exercise any
necessary funding procedures pursuant to Section 12419.5 of the
Government Code and Sections 8776.6 and 8790.8 of the State
Administrative Manual regarding county claim submission and payment.
(j) (1) The goal for funding of the future capitated system shall
be to develop statewide rates for beneficiary, by aid category and
with regional price differentiation, within a reasonable time period.
The formula for distributing the state matching funds transferred
to the department for acute inpatient psychiatric services to the
participating counties shall be based on the following principles:
(A) Medi-Cal state General Fund matching dollars shall be
distributed to counties based on historic Medi-Cal acute inpatient
psychiatric costs for the county's beneficiaries and on the number of
persons eligible for Medi-Cal in that county.
(B) All counties shall receive a baseline based on historic and
projected expenditures up to October 1, 1994.
(C) Projected inpatient growth for the period from October 1,
1994, to June 30, 1995, inclusive, shall be distributed to counties
below the statewide average per eligible person on a proportional
basis. The average shall be determined by the relative standing of
the aggregate of each county's expenditures of mental health Medi-Cal
dollars per beneficiary. Total Medi-Cal dollars shall include both
fee-for-service Medi-Cal and Short-Doyle Medi-Cal dollars for acute
inpatient psychiatric services, outpatient mental health services,
and psychiatric nursing facility services, both in facilities that
are not designated as institutions for mental disease and for
beneficiaries who are under 22 years of age and beneficiaries who are
over 64 years of age in facilities that are designated as
institutions for mental disease.
(D) There shall be funds set aside for a self-insurance risk pool
for small counties. The department may provide these funds directly
to the administering entity designated in writing by all counties
participating in the self-insurance risk pool. The small counties
shall assume all responsibility and liability for appropriate
administration of these funds. Nothing in this paragraph in any way
obligates the state or the department to provide or make available
any additional funds beyond the amount initially appropriated and set
aside for each particular fiscal year, unless otherwise authorized
in statute or regulations, nor shall the state or the department be
liable in any way for mismanagement or loss of funds by the entity
designated by the counties under this paragraph.
(2) The allocation method for state funds transferred for acute
inpatient psychiatric services shall be as follows:
(A) For the 1994-95 fiscal year, an amount equal to 0.6965 percent
of the total shall be transferred to a fund established by small
counties. This fund shall be used to reimburse mental health plans
in small counties for the cost of acute inpatient psychiatric
services in excess of the funding provided to the mental health plan
for risk reinsurance, acute inpatient psychiatric services and
associated administrative days, or alternatives to hospital services
as approved by participating small counties, or for costs associated
with the administration of these moneys. The methodology for use of
these moneys shall be determined by the small counties, through a
statewide organization representing counties, in consultation with
the department.
(B) The balance of the transfer amount for the 1994-95 fiscal year
shall be allocated to counties based on the following formula:
County Percentage
Alameda .................................... 3.5991
Alpine ..................................... .0050
Amador ..................................... .0490
Butte ...................................... .8724
Calaveras .................................. .0683
Colusa ..................................... .0294
Contra Costa ............................... 1.5544
Del Norte .................................. .1359
El Dorado .................................. .2272
Fresno ..................................... 2.5612
Glenn ...................................... .0597
Humboldt ................................... .1987
Imperial ................................... .6269
Inyo ....................................... .0802
Kern ....................................... 2.6309
Kings ...................................... .4371
Lake ....................................... .2955
Lassen ..................................... .1236
Los Angeles ................................ 31.3239
Madera ..................................... .3882
Marin ...................................... 1.0290
Mariposa ................................... .0501
Mendocino .................................. .3038
Merced ..................................... .5077
Modoc ...................................... .0176
Mono ....................................... .0096
Monterey ................................... .7351
Napa ....................................... .2909
Nevada ..................................... .1489
Orange ..................................... 8.0627
Placer ..................................... .2366
Plumas ..................................... .0491
Riverside .................................. 4.4955
Sacramento ................................. 3.3506
San Benito ................................. .1171
San Bernardino ............................. 6.4790
San Diego .................................. 12.3128
San Francisco .............................. 3.5473
San Joaquin ................................ 1.4813
San Luis Obispo ............................ .2660
San Mateo .................................. .0000
Santa Barbara .............................. .0000
Santa Clara ................................ 1.9284
Santa Cruz ................................. 1.7571
Shasta ..................................... .3997
Sierra ..................................... .0105
Siskiyou ................................... .1695
Solano ..................................... .0000
Sonoma ..................................... .5766
Stanislaus ................................. 1.7855
Sutter/Yuba ................................ .7980
Tehama ..................................... .1842
Trinity .................................... .0271
Tulare ..................................... 2.1314
Tuolumne ................................... .2646
Ventura .................................... .8058
Yolo ....................................... .4043
(3) For purposes of this subdivision, "small counties" means
counties with less than 200,000 population.
