BILL NUMBER: SB 1307 ENROLLED
BILL TEXT
PASSED THE SENATE SEPTEMBER 7, 1999
PASSED THE ASSEMBLY SEPTEMBER 1, 1999
AMENDED IN ASSEMBLY AUGUST 31, 1999
AMENDED IN ASSEMBLY AUGUST 19, 1999
AMENDED IN ASSEMBLY JULY 7, 1999
AMENDED IN SENATE MAY 12, 1999
AMENDED IN SENATE APRIL 14, 1999
INTRODUCED BY Committee on Business and Professions (Senators
Figueroa (Chair), Johannessen, Murray, O'Connell, Polanco, and
Speier)
MARCH 11, 1999
An act to amend Sections 101.1, 6787, 6799, 7003, 7215.6, 8016,
8024.2, 8024.3, 8024.4, 8024.6, 8025, 8031, 8516, 8516.1, 8518,
8519.5, 8556, 8617, 8652, 8656, 8662, 8674, 8674.5, 8698, 8698.1,
8698.5, 8698.6, 8780, 8792, 8805, 9884, 22250, 22251, 22253, 22254,
and 22255 of, to add Sections 6762.5, 7426.5, and 8747.5 to, and to
repeal Sections 7343, 8614, and 8615 of, the Business and Professions
Code, and to amend Section 803 of the Penal Code, relating to
licensed professionals, and making an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
SB 1307, Committee on Business and Professions. Licensed
professionals.
(1) Existing law establishes within the Department of Consumer
Affairs a State Board of Guide Dogs for the Blind, which licenses
schools for the training of guide dogs for the blind. Existing law
establishes, until July 1, 2002, a pilot project for the arbitration
of disputes between guide dog users and guide schools relating to the
continued physical custody and use of the guide dog when the dog
user is not the legal owner of the dog. Pursuant to this provision,
guide dog users who are dissatisfied with decisions of schools
regarding continued use of the guide dogs may appeal to the board to
convene an arbitration panel. The arbitration panel includes a
representative of the board who serves as chair of the panel.
This bill would provide that the board and its representative are
not a party to any dispute described in that provision. The bill
would also provide that each party to the dispute waives any right
for subsequent judicial review by voluntarily agreeing to have the
dispute resolved by the board.
(2) Existing law with respect to the regulation of tax preparers
specifies certain educational requirements.
This bill would revise and recast those requirements, as
specified, and, among other things, prohibit the giving of false and
misleading information to the California Tax Education Council. A
violation of provisions regulating tax preparers is a crime. In
enlarging the scope of an existing crime the bill would impose a
state-mandated local program.
(3) Existing law provides for the licensing and regulation of
various professions, including barbering and cosmetology, and
structural pest control, as defined, and automotive repair.
The bill would, with respect to the provisions governing barbering
and cosmetology, repeal a provision that provides that an applicant
who, without good cause, fails to appear for an examination after
being notified of his or her eligibility for the exam, forfeits the
examination fee. The bill would also authorize the board to make an
administrative change with respect to the collection of fees, as
specified.
The bill would expand the definition of a structural pest control
field representative, as specified. The bill would revise and recast
various other structural pest control provisions and requirements
and make other technical changes. Among other things, the bill would
revise certain inspection report requirements with respect to
inspections for wood destroying pests or organisms and wood roof
cleaning and treatment. The bill would also revise requirements with
respect to notices of work completed and not completed. It would
delete provisions providing any person, whether or not a party to a
real property transaction the right to obtain from the board copies
of inspection reports, as specified. It would revise certain notices
of proposed action provisions, make certain inspection report
requirements applicable to field notes and notices of work completed,
and revise and recast certain suspension and fine provisions.
The bill would also require an automotive repair dealer, to the
extent required by the Director of Consumer Affairs, to identify
members and trustees who indirectly control or conduct the business
on prescribed forms. Since a violation of this provision would be a
misdemeanor, the bill would create a new crime, thereby imposing a
state-mandated local program.
(4) Existing law, the Professional Engineers Act and the
Professional Land Surveyors' Act, provides for the registration and
licensure, respectively, of professional engineers and land surveyors
under the jurisdiction of the Board for Professional Engineers and
Land Surveyors.
This bill would require the board to issue, upon application and
payment of a specified fee to be established under an existing
schedule for active licensees, a retired professional engineer's
license and a retired land surveyor's license, as specified. Because
this bill would provide for new fees to be deposited into the
Professional Engineer's and Land Surveyor's Fund, a continuously
appropriated special fund, this bill would make an appropriation.
(5) Existing law regulating professional engineers and land
surveyors makes it a crime to, among other things, impersonate or use
the seal of any other practitioner.
This bill would instead make it a crime for any person to
impersonate or use the seal of a licensed professional engineer, or
licensed professional land surveyor, respectively. By changing the
definition of a crime, this bill would impose a state-mandated local
program.
The bill would also make misrepresentation in the practice of land
surveying a basis for license suspension or revocation.
(6) Existing law regulates the certification requirements for
shorthand reporters. Exempted from certification requirements, among
others, are salaried, full-time employees of a district attorney.
This bill would remove that exemption. It would prohibit the
renewal of expired, suspended, or revoked certificates if the
certificate holder has failed to pay monetary sanctions imposed by a
court for failure to provide timely transcripts and makes the record
of a court order or a certified copy of the order conclusive evidence
that the sanction was imposed. This bill would also prohibit the
renewal of a certificate, and would authorize disciplinary action, if
a certificate holder fails to pay a penalty imposed for a failure to
notify the board of a change of name or address.
Existing law establishes the fee for filing an application for
each certifying examination.
This bill would add provisions setting the maximum fee for
administering this examination, it would increase the maximum
duplicate certificate fee from $5 to $10, and would increase the
penalty for a failure to notify the board of a change of name or
address from $20 to $50.
(7) Existing law, with respect to the time for commencing certain
criminal actions, provides for the tolling or extension of certain
time periods and provides that a limitation of time does not commence
to run until certain specified offenses have been discovered, or
could have reasonably been discovered.
This bill would include as one of the enumerated offenses within
that provision the theft or embezzlement of the property of an elder
or dependent adult by a person who is not a caretaker. This bill
would restore language previously chaptered out in 1998 with respect
to the addition of certain enumerated offenses within that provision.
(8) Existing law provides that provisions establishing a
structural fumigation enforcement program, as specified, shall be
repealed effective January 1, 2000.
This bill would extend that date of repeal until July 1, 2003, and
would make related changes.
(9) This bill would make various other technical and conforming
changes, as specified.
(10) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Appropriation: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 101.1 of the Business and Professions Code is
amended to read:
101.1. (a) It is the intent of the Legislature that all existing
and proposed consumer-related boards or categories of licensed
professionals be subject to a review every four years to evaluate and
determine whether each board has demonstrated a public need for the
continued existence of that board in accordance with enumerated
factors and standards as set forth in Division 1.2 (commencing with
Section 473).
(b) (1) In the event that any board, as defined in Section 477,
becomes inoperative or is repealed in accordance with the act that
added this section, or by subsequent acts, the Department of Consumer
Affairs shall succeed to and is vested with all the duties, powers,
purposes, responsibilities and jurisdiction not otherwise repealed or
made inoperative of that board and its executive officer.
(2) Any provision of existing law that provides for the
appointment of board members and specifies the qualifications and
tenure of board members shall not be implemented and shall have no
force or effect while that board is inoperative or repealed. Every
reference to the inoperative or repealed board, as defined in Section
477, shall be deemed to be a reference to the department.
(3) Notwithstanding Section 107, any provision of law authorizing
the appointment of an executive officer by a board subject to the
review described in Division 1.2 (commencing with Section 473), or
prescribing his or her duties, shall not be implemented and shall
have no force or effect while the applicable board is inoperative or
repealed. Any reference to the executive officer of an inoperative or
repealed board shall be deemed to be a reference to the director or
his or her designee.
(c) It is the intent of the Legislature that subsequent
legislation to extend or repeal the inoperative date for any board
shall be a separate bill for that purpose.
SEC. 2. Section 6762.5 is added to the Business and Professions
Code, to read:
6762.5. (a) The board shall issue, upon application and payment
of the fee established by Section 6799, a retired license
(registration), to an engineer who has been licensed by the board for
a minimum of 5 years within California and a minimum of 20 years
within the United States or territory of the United States, and who
holds a license that is not suspended, revoked, or otherwise
disciplined, or subject to pending discipline under this chapter.
(b) The holder of a retired license issued pursuant to this
section shall not engage in any activity for which an active engineer'
s license is required. An engineer holding a retired license shall
be permitted to use the titles "retired professional engineer,"
"professional engineer, retired," or either of those titles with the
licensee's branch designation inserted for the word "professional"
for example, "retired civil engineer" or "civil engineer, retired."
(c) The holder of a retired license shall not be required to renew
that license.
(d) In order for the holder of a retired license issued pursuant
to this section to restore his or her license to active status, he or
she shall pass the second division examination that is required for
initial licensure with the board.
SEC. 3. Section 6787 of the Business and Professions Code is
amended to read:
6787. Every person is guilty of a misdemeanor and for each
offense of which he or she is convicted is punishable by a fine of
not more than one thousand dollars ($1,000) or by imprisonment not to
exceed three months, or by both that fine and imprisonment:
(a) Who, unless he or she is exempt from registration under this
chapter, practices or offers to practice civil, electrical, or
mechanical engineering in this state according to the provisions of
this chapter without legal authorization.
(b) Who presents or attempts to file as his or her own the
certificate of registration of another.
(c) Who gives false evidence of any kind to the board, or to any
member thereof, in obtaining a certificate of registration.
(d) Who impersonates or uses the seal of a licensed professional
engineer.
(e) Who uses an expired or revoked certificate of registration.
(f) Who shall represent himself or herself as, or use the title
of, registered civil, electrical, or mechanical engineer, or any
other title whereby such person could be considered as practicing or
offering to practice civil, electrical, or mechanical engineering in
any of its branches, unless he or she is correspondingly qualified by
registration as a civil, electrical, or mechanical engineer under
this chapter.
(g) Who, unless appropriately registered, manages, or conducts as
manager, proprietor, or agent, any place of business from which
civil, electrical, or mechanical engineering work is solicited,
performed, or practiced.
(h) Who uses the title, or any combination of that title, of
"professional engineer," "licensed engineer," "registered engineer,"
or the branch titles specified in Section 6732, or the authority
titles specified in Section 6763, or "engineer-in-training," or who
makes use of any abbreviation of that title which might lead to the
belief that he or she is a registered engineer, without being
registered as required by this chapter.
(i) Who uses the title "consulting engineer" without being
registered as required by this chapter or without being authorized to
use that title pursuant to legislation enacted at the 1963, 1965 or
1968 Regular Session.
(j) Who violates any provision of this chapter.
SEC. 4. Section 6799 of the Business and Professions Code is
amended to read:
6799. The amount of the fees prescribed by this chapter shall be
fixed by the board in accordance with the following schedule:
(a) The fee for filing each application for registration as a
professional engineer and each application for authority level
designation at not more than one hundred seventy-five dollars ($175),
and for each application for certification as an
engineer-in-training at not more than sixty dollars ($60).
(b) The temporary registration fee for a professional engineer at
not more than 25 percent of the application fee in effect on the date
of application.
(c) The renewal fee for each branch of professional engineering in
which registration is held, and the renewal fee for each authority
level designation held, at no more than the professional engineer
application fee currently in effect.
(d) The fee for a retired license at not more than 50 percent of
the professional engineer application fee in effect on the date of
application.
(e) The delinquency fee at not more than 50 percent of the renewal
fee in effect on the date of reinstatement.
(f) The board shall establish by regulation an appeal fee for
examination. The regulation shall include provisions for an
applicant to be reimbursed the appeal fee if the appeal results in
passage of examination. The fee charged shall be no more than the
costs incurred by the board.
(g) All other document fees are to be set by the board by rule.
Applicants wishing to be examined in more than one branch of
engineering shall be required to pay the additional fee for each
examination after the first.
SEC. 5. Section 7003 of the Business and Professions Code is
amended to read:
7003. Except as otherwise provided, an appointment to fill a
vacancy caused by the expiration of the term of office shall be for a
term of four years and shall be filled, except for a vacancy in the
term of a public member, by a member from the same branch of the
contracting business as was the branch of the member whose term has
expired. A vacancy in the term of a public member shall be filled by
another public member. Each member shall hold office until the
appointment and qualification of his or her successor or until the
office is deemed to be vacant pursuant to Section 1774 of the
Government Code, whichever first occurs.
Vacancies occurring in the membership of the board for any cause
shall be filled by appointment for the balance of the unexpired term.
No person shall serve as a member of the board for more than two
consecutive terms.
The Governor shall appoint five of the public members, including
the local building official, and the six members qualified as
provided in Section 7002. The Senate Rules Committee and the Speaker
of the Assembly shall each appoint a public member.
SEC. 6. Section 7215.6 of the Business and Professions Code is
amended to read:
7215.6. (a) In order to provide a procedure for the resolution of
disputes between guide dog users and guide dog schools relating to
the continued physical custody and use of a guide dog, in all cases
except those in which the dog user is the unconditional legal owner
of the dog, the following arbitration procedure shall be established
as a pilot project.
(b) This procedure establishes an arbitration panel for the
settlement of disputes between a guide dog user and a licensed guide
dog school regarding the continued use of a guide dog by the user in
all cases except those in which the dog user is the unconditional
legal owner of the dog. The disputes which may be subject to this
procedure concern differences between the user and school over
whether or not a guide dog should continue to be used, differences
between the user and school regarding the treatment of a dog by the
user, and differences over whether or not a user should continue to
have custody of a dog pending investigation of charges of abuse. It
specifically does not address issues such as admissions to schools,
training practices, or other issues relating to school standards.
The board and its representative are not parties to any dispute
described in this section.
(c) The licensed guide dog schools in California and the board
shall provide to guide dog users graduating from guide dog programs
in these schools a new avenue for the resolution of disputes that
involve continued use of a guide dog, or the actual physical custody
of a guide dog. Guide dog users who are dissatisfied with decisions
of schools regarding continued use of guide dogs may appeal to the
board to convene an arbitration panel composed of all of the
following:
(1) One person designated by the guide dog user.
(2) One person designated by the licensed guide dog school.
(3) A representative of the board who shall coordinate the
activities of the panel and serve as chair.
(d) If the guide dog user or guide dog school wishes to utilize
the arbitration panel, this must be stated in writing to the board.
The findings and decision of the arbitration panel shall be final and
binding. By voluntarily agreeing to having a dispute resolved by
the arbitration panel and subject to its procedures, each party to
the dispute shall waive any right for subsequent judicial review.
(e) A licensed guide dog school that fails to comply with any
provision of this section shall automatically be subject to a penalty
of two hundred fifty dollars ($250) per day for each day in which a
violation occurs. The penalty shall be paid to the board. The
license of a guide dog school shall not be renewed until all
penalties have been paid.
The fine shall be assessed without advance hearing, but the
licensee may apply to the board for a hearing on the issue of whether
the fine should be modified or set aside. This application shall be
in writing and shall be received by the board within 30 days after
service of notice of the fine. Upon receipt of this written request,
the board shall set the matter for hearing within 60 days.
(f) As a general rule, custody of the guide dog shall remain with
the guide dog user pending a resolution by the arbitration panel. In
circumstances where the immediate health and safety of the guide dog
user or guide dog is threatened, the licensed school may take
custody of the dog at once. However, if the dog is removed from the
user's custody without the user's concurrence, the school shall
provide to the board the evidence that caused this action to be taken
at once and without fail; and within five calendar days a special
committee of two members of the board shall make a determination
regarding custody of the dog pending hearing by the arbitration
panel.
(g) The arbitration panel shall decide the best means to determine
final resolution in each case. This shall include, but is not
limited to, a hearing of the matter before the arbitration panel at
the request of either party to the dispute, an opportunity for each
party in the dispute to make presentations before the arbitration
panel, examination of the written record, or any other inquiry as
will best reveal the facts of the disputes. In any case, the panel
shall make its findings and complete its examination within 45
calendar days of the date of filing the request for arbitration, and
a decision shall be rendered within 10 calendar days of the
examination.
All arbitration hearings shall be held at sites convenient to the
parties and with a view to minimizing costs. Each party to the
arbitration shall bear its own costs, except that the arbitration
panel, by unanimous agreement, may modify this arrangement.
(h) The board may study the effectiveness of the arbitration panel
pilot project in expediting resolution and reducing conflict in
disputes between guide dog users and guide dog schools and may share
its findings with the Legislature upon request.
(i) This section shall cease to be operative on July 1, 2002, and
as of January 1, 2003, is repealed, unless a later enacted statute,
which is enacted before January 1, 2003, deletes or extends that
date.
SEC. 7. Section 7343 of the Business and Professions Code is
repealed.
SEC. 8. Section 7426.5 is added to the Business and Professions
Code, to read:
7426.5. The board may, by regulation, divide the fees payable
under this chapter relating to licenses into separate categories
based upon processing functions, such as application review,
examination administration, or license issuance, provided that the
combined fees for those processing functions do not exceed the
maximum amount prescribed by the license category.
The board may, by regulation, establish procedures whereby some or
all of a fee submitted in connection with an application for
licensure would be forfeited by an applicant who has withdrawn his or
her application, fails to appear for an examination, or is required
to retake an examination.
SEC. 9. Section 8016 of the Business and Professions Code is
amended to read:
8016. No person shall engage in the practice of shorthand
reporting as defined in this chapter, unless that person is the
holder of a certificate in full force and effect issued by the board.
This section does not apply to a salaried, full-time employee of
any department or agency of the state who is employed as a hearing
reporter.
This section shall apply to all persons who are appointed, on and
after January 1, 1983, to the position of official reporter or pro
tempore official reporter of any court, as defined in the Government
Code.
SEC. 9.2. Section 8024.2 of the Business and Professions Code is
amended to read:
8024.2. (a) Except as otherwise provided in this article, a
certificate which has expired may be renewed at any time within the
period set forth in Section 8024.5 by doing all of the following:
(1) Apply for renewal on a form prescribed by the board.
(2) Pay the renewal fee prescribed by this chapter.
(3) Notify the board whether he or she has been convicted of any
felony, any crime substantially related to the functions and duties
of a court reporter, or any disciplinary action taken by any
regulatory or licensing board in this or any other state, subsequent
to the licensee's last renewal.