(k) The allocation method for the state funds transferred for
subsequent years for acute inpatient psychiatric and other mental
health services shall be determined by the department in consultation
with a statewide organization representing counties.
(l) The allocation methodologies described in this section shall
be in effect only while federal financial participation is received
on a fee-for-service reimbursement basis. When federal funds are
capitated, the department, in consultation with a statewide
organization representing counties, shall determine the methodology
for capitation consistent with federal requirements.
(m) The formula that specifies the amount of state matching funds
transferred for the remaining Medi-Cal fee-for-service mental health
services shall be determined by the department in consultation with a
statewide organization representing counties. This formula shall be
in effect only while federal financial participation is received on
a fee-for-service reimbursement basis.
(n) Upon the transfer of funds from the budget of the State
Department of Health Services to the department pursuant to
subdivision (d), the department shall assume the applicable program
oversight authority formerly provided by the State Department of
Health Services, including, but not limited to, the oversight of
utilization controls as specified in Section 14133. The mental
health plan shall include a requirement in any subcontracts that all
inpatient subcontractors maintain necessary licensing and
certification. Mental health plans shall require that services
delivered by licensed staff are within their scope of practice.
Nothing in this part prohibits the mental health plans from
establishing standards that are in addition to the minimum federal
and state requirements, provided that these standards do not violate
federal and state Medi-Cal requirements and guidelines.
(o) Subject to federal approval and consistent with state
requirements, the mental health plan may negotiate rates with
providers of mental health services.
(p) Under the fee-for-service payment system, any excess in the
payment set forth in the contract over the expenditures for services
by the plan shall be spent for the provision of mental health
services and related administrative costs.
(q) Nothing in this part limits the mental health plan from being
reimbursed appropriate federal financial participation for any
qualified services, even if the total expenditures for service
exceeds the contract amount with the department. Matching nonfederal
public funds shall be provided by the plan for the federal financial
participation matching requirement.
SEC. 151. Article 4 (commencing with Section 6600) of Chapter 2 of
Part 2 of Division 6 of the Welfare and Institutions Code, as added
by Chapter 762 of the Statutes of 1995, is repealed.
SEC. 152. Section 7325 of the Welfare and Institutions Code is
amended to read:
7325. (a) When any patient committed by a court to a state
hospital or other institution on or before June 30, 1969, or when any
patient who is judicially committed on or after July 1, 1969, or
when any patient who is involuntarily detained pursuant to Part 1
(commencing with Section 5000) of Division 5 escapes from any state
hospital, any hospital or facility operated by or under the Veterans'
Administration of the United States government, or any facility
designated by a county pursuant to Part 1 (commencing with Section
5000) of Division 5, or any facility into which the patient has been
placed by his or her conservator appointed pursuant to Chapter 3
(commencing with Section 5350) of Part 1 of Division 5, or when a
judicially committed patient's return from leave of absence has been
authorized or ordered by the State Department of Mental Health, or
the State Department of Developmental Services, or the facility of
the Veterans' Administration, any peace officer, upon written request
of the state hospital, veterans' facility, or the facility
designated by a county, or the patient's conservator appointed
pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of
Division 5, shall, without the necessity of a warrant or court order,
or any officer or employee of the State Department of Mental Health,
or of the State Department of Developmental Services, designated to
perform these duties may, apprehend, take into custody, and deliver
the patient to the state hospital or to a facility of the Veterans'
Administration, or the facility designated by a county, or to any
person or place authorized by the State Department of Mental Health,
the State Department of Developmental Services, the Veterans'
Administration, the local director of the county mental health
program of the county in which is located the facility designated by
the county, or the patient's conservator appointed pursuant to
Chapter 3 (commencing with Section 5350) of Part 1 of Division 5, as
the case may be, to receive him or her. Every officer or employee of
the State Department of Mental Health, or of the State Department of
Developmental Services, designated to apprehend or return those
patients has the powers and privileges of peace officers so far as
necessary to enforce this section.