(b) If the certificate is not renewed within 30 days after its
expiration, the certificate holder, as a condition precedent to
renewal, shall also pay the delinquency fee set forth in Section
163.5. Renewal under this section shall be effective on the date on
which the renewal fee is paid, or on the date on which the
delinquency fee, if any, is paid, whichever last occurs. If so
renewed, the certificate shall continue in effect through the date
provided in Section 8024 which next occurs after the effective date
of the renewal, when it shall expire if it is not again renewed.
The certificate shall not be renewed if the certificate holder has
failed to pay monetary sanctions identified in subdivision (g) of
Section 8025.
SEC. 9.3. Section 8024.3 of the Business and Professions Code is
amended to read:
8024.3. A suspended certificate is subject to expiration and
shall be renewed as provided in this article, but such renewal does
not entitle the holder of the certificate, while it remains suspended
and until it is reinstated, to engage in the activity to which the
certificate relates, or in any other activity or conduct in violation
of the order or judgment by which it was suspended.
The certificate shall not be renewed if the certificate holder has
failed to pay monetary sanctions identified in subdivision (g) of
Section 8025.
SEC. 9.4. Section 8024.4 of the Business and Professions Code is
amended to read:
8024.4. A revoked certificate is subject to expiration as
provided in this article, but it may not be renewed. If it is
reinstated after its expiration, the holder of the certificate, as a
condition precedent to its reinstatement, shall pay a reinstatement
fee in an amount equal to the renewal fee in effect on the last
regular renewal date before the date on which it is reinstated, plus
the delinquency fee, if any, accrued at the time of its revocation.
The certificate shall not be renewed if the certificate holder has
failed to pay monetary sanctions identified in subdivision (g) of
Section 8025.
SEC. 9.5. Section 8024.6 of the Business and Professions Code is
amended to read:
8024.6. (a) A certificate holder shall give written notice to the
board at its office in Sacramento of a name change within 30 days
after each change, giving both the old and the new names. A copy of
the legal document affecting the name change, such as a court order
or marriage certificate, shall be submitted with the notice.
(b) Each certificate holder shall notify the board in writing at
its office in Sacramento of a change of address within 30 days after
each change, giving both the old and the new addresses.
(c) A penalty as provided in this chapter shall be paid by each
certificate holder who fails to notify the board within 30 days as
specified in this section. Any certificate holder to whom this
penalty applies who fails to pay that penalty shall not have their
certificate renewed without payment of that penalty, and the board
may take disciplinary action.
SEC. 9.6. Section 8025 of the Business and Professions Code is
amended to read:
8025. A certificate issued under this chapter may be suspended or
revoked, or certification may be denied, for one or more of the
following causes:
(a) Conviction of a crime substantially related to the
qualifications, functions, and duties of a certified shorthand
reporter. The record of conviction, or a certified copy thereof, is
conclusive evidence of the conviction.
(b) Failure to notify the board of a conviction described in
subdivision (a), in accordance with Section 8024 or 8024.2.
(c) Fraud or misrepresentation resorted to in obtaining a
certificate hereunder.
(d) Fraud, dishonesty, corruption, willful violation of duty,
gross negligence or incompetency in practice, or unprofessional
conduct in the practice of shorthand reporting.
"Unprofessional conduct" includes, but is not limited to, acts
contrary to professional standards concerning confidentiality;
impartiality; filing and retention of notes; notifications,
availability, delivery, execution and certification of transcripts;
and any provision of law substantially related to the duties of a
certified shorthand reporter.
(e) Repeated unexcused failure, whether or not willful, to
transcribe notes of cases pending on appeal and to file the
transcripts of those notes within the time required by law or to
transcribe or file notes of other proceedings within the time
required by law or agreed by contract. Violation of this subdivision
shall also be deemed an act endangering the public health, safety,
or welfare within the meaning of Section 494.
(f) Loss or destruction of stenographic notes, whether on paper or
electronic media, which prevents the production of a transcript due
to negligence of the licensee.
(g) Failure to comply with, or to pay a monetary sanction imposed
by, any court for failure to provide timely transcripts. The record
of the court order, or a certified copy thereof, is conclusive
evidence that the sanction was imposed.
(h) Violation of this chapter or the statutes, rules, and
regulations pertaining to certified shorthand reporters.
SEC. 9.7. Section 8031 of the Business and Professions Code is
amended to read:
8031. The amount of the fees required by this chapter is that
fixed by the board in accordance with the following schedule:
(a) The fee for filing an application for each examination shall
be no more than forty dollars ($40).
(b) The fee for examination and reexamination for the written or
practical part of the examination shall be in an amount fixed by the
board, which shall be equal to the actual cost of preparing,
administering, grading, and analyzing the examination, but shall not
exceed seventy-five dollars ($75) for each separate part, for each
administration.
(c) The initial certificate fee is an amount equal to the renewal
fee in effect on the last regular renewal date before the date on
which the certificate is issued, except that, if the certificate will
expire less than 180 days after its issuance, then the fee is 50
percent of the renewal fee in effect on the last regular renewal date
before the date on which the certificate is issued, or fifty dollars
($50), whichever is greater. The board may, by appropriate
regulation, provide for the waiver or refund of the initial
certificate fee where the certificate is issued less than 45 days
before the date on which it will expire.
(d) By a resolution adopted by the board, a renewal fee may be
established in such amounts and at such times as the board may deem
appropriate to meet its operational expenses and funding
responsibilities as set forth in this chapter. The renewal fee shall
not be more than one hundred twenty-five dollars ($125) nor less
than ten dollars ($10) annually, with the following exception:
Any person who is employed full time by the State of California as
a hearing reporter and who does not otherwise render shorthand
reporting services for a fee shall be exempt from licensure while in
state employment and shall not be subject to the renewal fee
provisions of this subdivision until 30 days after leaving state
employment. The renewal fee shall, in addition to the amount fixed
by this subdivision, include any unpaid fees required by this section
plus any delinquency fee.
(e) The duplicate certificate fee shall be no greater than ten
dollars ($10).
(f) The penalty for failure to notify the board of a change of
name or address as required by Section 8024.6 shall be no greater
than fifty dollars ($50).
SEC. 10. Section 8516 of the Business and Professions Code is
amended to read:
8516. (a) This section, and Section 8519, apply only to wood
destroying pests or organisms, but do not apply to work conducted
pursuant to Section 8516.1.
(b) No registered company or licensee shall commence work on a
contract, or sign, issue, or deliver any documents expressing an
opinion or statement relating to the absence or presence of wood
destroying pests or organisms until an inspection has been made by a
licensed Branch 3 field representative or operator. The address of
each property inspected or upon which work is completed shall be
reported on a form prescribed by the board and shall be filed with
the board no later than 10 business days after the commencement of an
inspection or upon completed work.
Every property inspected pursuant to subdivision (b) of Section
8516.1, or Section 8518, or subdivision (b) of this section shall be
assessed a filing fee pursuant to Section 8674.
Failure of a registered company to report and file with the board
the address of any property inspected or work completed pursuant to
Section 8516.1, Section 8518, or this section are grounds for
disciplinary action and shall subject the registered company to a
fine of not more than two thousand five hundred dollars ($2,500).
A written inspection report conforming to this section and on a
form approved by the board shall be prepared and delivered to the
person requesting the inspection or to the person's designated agent
within 10 business days of the inspection, except that an inspection
report prepared for use by an attorney for litigation purposes is not
required to be reported to the board. The report shall be delivered
before work is commenced on any property. The registered company
shall retain for three years all original inspection reports, filed
notes, and activity forms.
Reports shall be made available for inspection and reproduction to
the executive officer of the board or his or her duly authorized
representative during business hours. Original inspection reports or
copies thereof shall be submitted to the board upon request within
two business days. The following shall be set forth in the report:
(1) The date of the inspection and the name of the licensed field
representative or operator making the inspection.
(2) The name and address of the person or firm ordering the
report.
(3) The name and address of any person who is a party in interest.
(4) The address or location of the property.
(5) A general description of the building or premises inspected.
(6) A foundation diagram or sketch of the structure or structures
or portions of the structure or structures inspected, indicating
thereon the approximate location of any infested or infected areas
evident, and the parts of the structure where conditions that would
ordinarily subject those parts to attack by wood destroying pests or
organisms exist.
(7) Information regarding the substructure, foundation walls and
footings, porches, patios and steps, air vents, abutments, attic
spaces, roof framing that includes the eaves, rafters, fascias,
exposed timbers, exposed sheathing, ceiling joists, and attic walls,
or other parts subject to
attack by wood destroying pests or organisms. Conditions usually
deemed likely to lead to infestation or infection, such as earth-wood
contacts, excessive cellulose debris, faulty grade levels, excessive
moisture conditions, evidence of roof leaks, and insufficient
ventilation are to be reported.
(8) One of the following statements, as appropriate, printed in
bold type:
(A) The exterior surface of the roof was not inspected. If you
want the water tightness of the roof determined, you should contact a
roofing contractor who is licensed by the Contractors' State License
Board.
(B) The exterior surface of the roof was inspected to determine
whether or not wood destroying pests or organisms are present.
(9) Indication or description of any areas that are inaccessible
or not inspected with recommendation for further inspection if
practicable. If, after the report has been made in compliance with
this section, authority is given later to open inaccessible areas, a
supplemental report on conditions in these areas shall be made.
(10) Recommendations for corrective measures.
(11) Information regarding the pesticide or pesticides to be used
for their control as set forth in subdivision (a) of Section 8538.