(b) As used in this section, "peace officer" means a person as
specified in Section 830.1 of the Penal Code.
(c) Any officer or employee of a state hospital, hospital or
facility operated by or under the Veterans' Administration, or any
facility designated by a county pursuant to Part 1 (commencing with
Section 5000) of Division 5 shall provide any peace officer with any
information concerning any patient who escapes from the hospital or
facility that is necessary to assist in the apprehension and return
of the patient. The written notification of the escape required by
this section shall include the name and physical description of the
patient, his or her home address, the degree of dangerousness of the
patient, including specific information about the patient if he or
she is deemed likely to cause harm to himself or herself or to
others, and any additional information that is necessary to apprehend
and return the patient. If the escapee has been charged with any
crime involving physical harm to children, the notice shall be
provided by the law enforcement agency to school districts in the
vicinity of the hospital or other facility in which the escapee was
being held, in the area the escapee is known or is likely to
frequent, and in the area where the escapee resided immediately prior
to confinement.
(d) The person in charge of the hospital or facility, or his or
her designee, may provide telephonic notification of the escape to
the law enforcement agency of the county or city in which the
hospital or facility is located. If that notification is given, the
time and date of notification, the person notified, and the person
making the notification shall be noted in the written notification
required by this section.
(e) Photocopying is not required in order to satisfy the
requirements of this section.
(f) No public or private entity or public or private employee
shall be liable for damages caused, or alleged to be caused, by the
release of information or the failure to release information pursuant
to this section.
SEC. 153. Section 11462 of the Welfare and Institutions Code is
amended to read:
11462. (a) (1) Effective July 1, 1990, foster care providers
licensed as group homes, as defined in departmental regulations,
including public child care institutions, as defined in Section
11402.5, shall have rates established by classifying each group home
program and applying the standardized schedule of rates. The
department shall collect information from group providers beginning
January 1, 1990, in order
to classify each group home program.
(2) Notwithstanding paragraph (1), foster care providers licensed
as group homes shall have rates established only if the group home is
organized and operated on a nonprofit basis as required under
subdivision (h) of Section 11400. The department shall terminate the
rate effective January 1, 1993, of any group home not organized and
operated on a nonprofit basis as required under subdivision (h) of
Section 11400.
(b) A group home program shall be initially classified, for
purposes of emergency regulations, according to the level of care and
services to be provided, using a point system developed by the
department and described in the report, "The Classification of Group
Home Programs under the Standardized Schedule of Rates System,"
prepared by the State Department of Social Services August 30, 1989.
(c) The rate for each rate classification level (RCL) has been
determined by the department with data from the AFDC-FC Group Home
Rate Classification Pilot Study. The rates effective July 1, 1990,
were developed using 1985 calendar year costs and reflect adjustments
to the costs for each fiscal year, starting with the 1986-87 fiscal
year, by the amount of the California Necessities Index computed
pursuant to the methodology described in Section 11453. The data
obtained by the department using 1985 calendar year costs shall be
updated and revised by January 1, 1993.
(d) As used in this section, "standardized schedule of rates"
means a listing of the 14 rate classification levels, the single rate
established for each RCL, and the rate floor for each RCL.
(e) The standardized schedule of rates shall be phased in
commencing July 1, 1990.
(1) In order to phase in the standardized schedule of rates, a
"rate floor" has been established for each RCL.
(2) The rate floor for fiscal year 1990-91 shall be 85 percent of
the standard rate for each RCL. The rate floor shall be increased to
92.5 percent of the standard rate for fiscal year 1991-92 for each
RCL, shall be equal to the standard rate for each RCL for the period
July 1, 1992, to September 13, 1992, inclusive, and shall be 92.5
percent of the standard rate for each RCL for the period September
14, 1992, to June 30, 1993, inclusive.
(3) The rate floor for each RCL shall be 95 percent of the
standard rate for each RCL for the 1993-94 fiscal year. The rate
floor shall be equal to the standard rate for each RCL for the
1994-95 fiscal year and beyond.
(f) Except as specified in paragraph (1), the department shall
determine the RCL for each group home program on a prospective basis,
according to the level of care and services that the group home
operator projects will be provided during the period of time for
which the rate is being established.
(1) For a group home program for which the department established
a rate effective prior to June 30, 1990, that took into account the
program's historical costs, the department shall establish the rate
for fiscal year 1990-91 by determining the RCL on a retrospective
basis, according to the level of care and services actually provided
between July 1 and December 31, 1989, or between July 1, 1989, and
March 31, 1990.
(2) Group home programs that fail to maintain at least the level
of care and services associated with the RCL upon which their rate
was established shall so inform the department. The department shall
develop regulations specifying procedures to be applied when a group
home fails to maintain the level of services projected, including,
but not limited to, rate reduction and recovery of overpayments.
(3) The department shall not reduce the rate, establish an
overpayment, or take other action pursuant to paragraph (2) for any
period that a group home program maintains the level of care and
services associated with the RCL for children actually residing in
the facility. Determinations of levels of care and services shall be
made in the same way as modifications of overpayments are made
pursuant to paragraph (2) of subdivision (b) of Section 11466.2.
(4) Beginning July 1, 1994, for group homes paid at rates below
the standard rate established by subdivision (g), a group home
program shall remain at its current RCL if it maintains at least the
level of care and services associated with that percentage of the
points required to be at that RCL that equals the percentage of the
standard rate used to establish the group home's rate. In no event,
however, may points per child per month be reduced more than 10
points below the minimum required for the current RCL. The RCL for a
program shall not increase due to the operation of this paragraph
absent any program changes approved by the department pursuant to
subdivision (k).
(5) A group home program that substantially changes its staffing
pattern from that reported in the group home program statement shall
provide notification of this change to all counties that have placed
children currently in care. This notification shall be provided
whether or not the RCL for the program may change as a result of the
change in staffing pattern.
(g) The standardized schedule of rates for fiscal year 1990-91 is:
FY 1990-91
Rate Point Ranges ------------------------
Classification Standard Rate
Level Rate Floor
(85%)
1 Under 60 $1,183 $1,006
2 60- 89 1,478 1,256
3 90-119 1,773 1,507
4 120-149 2,067 1,757
5 150-179 2,360 2,006
6 180-209 2,656 2,258
7 210-239 2,950 2,508
8 240-269 3,245 2,758
9 270-299 3,539 3,008
10 300-329 3,834 3,259
11 330-359 4,127 3,508
12 360-389 4,423 3,760
13 390-419 4,720 4,012
14 420 & Up 5,013 4,261
(h) (1) For fiscal year 1990-91, the standardized schedule of
rates shall be implemented as follows:
(A) Any group home program that received an AFDC-FC rate in the
prior fiscal year below the standard rate for the fiscal year 1990-91
RCL shall receive their 1989-90 rate plus an amount equal to the
California Necessities Index (CNI). The rate for fiscal year 1990-91
at which the state will participate shall not exceed the standard
rate for the RCL.
(B) If the CNI increase to the group home program's fiscal year
1989-90 rate does not raise the group home program to the rate floor
for the RCL, the group home program shall receive a rate equal to the
rate floor for the RCL.