(12) The inspection report shall clearly disclose that if
requested by the person ordering the original report, a reinspection
of the structure will be performed if an estimate or bid for making
repairs was given with the original inspection report, or thereafter.
(13) The inspection report shall contain the following statement,
printed in boldface type:
"NOTICE: Reports on this structure prepared by various registered
companies should list the same findings (i.e. termite infestations,
termite damage, fungus damage, etc.). However, recommendations to
correct these findings may vary from company to company. You have a
right to seek a second opinion from another company."
An estimate or bid for repairs shall be given separately
allocating the costs to perform each and every recommendation for
corrective measures as specified in subdivision (c) with the original
inspection report if the person who ordered the original inspection
report so requests, and if the registered company is regularly in the
business of performing corrective measures.
If no estimate or bid was given with the original inspection
report, or thereafter, then the registered company shall not be
required to perform a reinspection.
A reinspection shall be an inspection of those items previously
listed on an original report to determine if the recommendations have
been completed. Each reinspection shall be reported on an original
inspection report form and shall be labeled "Reinspection" in capital
letters by rubber stamp or typewritten. Each reinspection shall
also identify the original report by date and stamp numbers.
After four months from an original inspection, all inspections
shall be original inspections and not reinspections.
Any reinspection shall be performed for not more than the price of
the registered company's original inspection price and shall be
completed within 10 working days after a reinspection has been
ordered.
(c) At the time a report is ordered, the registered company or
licensee shall inform the person or entity ordering the report, that
a separated report is available pursuant to this subdivision. If a
separated report is requested at the time the inspection report is
ordered, the registered company or licensee shall separately identify
on the report each recommendation for corrective measures as
follows:
(1) The infestation or infection that is evident.
(2) The conditions that are present that are deemed likely to lead
to infestation or infection.
If a registered company or licensee fails to inform as required by
this subdivision and a dispute arises, or if any other dispute
arises as to whether this subdivision has been complied with, a
separated report shall be provided within 24 hours of the request
but, in no event, later than the next business day, and at no
additional cost.
(d) When a corrective condition is identified, either as paragraph
(1) or (2) of subdivision (c), and the responsible party, as
negotiated between the buyer and the seller, chooses not to correct
those conditions, the registered company or licensee shall not be
liable for damages resulting from a failure to correct those
conditions or subject to any disciplinary action by the board.
Nothing in this subdivision, however, shall relieve a registered
company or a licensee of any liability resulting from negligence,
fraud, dishonest dealing, other violations pursuant to this chapter,
or contractual obligations between the registered company or licensee
and the responsible parties.
(e) The inspection report form prescribed by the board shall
separately identify the infestation or infection that is evident and
the conditions that are present that are deemed likely to lead to
infestation or infection. If a separated form is requested, the form
shall explain the infestation or infection that is evident and the
conditions that are present that are deemed likely to lead to
infestation or infection and the difference between those conditions.
In no event, however, shall conditions deemed likely to lead to
infestation or infection be characterized as actual "defects" or as
actual "active" infestations or infections or in need of correction
as a precondition to issuing a certification pursuant to Section
8519.
(f) The report and any contract entered into shall also state
specifically when any guarantee for the work is made, and if so, the
specific terms of the guarantee and the period of time for which the
guarantee shall be in effect.
(g) Control service is defined as the regular reinspection of a
property after a report has been made in compliance with this section
and any corrections as have been agreed upon have been completed.
Under a control service agreement a registered company shall refer to
the original report and contract in a manner as to identify them
clearly, and the report shall be assumed to be a true report of
conditions as originally issued, except it may be modified after a
control service inspection. A registered company is not required to
issue a report as outlined in paragraphs (1) to (11), inclusive, of
subdivision (b) after each control service inspection. If after
control service inspection, no modification of the original report is
made in writing, then it will be assumed that conditions are as
originally reported. A control service contract shall state
specifically the particular wood destroying pests or organisms and
the portions of the buildings or structures covered by the contract.
(h) A registered company or licensee may enter into and maintain a
control service agreement provided the following requirements are
met:
(1) The control service agreement shall be in writing, signed by
both parties, and shall specifically include the following:
(A) The wood destroying pests and organisms that could infest and
infect the structure.
(B) The wood destroying pests and organisms covered by the control
service agreement. Any wood destroying pest or organism that is not
covered must be specifically listed.
(C) The type and manner of treatment to be used to correct the
infestations or infections.
(D) The structures or buildings, or portions thereof, covered by
the agreement, including a statement specifying whether the coverage
for purposes of periodic inspections is limited or full. Any
exclusions from those described in the original report must be
specifically listed.
(E) A reference to the original inspection report and agreement.
(F) The frequency of the inspections to be provided, the fee to be
charged for each renewal, and the duration of the agreement.
(G) Whether the fee includes structural repairs.
(H) If the services provided are guaranteed, and, if so, the terms
of the guarantee.
(I) A statement that all corrections of infestations or infections
covered by the control service agreement shall be completed within
six months of discovery, unless otherwise agreed to in writing by
both parties.
(2) Inspections made pursuant to a control service agreement shall
be conducted by a Branch 3 licensee. Section 8506.1 does not modify
this provision.
(3) A full inspection of the property covered by the control
service agreement shall be conducted and a report filed pursuant to
subdivision (b) at least once every three years from the date that
the agreement was entered into, unless the consumer cancels the
contract within three years from the date the agreement was entered
into.
(4) A written report shall be required for the correction of any
infestation or infection unless all of the following conditions are
met:
(A) The infestation or infection has been previously reported.
(B) The infestation or infection is covered by the control service
agreement.
(C) There is no additional charge for correcting the infestation
or infection.
(D) Correction of the infestation or infection takes place within
45 days of its discovery.
(E) Correction of the infestation or infection does not include
fumigation.
(5) All notice requirements pursuant to Section 8538 shall apply
to all pesticide treatments conducted under control service
agreements.
(6) For purposes of this section, "control service agreement"
means any agreement, including extended warranties, to have a
licensee conduct over a period of time regular inspections and other
activities related to the control or eradication of wood destroying
pests and organisms.
(i) All work recommended by a registered company, where an
estimate or bid for making repairs was given with the original
inspection report, or thereafter, shall be recorded on this report or
a separate work agreement and shall specify a price for each
recommendation. This information shall be provided to the person
requesting the inspection, and shall be retained by the registered
company with the inspection report copy for three years.
SEC. 10.1. Section 8516.1 of the Business and Professions Code is
amended to read:
8516.1. (a) This section applies only to work conducted by a wood
roof cleaning and treatment registered company or licensee.
(b) No wood roof cleaning and treatment registered company or
licensee shall commence work on a contract, or sign, issue, or
deliver any documents expressing an opinion or statement relating to
the absence or presence of wood destroying organisms or nondecay
fungi on a wood shake or shingle roof until an inspection has been
made. All inspections performed by these registered companies or
licensees shall be on properties that are not offered for sale,
lease, or exchange, and shall be limited to the wood shakes or
shingles on wood shake or shingle roofs and may only be performed for
purposes of detecting the presence or absence of wood destroying
organisms such as decay fungi on the wood shakes or shingles and
resulting decay, or nondecay fungi such as mold, mildew, lichen, or
moss on the wood shakes or shingles.
(c) The address of each property inspected or upon which work is
completed shall be reported on a form approved by the board and shall
be filed with the board no later than 10 business days after the
commencement of an inspection or upon completed work.
Every property inspected pursuant to subdivision (b) of Section
8516, Section 8518, or subdivision (b) of this section shall be
assessed a filing fee pursuant to Section 8674.
Failure of a registered company to report and file with the board
the address of any property inspected or work completed pursuant to
Section 8516, Section 8518, or this section are grounds for
disciplinary action and shall subject the registered company to a
fine of not more than two thousand five hundred dollars ($2,500).
A written inspection report conforming to this section and on a
form approved by the board shall be prepared and delivered to the
person requesting the inspection or to the person's designated agent
within 10 business days of the inspection. The report shall be
delivered before work is commenced on any property. All wood roof
cleaning and treatment registered companies shall retain for three
years all original inspection reports, field notes, and activity
forms.
Reports shall be made available for inspection and reproduction to
the executive officer of the board or his or her duly authorized
representative during business hours. Original inspection reports or
copies thereof shall be submitted to the board upon request within
two business days.
The following items shall be set forth in the report:
(1) The date of the inspection and the name of the licensee making
the inspection.
(2) The name and address of the person or firm ordering the
report.
(3) The name and address of any person who is a party in interest.
(4) The address or location of the property.
(5) A general description of the roof covering inspected.
(6) A diagram or sketch of the roof inspected indicating thereon
the type and approximate location of any infection of wood destroying
organisms or nondecay fungi.
(7) Information regarding conditions usually deemed likely to lead
to infection of wood destroying organisms and nondecay fungi.
(8) Recommendations for corrective measures.
(9) Information regarding the wood preservative to be used for
control of the wood destroying organisms and nondecay fungi as set
forth in subdivision (a) of Section 8538.
(10) A statement printed in 10-point boldface type, stating that
the corrective measures will not improve the water tightness of the
roof and if the person or entity who ordered the report wants the
roof inspected for a determination of water tightness, that person or
entity should contact a roofing contractor who is licensed by the
Contractors' State License Board.
(11) For purposes of this section and Section 8516, "water
tightness" means that at the time the inspection was performed the
roof would not, under normal climatic conditions, leak.
(d) At the time the report is ordered, the registered company or
licensee shall inform the person or entity ordering the report, that
a separated report is available pursuant to this subdivision. If a
separated report is requested at the time the inspection report is
ordered, the registered company or licensee shall separately identify
on the report each recommendation for corrective measures as
follows:
(1) The infection that is evident.
(2) The conditions that are present that are deemed likely to lead
to infection of wood destroying organisms such as decay fungus.
(3) The conditions that are present that are nondecay fungi such
as mold, mildew, lichen, or moss.
If the registered company or licensee fails to comply with the
requirements of this subdivision and a dispute arises, or if any
dispute arises as to whether this subdivision has been complied with,
a separate report shall be provided to the person or entity ordering
the report within 24 hours of that request, but in no event later
than the next business day, and at no additional cost.
(e) The report and any contract entered into shall also state
specifically when any guarantee for the work is made, and if so, the
specific terms of the guarantee and the period of time for which the
guarantee shall take effect.
(f) All work recommended by the registered company, where an
estimate or bid for making repairs was given with the original
inspection report, or thereafter, shall be recorded on that report or
a separate work agreement and shall specify a price for each
recommendation. This information shall be provided to the person
requesting the inspection, and shall be retained by the registered
company with the inspection report copy for two years.
(g) All wood roof cleaning and treatment registered companies
shall possess a current roofing contractor's license issued by the
Contractors' State License Board.
SEC. 10.2. Section 8518 of the Business and Professions Code is
amended to read:
8518. When a registered company completes work under a contract,
it shall prepare, on a form prescribed by the board, a notice of work
completed and not completed, and shall furnish that notice to the
owner of the property or the owner's agent within 10 working days
after completing the work. The notice shall include a statement of
the cost of the completed work and estimated cost of work not
completed.
The address of each property inspected or upon which work was
completed shall be reported on a form prescribed by the board and
shall be filed with the board no later than 10 working days after
completed work.
Every property upon which work is completed shall be assessed a
filing fee pursuant to Section 8674.
Failure of a registered company to report and file with the board
the address of any property upon which work was completed pursuant to
subdivision (b) of Section 8516, subdivision (b) of Section 8516.1,
or Section 8518 are grounds for disciplinary action and shall subject
the registered company to a fine of not more than two thousand five
hundred dollars ($2,500).
The registered company shall retain for three years all original
notices of work completed, work not completed, and activity forms.
Notices of work completed and not completed shall be made
available for inspection and reproduction to the executive officer of
the board or his or her duly authorized representative during
business hours. Original notices of work completed or not completed
or copies thereof shall be submitted to the board upon request within
two business days.
SEC. 10.3. Section 8519.5 of the Business and Professions Code is
amended to read:
8519.5. (a) After an inspection report has been prepared by a
Branch 3 registered company pursuant to Section 8516, which discloses
a wood destroying pest that can be eradicated by fumigation, and the
fumigation has been duly performed by a Branch 1 registered company,
the Branch 1 registered company, on a company document that
identifies the licensee performing the fumigation and the name and
address of the registered company, shall issue the following
certification: "This is to certify that the property located at ____
(address) was fumigated on ____ (date) for the extermination of ____
(target pest)." This certification shall be issued to the person
ordering the fumigation and to the registered company that prepared
the inspection report within five working days after completing the
fumigation.
(1) Where a consumer has authorized a Branch 3 registered company
to subcontract the fumigation to a Branch 1 registered company, a
copy of the certification shall accompany any reinspection report,
notice of work completed pursuant to Section 8518, or any
certification issued by the Branch 3 company.
(2) Where the consumer has elected to contract directly with a
Branch 1 registered company to perform a fumigation, the distribution
of any documents pertinent to the fumigation shall be the
responsibility of the Branch 1 registered company.
(b) In the event of a failed fumigation performed by a Branch 1
registered company that has contracted directly with the consumer,
the Branch 1 registered company shall do all of the following:
(1) Verify the need for a refumigation.
(2) Maintain with the original inspection report, on a company
document, all of the following:
(A) The name of the current owner of the structure fumigated, the
address of the structure, and the date of the failed fumigation.
(B) An explanation of the need for refumigation.
(C) The proposed date for the refumigation.
(3) Within five working days after the completion of the
refumigation, the Branch 1 registered company, on a company document,
shall file with the current owner, and the Branch 3 registered
company whose report was used for the original fumigation,
information regarding the completion of the refumigation, a new
certification, and any warranty or guarantee.
SEC. 10.4. Section 8556 of the Business and Professions Code is
amended to read:
8556. (a) Licensed contractors acting in their capacity as such,
may remove and replace any structure or portions of a structure
damaged by wood destroying pests or organisms if that work is
incidental to other work being performed on the structure involved or
if that work has been identified by a structural pest control
inspection report. Licensed contractors acting in their capacity as
such may apply wood preservatives directly to end cuts and drill
holes of pressure treated wood, and to foundation wood as required by
building codes, as well as to fencing and decking, by brush, dip, or
spray method and need not obtain a license under this chapter for
performance of that work, provided a disclosure in the following form
is submitted to the customer in writing: "The application of a wood
preservative is intended to prevent the establishment and
flourishing of organisms which can deteriorate wood. If you suspect
pest infestation or infection, contact a registered structural pest
control company prior to the application of a wood preservative."
These exemptions do not authorize the performance of any other
acts defined in Section 8505.
(b) A licensed contractor may contract for the performance of any
soil treatment pest control work to eliminate, exterminate, control,
or prevent infestations or infections of pests or organisms in the
ground beneath or adjacent to any existing building or structure or
in or upon any site upon which any building or structure is to be
constructed, but the actual performance of any such work must be done
by a registered structural pest control company.
SEC. 10.5. Section 8614 of the Business and Professions Code is
repealed.
SEC. 10.6. Section 8615 of the Business and Professions Code is
repealed.
SEC. 10.7. Section 8617 of the Business and Professions Code is
amended to read:
8617. (a) The board or county agricultural commissioners, when
acting pursuant to Section 8616.4, may suspend the right of a
structural pest control licensee or registered company to work in a
county for up to three working days or, for a licensee, registered
company, or an unlicensed individual acting as a licensee, may levy
an administrative fine up to one thousand dollars ($1,000) for each
violation of this chapter, or any regulations adopted pursuant to
this chapter, or Chapter 2 (commencing with Section 12751), Chapter 3
(commencing with Section 14001), Chapter 3.5 (commencing with
Section 14101), or Chapter 7 (commencing with Section 15201) of
Division 7 of the Food and Agricultural Code, or any regulations
adopted pursuant to those chapters, relating to economic poisons.
Fines collected shall be paid to the Education and Enforcement
Account in the Structural Pest Control Education and Enforcement
Fund. Suspension may include all or part of the registered company's
business within the county based on the nature of the violation, but
shall, whenever possible, be restricted to that portion of a
registered company's business in a county that was in violation.
(b) Before a suspension action is taken or a fine levied, the
person charged with the violation shall be provided a written notice
of the proposed action, including the nature of the violation and the
amount of the proposed fine or suspension. The notice of proposed
action shall inform the person charged with the violation that if he
or she desires a hearing before the commissioner issuing the proposed
action to contest the finding of a violation, that hearing shall be
requested by written notice to the commissioner within 20 days of the
date of issuance of the written notice of proposed action.
A notice of the proposed action that is sent by certified mail to
the last known address of the person charged shall be considered
received even if delivery is refused or the notice is not accepted at
that address.
If a hearing is requested, notice of the time and place of the
hearing shall be given at least 10 days before the date set for the
hearing. At the hearing, the person shall be given an opportunity to
review the commissioner's evidence and a right to present evidence
on his or her own behalf. If a hearing is not requested within the
prescribed time, the commissioner may take the action proposed
without a hearing.
(c) If the person upon whom the commissioner imposed a fine or
suspension requested and appeared at a hearing before the
commissioner, the person may appeal the commissioner's decision to
the Disciplinary Review Committee and shall be subject to the
procedures in Section 8662.
(d) If a suspension or fine is ordered, it may not take effect
until 20 days after the date of the commissioner's decision if no
appeal is filed. If an appeal pursuant to Section 8662 is filed, the
commissioner's order shall be stayed until 20 days after the
Disciplinary Review Committee has ruled on the appeal.
(e) Failure of a licensee or registered company to pay a fine
within 30 days of the date of assessment or to comply with the order
of suspension, unless the citation is being appealed, may result in
disciplinary action being taken by the board.
Where a citation containing a fine is issued to a licensee and it
is not contested or the time to appeal the citation has expired and
the fine is not paid, the full amount of the assessed fine shall be
added to the fee for renewal of that license. A license shall not be
renewed without payment of the renewal fee and fine.
Where a citation containing a fine is issued to a registered
company and it is not contested or the time to appeal the citation
has expired and the fine is not paid, the board shall not sell to the
registered company any inspection stamps, notice of completion
stamps, or pesticide use stamps until the assessed fine has been
paid.
(f) Once final action pursuant to this section is taken, no other
administrative or civil action may be taken by any state governmental
agency for the same violation. However, action taken pursuant to
this section may be used by the board as evidence of prior
discipline, and multiple local actions may be the basis for statewide
disciplinary action by the board pursuant to Section 8620. A
certified copy of the order of suspension or fine issued pursuant to
this section or Section 8662 shall constitute conclusive evidence of
the occurrence of the violation.