(C) A group home program that received an AFDC-FC rate for fiscal
year 1989-90 at or above the standard rate for the RCL for fiscal
year 1990-91 shall continue to receive that fiscal year 1989-90 rate.
(2) For that portion of the 1997-98 fiscal year, commencing on
November 1, 1997, and the 1998-99 fiscal year, the standardized rate
for each RCL shall be adjusted by an amount equal to the California
Necessities Index computed pursuant to the methodology described in
Section 11453.
(A) Any group home program that received an AFDC-FC rate in the
prior fiscal year at or above the adjusted standard rate for the RCL
in the current fiscal year shall continue to receive that rate.
(B) A group home program that received an AFDC-FC rate in the
prior fiscal year below the standard rate for the RCL in the current
fiscal year shall receive that rate adjusted by an amount equal to
the CNI. The rate for the current fiscal year shall not exceed the
standard rate for the RCL and shall not be less than the rate floor
for the RCL.
(3) Beginning with the 1999-2000 fiscal year, the standardized
schedule of rates shall be adjusted annually by an amount equal to
the CNI computed pursuant to Section 11453, subject to the
availability of funds.
(A) Any group home program that received an AFDC-FC rate in the
prior fiscal year at or above the adjusted standard rate for the RCL
in the current fiscal year shall continue to receive that rate.
(B) Any group home program that received an AFDC-FC rate in the
prior fiscal year below the adjusted standard rate for the RCL in the
current fiscal year shall receive the adjusted RCL rate.
(i) (1) (A) The rate for a new group home program of a new or
existing provider shall be established at the rate floor for the new
program's projected RCL.
(B) On and after the operative date of this subparagraph, the
department shall not, prior to July 1, 1993, establish a rate for a
new group home program of a new or existing provider.
(2) The department shall not establish a rate for a new program of
a new or existing provider unless the provider submits a
recommendation from the host county, the primary placing county, or a
regional consortium of counties that the program is needed in that
county; that the provider is capable of effectively and efficiently
operating the program; and that the provider is willing and able to
accept AFDC-FC children for placement who are determined by the
placing agency to need the level of care and services that will be
provided by the program.
(3) The department shall encourage the establishment of consortia
of county placing agencies on a regional basis for the purpose of
making decisions and recommendations about the need for, and use of,
group home programs and other foster care providers within the
regions.
(4) The department shall annually conduct a county-by-county
survey to determine the unmet placement needs of children placed
pursuant to Section 300 and Section 601 or 602, and shall publish its
findings by November 1 of each year.
(j) The department shall develop regulations specifying
ratesetting procedures for program expansions, reductions, or
modifications, including increases or decreases in licensed capacity,
or increases or decreases in level of care or services.
(k) (1) For the purpose of this subdivision, "program change"
means any alteration to an existing group home program planned by a
provider that will increase the RCL or AFDC-FC rate. An increase in
the licensed capacity or other alteration to an existing group home
program that does not increase the RCL or AFDC-FC rate shall not
constitute a program change.
(2) (A) Prior to July 1, 1993, the rate for a group home program
may not increase, as the result of a program change, from the rate
established for the program effective June 30, 1992. For rate
increases as a result of a program change that became effective
between July 1, 1992, and the effective date of this paragraph, the
department shall adjust rates downward as necessary to comply with
this chapter. Notwithstanding any other provision of law, a group
home provider shall be allowed to change a group home program to
reflect a decrease in services due to the provisions of this
paragraph.
(B) For the 1993-94 fiscal year, the rate for a group home program
shall not increase, as the result of a program change, from the rate
established for the program effective July 1, 1993, except as
provided in paragraph (3).
(C) For the 1994-95 fiscal year, the 1995-96 fiscal year, and the
1996-97 fiscal year, the rate for a group home program shall not
increase, as the result of a program change, from the rate
established for the program effective July 1, 1994, except as
provided in paragraph (3).