(g) Where the board is the party issuing the notice of proposed
action to suspend or impose a fine pursuant to subdivision (a)
of this section, "commissioner"
as used in subdivisions (b), (c), and (d) includes the board's
registrar.
SEC. 10.8. Section 8652 of the Business and Professions Code is
amended to read:
8652. Failure of a registered company to make and keep all
inspection reports, field notes, contracts, documents, notices of
work completed, and records, other than financial records, for a
period of not less than three years after completion of any work or
operation for the control of structural pests or organisms, is a
ground for disciplinary action. These records shall be made
available to the executive officer of the board or his or her duly
authorized representative during business hours.
SEC. 10.85. Section 8656 of the Business and Professions Code is
amended to read:
8656. In addition to the remedies provided for in Section 125.9,
when the licensee who is a registered company has failed to pay the
fine assessed pursuant to a citation within 30 days of the date of
assessment, unless the citation is being appealed, the board shall
not sell to the registered company any pesticide use stamps until the
assessed fine has been paid.
SEC. 10.9. Section 8662 of the Business and Professions Code is
amended to read:
8662. (a) Whenever the right of a structural pest control
licensee or registered company to make pesticide applications is to
be suspended or the licensee, registered company, or unlicensed
individual is to be fined pursuant to Section 8617, and if the person
upon whom the commissioner imposed a fine or suspension requested
and appeared at a hearing before the commissioner in accordance with
Section 8617, the party to be suspended or fined may appeal to the
Disciplinary Review Committee by filing a written appeal with the
committee within 10 days of receipt of the fine or suspension order.
(b) The following procedures shall apply to the appeal:
(1) The appeal shall be in writing and signed by the appellant or
his or her or its authorized agent, state the grounds for the appeal,
and include a copy of the commissioner's decision. The appellant
shall file a copy of the appeal with the commissioner at the same
time it is filed with the committee.
(2) Any party may, at the time of filing the appeal or within 10
days thereafter, or at a later time prescribed by the committee or
its designee, present the record of the hearing, including written
evidence that was submitted at the hearing and written argument to
the committee stating the grounds for affirming, modifying, or
reversing the commissioner's decision.
(3) The committee or its designee may grant oral argument upon
application made at the time written arguments are filed. If an
application to present an oral argument is granted, written notice of
the time and place for the oral argument shall be given each party
at least 10 days before the date set therefor. The times may be
altered by mutual agreement of the appellant, the commissioner, and
the committee.
(4) At any time written evidence is submitted to the committee, a
copy shall be immediately provided to the other party.
(5) The committee shall decide the appeal on the record of the
hearing, including the written evidence and the written argument
described in paragraph (2) that the committee may have received. If
the committee finds substantial evidence in the record to support the
commissioner's decision, the committee shall affirm the decision.
(6) The committee shall render its written decision within 45 days
of the date of appeal or within 15 days from the date of oral
arguments. If the committee does not reach a decision in the time
required in this subdivision, the order issued pursuant to Section
8617 shall be null and void.
(7) On an appeal pursuant to this section, the committee may
sustain, modify by reducing the time of suspension or the amount of
the fine levied, or reverse the decision. A copy of the committee's
decision shall be delivered or mailed to each party.
(8) Review of the decision of the committee may be sought by the
licensee, registered company, or unlicensed individual pursuant to
Section 1094.5 of the Code of Civil Procedure.
SEC. 10.10. Section 8674 of the Business and Professions Code is
amended to read:
8674. The fees prescribed by this chapter are the following:
(a) A duplicate license fee of not more than two dollars ($2).
(b) A fee for filing a change of name of a licensee of not more
than two dollars ($2).
(c) An operator's examination fee of not more than twenty-five
dollars ($25).
(d) An operator's license fee of not more than one hundred fifty
dollars ($150).
(e) An operator's license renewal fee of not more than one hundred
fifty dollars ($150).
(f) A company registration fee of not more than one hundred twenty
dollars ($120).
(g) A branch office registration fee of not more than sixty
dollars ($60).
(h) A field representative's examination fee of not more than
fifteen dollars ($15).
(i) A field representative's license fee of not more than
forty-five dollars ($45).
(j) A field representative's license renewal fee of not more than
forty-five dollars ($45).
(k) An applicator's examination fee of not more than fifteen
dollars ($15).
(l) An applicator's license fee of not more than fifty dollars
($50).
(m) An applicator's license renewal fee of not more than fifty
dollars ($50).
(n) An activity form fee, per property address, of not more than
three dollars ($3).
(o) A fee for certifying a copy of an activity form of not more
than three dollars ($3).
(p) A fee for filing a change of a registered company's name,
principal office address, or branch office address, qualifying
manager, or the names of a registered company's officers, or bond or
insurance of not more than twenty-five dollars ($25) for each change.
(q) A fee for approval of continuing education providers of not
more than fifty dollars ($50).
(r) A pesticide use report filing fee of not more than five
dollars ($5) for each pesticide use report or combination of use
reports representing a registered structural pest control company's
total county pesticide use for the month.
(s) A fee for approval of continuing education courses of not more
than twenty-five dollars ($25).
(t) (1) Any person who pays a fee pursuant to subdivision (s)
shall, in addition, pay a fee of two dollars ($2) for each pesticide
use stamp purchased from the board. Notwithstanding any other
provision of law, the fee established pursuant to this subdivision
shall be deposited with a bank or other depository approved by the
Department of Finance and designated by the Research Advisory Panel
or into the Structural Pest Control Research Fund which is hereby
created and continuously appropriated to be used only for structural
pest control research. If the Research Advisory Panel designates
that the fees be deposited in an account other than the Structural
Pest Control Research Fund, any moneys in the fund shall be
transferred to the designated account.
(2) Prior to the deposit of any funds, the depository shall enter
into an agreement with the Department of Consumer Affairs that
includes, but is not limited to, all of the following requirements:
(A) The depository shall serve as custodian for the safekeeping of
the funds.
(B) Funds deposited in the designated account shall be encumbered
solely for the exclusive purpose of implementing and continuing the
program for which they were collected.
(C) Funds deposited in the designated account shall be subject to
an audit at least once every two years by an auditor selected by the
Director of Consumer Affairs. A copy of the audit shall be provided
to the director within 30 days of completion of the audit.
(D) The Department of Consumer Affairs shall be reimbursed for all
expenses it incurs that are reasonably related to implementing and
continuing the program for which the funds were collected in
accordance with the agreement.
(E) A reserve in an amount sufficient to pay for costs arising
from unanticipated occurrences associated with administration of the
program shall be maintained in the designated account.
(3) A charge for administrative expenses of the board in an amount
not to exceed 5 percent of the amount collected and deposited in the
Structural Pest Control Research Fund may be assessed against the
fund. The charge shall be limited to expenses directly related to
the administration of the fund.
(4) The board shall, by regulation, establish a five-member
research advisory panel including, but not limited to,
representatives from each of the following: (1) the Structural Pest
Control Board, (2) the structural pest control industry, (3) the
Department of Pesticide Regulation, and (4) the University of
California. The panel shall solicit and review research proposals
for recommendation to the board. The board shall distribute funds to
qualified applicants, pursuant to the panel's recommendation, upon a
two-thirds vote.
SEC. 10.11. Section 8674.5 of the Business and Professions Code is
amended to read:
8674.5. (a) There is hereby created in the State Treasury a
special fund known as the Structural Pest Control Device Fund. Each
person who pays a license fee pursuant to this chapter, in addition,
shall pay a fee of twenty-five cents ($0.25) for each property
address reported. Funds derived from the additional twenty-five
cents ($0.25) shall be deposited in the Structural Pest Control
Device Fund.
(b) Five percent of the amount collected and deposited in the
Structural Pest Control Device Fund shall be available to the board
for administrative costs upon appropriation in the annual Budget Act.
The balance in the fund is hereby continuously appropriated to the
Department of Pesticide Regulation for costs incurred by that
department pursuant to Chapter 7.5 (commencing with Section 15300) of
Division 7 of the Food and Agricultural Code.
(c) 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. 10.12. Section 8698 of the Business and Professions Code is
amended to read:
8698. The Director of the Department of Pesticide Regulation
shall be designated by the board as its agent for the purposes of
carrying out Section 8698.1. The Los Angeles County Agricultural
Commissioner or the Orange County Agricultural Commissioner, or both,
may contract with the director to perform increased structural
fumigation, inspection, and enforcement activities. These activities
shall be funded by the moneys collected pursuant to this chapter.
SEC. 10.13. Section 8698.1 of the Business and Professions Code is
amended to read:
8698.1. (a) If the county has contracted pursuant to Section
8698, any person who performs a structural fumigation in Los Angeles
County or Orange County shall pay to the county agricultural
commissioner a fee of five dollars ($5) for each treatment conducted
at a specific building or structure.
(b) The fees shall be submitted by the 10th day of the month
following the month in which the treatment was performed. The fees
shall be accompanied by a copy of a monthly pesticide use report
showing the addresses, including the department number if applicable,
of all structural fumigations. The report shall be in a form
required by the director, identify the name and address of the person
or company performing the fumigation, and include any other
information requested by the director.
SEC. 10.14. Section 8698.5 of the Business and Professions Code is
amended to read:
8698.5. Any funds collected pursuant to this chapter shall be
paid to the county and used for the sole purposes of funding
enforcement and training activities directly related to the
structural fumigation project created pursuant to Section 8698.
SEC. 10.15. Section 8698.6 of the Business and Professions Code is
amended to read:
8698.6. This chapter shall remain in effect only until July 1,
2003, and as of that date is repealed, unless a later enacted
statute, which is chaptered before July 1, 2003, deletes or extends
that date.
SEC. 10.16. Section 8747.5 is added to the Business and
Professions Code, to read:
8747.5. (a) The board shall issue, upon application and payment
of the fee established by Section 8805, a retired license to a land
surveyor who has been licensed by the board for a minimum of five
years within California, and a minimum of 20 years within the United
States or territories of the United States, and who holds a license
that is not suspended, revoked, or otherwise disciplined, or subject
to pending discipline under this chapter.
(b) The holder of a retired license issued pursuant to this
section shall not engage in any activity for which an active land
surveyor's license is required. A land surveyor holding a retired
license shall be permitted to use the titles "retired professional
land surveyor" or "professional land surveyor, retired."
(c) The holder of a retired license shall not be required to renew
that license.
(d) In order for the holder of a retired license issued pursuant
to this section to restore his or her license to active status, he or
she shall pass the examination that is required for initial
licensure with the board.
SEC. 10.17. Section 8780 of the Business and Professions Code is
amended to read:
8780. By a majority vote, the board may suspend for a period not
to exceed two years, or revoke the license or certificate of any
licensed land surveyor or registered civil engineer, respectively,
licensed under this chapter or registered under the provisions of
Chapter 7 (commencing with Section 6700) of Division 3, whom it finds
to be guilty of:
(a) Any fraud, deceit, misrepresentation, negligence, or
incompetency in his or her practice of land surveying.
(b) Any fraud or deceit in obtaining his or her license.
(c) Any violation of any provision of this chapter or of any other
law relating to or involving the practice of land surveying.
(d) Any conviction of a crime substantially related to the
qualifications, functions and duties of a land surveyor. The record
of the conviction shall be conclusive evidence thereof.
(e) Aiding or abetting any person in the violation of any
provision of this chapter.
(f) A breach of contract in connection with the practice of land
surveying.
SEC. 10.18. Section 8792 of the Business and Professions Code is
amended to read:
8792. Every person is guilty of a misdemeanor:
(a) Who, unless he is exempt from licensing under this chapter,
practices, or offers to practice, land surveying in this state
without legal authorization.
(b) Who presents as his own, the license of another.
(c) Who attempts to file as his own any record of survey under the
license of another.
(d) Who gives false evidence of any kind to the board, or to any
member, in obtaining a license.
(e) Who impersonates or uses the seal of a professional land
surveyor.
(f) Who uses an expired or revoked license.
(g) Who violates any provision of this chapter.
SEC. 10.19. Section 8805 of the Business and Professions Code is
amended to read:
8805. The amount of the fees prescribed by this chapter shall be
fixed by the board in accordance with the following schedule:
(a) The fee for filing each application for licensure as a land
surveyor at not more than one hundred seventy-five dollars ($175),
and for each application for certification as a land
surveyor-in-training (LSIT) at not more than sixty dollars ($60).
(b) The temporary registration fee for a land surveyor at not more
than 25 percent of the application fee in effect on the date of
application.
(c) The renewal fee for a land surveyor at not more than the
application fee.
(d) The fee for a retired license at not more than 50 percent of
the professional land surveyor application fee in effect on the date
of application.
(e) The delinquency fee at not more than 50 percent of the renewal
fee in effect on the date of reinstatement.
(f) The board shall establish by regulation an appeal fee for
examination. The regulation shall include provisions for an
applicant to be reimbursed the appeal fee if the appeal results in
passage of examination. The fee shall be no more than the costs
incurred by the board.
(g) All other document fees are to be set by the board by rule.
SEC. 11. 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. To the
extent prescribed by the director, an automotive repair dealer shall
identify the owners, directors, officers, partners, members,
trustees, managers, and any other persons who directly or indirectly
control or conduct the business. 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. 12. Section 22250 of the Business and Professions Code is
amended to read:
22250. (a) A tax preparer shall maintain a bond issued by a
surety company admitted to do business in this state for each
individual preparing tax returns for another person. The principal
sum of the bond shall be five thousand dollars ($5,000). A tax
preparer subject to this section shall provide to the surety company
proof that the individual is at least 18 years of age before a surety
bond may be issued.
(b) The bond required by this section shall be in favor of, and
payable to, the people of the State of California and shall be for
the benefit of any person or persons damaged by any fraud,
dishonesty, misstatement, misrepresentation, deceit, or any unlawful
acts or omissions by the tax preparer, or the tax preparers employed
or associated with it to provide tax preparation services.
(c) The tax preparer filing the bond shall identify all tax
preparers employed or associated with the tax preparer and shall
provide for each employee or associate the evidence required by
subdivision (a) to the surety company. A tax preparer employed or
associated with a tax preparer shall be covered by the bond of the
tax preparer with which he or she is employed or associated.
However, in no event shall the total bond required for any single tax
preparer and the tax preparers employed or associated with it be
required to exceed one hundred twenty-five thousand dollars
($125,000). The aggregate liability of the surety to any and all
persons regardless of the number of claims against the bond or the
number of years the bond remains in force shall not exceed five
thousand dollars ($5,000) for any one tax preparer. Any revision of
the bond amount shall not be cumulative. The liability of the surety
on the bond shall not include payment of any civil penalties, fines,
attorneys' fees, or any other cost provided by statute or
regulation.
(d) The tax preparer shall file an amendment to the bond within 30
days of a change in information contained in the bond, including a
change in the tax preparers employed or associated with the tax
preparer.
(e) (1) A tax preparer may not conduct business without having a
current surety bond in the amount prescribed by this section.
(2) Thirty days prior to the cancellation or termination of any
surety bond required by this section, the surety shall send a written
notice of that cancellation or termination to the tax preparer and
the California Tax Education Council, identifying the bond and the
date of cancellation or termination.
(3) If a tax preparer fails to obtain a new bond by the effective
date of the cancellation or termination of the former bond, the tax
preparer shall cease to conduct business until that time as a new
surety bond is obtained.
(f) Notwithstanding Section 995.710 of the Code of Civil
Procedure, a tax preparer may not make a deposit in lieu of bond.
(g) A tax preparer shall furnish evidence of the bond required by
this section upon the request of any state, federal agency or any law
enforcement agency or the California Tax Education Council.
SEC. 13. Section 22251 of the Business and Professions Code is
amended to read:
22251. For the purposes of this chapter, the following words have
the following meanings:
(a) (1) Except as otherwise provided in paragraph (2), "tax
preparer" includes:
(A) A person who, for a fee, assists with or prepares tax returns
for another person or who assumes final responsibility for completed
work on a return on which preliminary work has been done by another
person, or who holds himself or herself out as offering those
services. A person engaged in that activity shall be deemed to be a
separate person for the purposes of this chapter, irrespective of
affiliation with, or employment by, another tax preparer.
(B) A corporation, partnership, association, or other entity that
has associated with it persons not exempted under Section 22258,
which persons shall have as part of their responsibilities the
preparation of data and ultimate signatory authority on tax returns
or that holds itself out as offering those services or having that
authority.
(2) Notwithstanding paragraph (1), "tax preparer" does not include
an employee who, as part of the regular clerical duties of his or
her employment, prepares his or her employer's income, sales, or
payroll tax returns.
(b) "Tax return" means a return, declaration, statement, refund
claim, or other document required to be made or filed in connection
with state or federal income taxes or state bank and corporation
franchise taxes.
(c) An "approved curriculum provider," for purposes of basic
instruction as described in subdivision (a) of Section 22255, and
continuing education as described in subdivision (b) of Section
22255, is one who has been approved by the council as defined in
subdivision (d), or by the Bureau for Private Postsecondary and
Vocational Education under Chapter 7 (commencing with Section 94700)
of Part 59 of Division 10 of the Education Code. A curriculum
provider who is approved by the tax education council is exempt from
Chapter 7 (commencing with Section 94700) of Part 59 of Division 10
of the Education Code.
(d) "Council" means the California Tax Education Council which is
a single organization made up of not more than one representative
from each professional society, association, or other entity
operating as a California nonprofit corporation which chooses to
participate in the council and which represents tax preparers,
enrolled agents, attorneys, or certified public accountants with a
membership of at least 200 for the last three years, and not more
than one representative from each for-profit tax preparation
corporation which chooses to participate in the council and which has
at least 200 employees and has been operating in California for the
last three years.
SEC. 14. Section 22253 of the Business and Professions Code is
amended to read:
22253. It is a violation of this chapter for a tax preparer to do
any of the following:
(a) Make, or authorize the making of, any statement or
representation, oral or written or recorded by any means, which is
intended to induce persons to use the tax preparation service of the
tax preparer, which statement or representation is fraudulent,
untrue, or misleading.
(b) Obtain the signature of a customer to a tax return or
authorizing document which contains blank spaces to be filled in
after it has been signed.
(c) Fail or refuse to give a customer, for his or her own records,
a copy of any document requiring the customer's signature, within a
reasonable time after the customer signs such document.
(d) Fail to maintain a copy of any tax return prepared for a
customer for four years from the date of completion or the due date
of the return, whichever is later.