(3) (A) For the 1993-94 fiscal year, the 1994-95 fiscal year, the
1995-96 fiscal year, and the 1996-97 fiscal year, the department
shall not establish a rate for a new program of a new or existing
provider or approve a program change for an existing provider that
either increases the program's RCL or AFDC-FC rate, or increases the
licensed capacity of the program as a result of decreases in another
program with a lower RCL or lower AFDC-FC rate that is operated by
that provider, unless both of the conditions specified in this
paragraph are met.
(i) The licensee obtains a letter of recommendation from the host
county, primary placing county, or regional consortium of counties
regarding the proposed program change or new program.
(ii) The county determines that there is no increased cost to the
General Fund.
(B) Notwithstanding subparagraph (A), the department may grant a
request for a new program or program change, not to exceed 25 beds,
statewide, if (i) the licensee obtains a letter of recommendation
from the host county, primary placing county, or regional consortium
of counties regarding the proposed program change or new program, and
(ii) the new program or program change will result in a reduction of
referrals to state hospitals during the 1993-94 fiscal year, the
1994-95 fiscal year, the 1995-96 fiscal year, or the 1996-97 fiscal
year.
(l) General unrestricted or undesignated private charitable
donations and contributions made to charitable or nonprofit
organizations shall not be deducted from the cost of providing
services pursuant to this section. The donations and contributions
shall not be considered in any determination of maximum expenditures
made by the department.
(m) The department shall, by October 1 each year, commencing
October 1, 1992, provide the Joint Legislative Budget Committee with
a list of any new departmental requirements established during the
previous fiscal year concerning the operation of group homes, and of
any unusual, industrywide increase in costs associated with the
provision of group care that may have significant fiscal impact on
providers of group homes care. The committee may, in the 1993-94
fiscal year and thereafter, use the list to determine whether an
appropriation for rate adjustments is needed in the subsequent fiscal
year.
(n) This section shall become operative on July 1, 1995.
SEC. 154. Section 14490 of the Welfare and Institutions Code is
amended to read:
14490. In providing benefits under this chapter and Chapter 7
(commencing with Section 14000), the director shall aggressively seek
the development of alternative forms of financing and delivering
health care services. In carrying out the intent of this article,
the director shall contract with institutional providers, counties,
or other organizations to establish pilot programs that demonstrate
the value, or lack thereof, of such a program in delivering or
financing health care services in such a manner. Each pilot program
shall be for a specified duration not to exceed five years, and each
pilot program shall be evaluated annually for its efficiency,
effectiveness, and quality.
Upon a finding by the director that a pilot program contributes
substantially to the availability of high quality health services and
that those services are cost-effective, the director shall enter
into a contract for a period of up to five years.
Where the director recommends implementation of a pilot program on
a permanent basis, but finds that he or she is not able to implement
on a permanent basis that program immediately upon conclusion of the
program's term, he or she may extend the duration of the pilot
program until the evaluation or permanent implementation can be
accomplished. The extension shall be for a term not in excess of one
year, but may be renewed for additional one-year terms, provided
that the director has completed an evaluation to include findings
that would qualify an extension.
SEC. 155. Section 6 of Chapter 920 of the Statutes of 1994, as
last amended by Chapter 1143 of the Statutes of 1996, is amended to
read:
Sec. 6. It is the intent of the Legislature that the tables set
forth below indicating the derivation of the Elections Code sections
as contained in Section 2 of this act, and the disposition of the
provisions of the 1961 Elections Code, serve as a temporary guide to
the Elections Code as enacted by this act.
The information contained in the tables set forth below is for
informational purposes only, and shall not be construed as creating
any new right, power, duty, or other obligation, or as changing,
limiting, or repealing any right, power, duty, or other obligation
that existed on the effective date of this act.
SEC. 156. Section 5 of Chapter 76 of the Statutes of 1996 is
amended to read:
Sec. 5. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to provide guidance and clarification that is essential
to the fair and efficient taxation of intercounty pipeline
rights-of-way, it is necessary that this act take effect immediately.
SEC. 157. Section 1 of Chapter 663 of the Statutes of 1996 is
amended to read:
Section 1. The Legislature finds and declares as follows:
(a) That Chapter 5 (commencing with Section 6500) of Division 7 of
Title 1 of the Government Code, commonly referred to as the Joint
Exercise of Powers Act, allows two or more public agencies to enter
into agreements to jointly exercise their common powers.
(b) That Section 65101 of the Government Code allows two or more
cities and counties to create joint area planning agencies to
exercise the powers and perform the duties of the Planning and Zoning
Law, as set forth in Title 7 (commencing with Section 65000) of the
Government Code.
(c) That the County of Riverside, the City of Moreno Valley, the
City of Perris, and the City of Riverside have formed a joint powers
agency called the March Joint Powers Authority to coordinate and
promote the reuse of the March Air Force Base and adjacent territory.
(d) That existing law allows the March Joint Powers Authority to
exercise the powers and perform the duties of the legislative body or
any other planning agency of a city, county, or city and county
under the Planning and Zoning Law, if authorized by the joint powers
agreement that governs the authority. This finding is consistent
with the opinion of the Legislative Counsel of California, No. 24940,
dated August 1, 1996, printed in the Senate Daily Journal for the
1995-96 Regular Session of the California Legislature of August 23,
1996, at pages 5811 to 5815, inclusive.
(e) The March Joint Powers Authority may exercise the powers and
perform the duties set forth in the Planning and Zoning Law within
the territory specified by and pursuant to the terms of the joint
powers agreement which governs the authority.
(f) The findings and declarations contained in this act do not
constitute a change in, but are declaratory of, existing law.
(g) This act does not affect the authority of a local agency,
under provisions of law as they read on the effective date of this
act, to perform any function set forth in this act.
SEC. 158. Section 1 of Chapter 947 of the Statutes of 1996 is
amended to read:
Section 1. (a) The sum of two million two hundred fifty thousand
dollars ($2,250,000) is hereby appropriated from the General Fund to
the Superintendent of Public Instruction for the 1996-97 fiscal year
only, for allocation to the Los Angeles Unified School District for
the purpose of providing an early intervention program for at-risk
pupils in grades 6 to 8, inclusive, who are otherwise eligible to be
served by community day schools pursuant to Section 48662 of the
Education Code. This early intervention program shall include the
following:
(1) Pupil attendance at an intensive residential program located
at a site other than the regular campus for a five-week period. The
program shall include at least 175 hours of direct instruction, 25
hours of study hall, counseling services, and instruction in conflict
resolution.
(2) Attendance by participating pupils in a course of study
determined by the school district to be appropriate for pupils
identified pursuant to Section 48662 of the Education Code for the
remainder of the school year.
(3) Twelve hours of training for parents of pupils attending the
residential program.
(b) The Los Angeles Unified School District may contract with an
outside public entity for the provision of the intensive residential
program specified in subdivision (a) if the public entity has
provided that type of service for at least two years, and can
demonstrate that attendance by pupils in the residential program has
improved pupils' regular school attendance and has lowered the number
of pupil suspensions or pupil referrals for disciplinary action by
at least 60 percent.
(c) The State Department of Education shall conduct a review of
the early intervention program operated by the Los Angeles Unified
School District and shall report the findings of the review to the
Legislature on or before January 31, 1997.
(d) For purposes of making computations required by Section 8 of
Article XVI of the California Constitution, the appropriation made by
subdivision (a) shall be deemed to be "General Fund revenues
appropriated to school districts," as defined in subdivision (c) of
Section 41202 of the Education Code, for the 1995-96 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 the 1995-96 fiscal year.
SEC. 159. Any section of any act enacted by the Legislature during
the 1997 calendar year that takes effect on or before January 1,
1998, 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 1997 calendar year and takes
effect on or before January 1, 1998, amends, amends and renumbers,
adds, repeals and adds, or repeals any section contained in that
article, chapter, part, title, or division.