(e) Engage in advertising practices which are fraudulent, untrue,
or misleading, including, but not limited to, assertions that the
bond required by Section 22250 in any way implies licensure or
endorsement of a tax preparer by the State of California.
(f) Violate Section 17530.5.
(g) Violate Section 7216 of Title 26 of the United States Code.
(h) Fail to sign a customer's tax return when payment for services
rendered has been made.
(i) Fail to return, upon the demand by or on behalf of a customer,
records or other data provided to the tax preparer by the customer.
(j) Knowingly give false or misleading information to the consumer
pursuant to Section 22252, or give false or misleading information
to the surety company pursuant to subdivision (a) of Section 22250,
or give false or misleading information to the California Tax
Education Council pursuant to Section 22255.
SEC. 15. Section 22254 of the Business and Professions Code is
amended to read:
22254. A provider of tax preparer education for tax preparers
shall meet standards and procedures as approved by the council, or by
the Bureau for Private Postsecondary and Vocational Education. The
council shall either approve or decline to approve providers of tax
preparer education within 120 days of receiving a request for
approval. If approval is not declined within 120 days, the provider
shall be deemed approved. A listing of those providers approved by
the council shall be made available to tax preparers upon request.
SEC. 16. Section 22255 of the Business and Professions Code is
amended to read:
22255. (a) The council shall issue a
"certificate of completion" to the tax preparer when the tax preparer
demonstrates that he or she has (1) completed not less than 60 hours
of instruction in basic personal income tax law, theory, and
practice by an approved curriculum provider within the previous 18
months; and (2) provides evidence of compliance with the bonding
requirement of Section 22250, including the name of the surety
company, the bond number, and the bond expiration date.
(b) A tax preparer shall complete on an annual basis not less than
20 hours of continuing education, including 12 hours in federal
taxation, four hours in California taxation and an additional four
hours in either federal or California taxation from an approved
curriculum provider. The council shall issue annually a "statement
of compliance" when the tax preparer demonstrates that he or she has
(1) completed the required 20 hours of continuing education, and (2)
provides evidence of compliance with the bonding requirement of
Section 22250, including the name of the surety company, the bond
number, and the bond expiration date.
(c) An individual who possesses a minimum of two recent years
experience in the preparation of personal income tax returns may
petition the council to review the experience and determine if it is
the equivalent of the required qualifying education. The council may
provide that individual with a "certificate of completion" if it is
determined that the experience is the equivalent of the required
hours. Tax preparation performed in situations that violate this
chapter, by an individual who is neither registered nor exempted, may
not be used toward the qualifying experience needed for registration
as a tax preparer.
SEC. 17. Section 803 of the Penal Code is amended to read:
803. (a) Except as provided in this section, a limitation of time
prescribed in this chapter is not tolled or extended for any reason.
(b) No time during which prosecution of the same person for the
same conduct is pending in a court of this state is a part of a
limitation of time prescribed in this chapter.
(c) A limitation of time prescribed in this chapter does not
commence to run until the discovery of an offense described in this
subdivision. This subdivision applies to an offense punishable by
imprisonment in the state prison, a material element of which is
fraud or breach of a fiduciary obligation, the commission of the
crimes of theft or embezzlement upon an elder or dependent adult, or
the basis of which is misconduct in office by a public officer,
employee, or appointee, including, but not limited to, the following
offenses:
(1) Grand theft of any type, forgery, falsification of public
records, or acceptance of a bribe by a public official or a public
employee.
(2) A violation of Section 72, 118, 118a, 132, or 134.
(3) A violation of Section 25540, of any type, or Section 25541 of
the Corporations Code.
(4) A violation of Section 1090 or 27443 of the Government Code.
(5) Felony welfare fraud or Medi-Cal fraud in violation of Section
11483 or 14107 of the Welfare and Institutions Code.
(6) Felony insurance fraud in violation of Section 548 or 550 of
this code or former Section 1871.1, or Section 1871.4, of the
Insurance Code.
(7) A violation of Section 580, 581, 582, 583, or 584 of the
Business and Professions Code.
(8) A violation of Section 22430 of the Business and Professions
Code.
(9) A violation of Section 10690 of the Health and Safety Code.
(10) A violation of Section 529a.
(11) A violation of subdivision (d) or (e) of Section 368.
(d) If the defendant is out of the state when or after the offense
is committed, the prosecution may be commenced as provided in
Section 804 within the limitations of time prescribed by this
chapter, and no time up to a maximum of three years during which the
defendant is not within the state shall be a part of those
limitations.
(e) A limitation of time prescribed in this chapter does not
commence to run until the offense has been discovered, or could have
reasonably been discovered, with regard to offenses under Division 7
(commencing with Section 13000) of the Water Code, under Chapter 6.5
(commencing with Section 25100) of, Chapter 6.7 (commencing with
Section 25280) of, or Chapter 6.8 (commencing with Section 25300) of,
Division 20 of, or Part 4 (commencing with Section 41500) of
Division 26 of, the Health and Safety Code, or under Section 386, or
offenses under Chapter 5 (commencing with Section 2000) of Division 2
of, Chapter 9 (commencing with Section 4000) of Division 2 of,
Chapter 10 (commencing with Section 7301) of Division 3 of, or
Chapter 19.5 (commencing with Section 22440) of Division 8 of, the
Business and Professions Code.
(f) (1) Notwithstanding any other limitation of time described in
this chapter, a criminal complaint may be filed within one year of
the date of a report to a responsible adult or agency by a child
under 18 years of age that the child is a victim of a crime described
in Section 261, 286, 288, 288a, 288.5, 289, or 289.5.
(2) For purposes of this subdivision, a "responsible adult" or
"agency" means a person or agency required to report pursuant to
Section 11166. This subdivision applies only if both of the
following occur:
(A) The limitation period specified in Section 800 or 801 has
expired.
(B) The defendant has committed at least one violation of Section
261, 286, 288, 288a, 288.5, 289, or 289.5 against the same victim
within the limitation period specified for that crime in either
Section 800 or 801.
(3) (A) This subdivision applies to a cause of action arising
before, on, or after January 1, 1990, the effective date of this
subdivision, and it shall revive any cause of action barred by
Section 800 or 801 if any of the following occurred or occurs:
(i) The complaint or indictment was filed on or before January 1,
1997, and it was filed within the time period specified in this
subdivision.
(ii) The complaint or indictment is or was filed subsequent to
January 1, 1997, and it is or was filed within the time period
specified within this subdivision.
(iii) The victim made the report required by this subdivision to a
responsible adult or agency after January 1, 1990, and a complaint
or indictment was not filed within the time period specified in this
subdivision, but a complaint or indictment is filed no later than 180
days after the date on which either a published opinion of the
California Supreme Court, deciding whether retroactive application of
this section is constitutional, becomes final or the United States
Supreme Court files an opinion deciding the question of whether
retroactive application of this subdivision is constitutional,
whichever occurs first.
(iv) The victim made the report required by this subdivision to a
responsible adult or agency after January 1, 1990, and a complaint or
indictment was filed within the time period specified in this
subdivision, but the indictment, complaint, or subsequently filed
information was dismissed, but a new complaint or indictment is or
was filed no later than 180 days after the date on which either a
published opinion of the California Supreme Court, deciding whether
retroactive application of this section is constitutional, becomes
final or the United States Supreme Court files an opinion deciding
the question of whether retroactive application of this subdivision
is constitutional, whichever occurs first.
(B) (i) If the victim made the report required by this subdivision
to a responsible adult or agency after January 1, 1990, and a
complaint or indictment was filed within the time period specified in
this subdivision, but the indictment, complaint, or subsequently
filed information was dismissed, a new complaint or indictment may be
filed notwithstanding any other provision of law, including, but not
limited to, subdivision (c) of Section 871.5 and subdivision (b) of
Section 1238.
(ii) An order dismissing an action filed under this subdivision,
which is entered or becomes effective at any time prior to 180 days
after the date on which either a published opinion of the California
Supreme Court, deciding the question of whether retroactive
application of this section is constitutional, becomes final or the
United States Supreme Court files an opinion deciding the question of
whether retroactive application of this subdivision is
constitutional, whichever occurs first, shall not be considered an
order terminating an action within the meaning of Section 1387.
(iii) Any ruling regarding the retroactivity of this subdivision
or its constitutionality made in the course of the previous
proceeding, including any review proceeding, shall not be binding
upon refiling.
(g) (1) Notwithstanding any other limitation of time described in
this chapter, a criminal complaint may be filed within one year of
the date of a report to a California law enforcement agency by a
person of any age alleging that he or she, while under the age of 18
years, was the victim of a crime described in Section 261, 286, 288,
288a, 288.5, 289, or 289.5.
(2) This subdivision applies only if both of the following occur:
(A) The limitation period specified in Section 800 or 801 has
expired.
(B) The crime involved substantial sexual conduct, as described in
subdivision (b) of Section 1203.066, excluding masturbation that is
not mutual, and there is independent evidence that clearly and
convincingly corroborates the victim's allegation. No evidence may
be used to corroborate the victim's allegation that otherwise would
be inadmissible during trial. Independent evidence does not include
the opinions of mental health professionals.
(3) (A) This subdivision applies to a cause of action arising
before, on, or after January 1, 1994, the effective date of this
subdivision, and it shall revive any cause of action barred by
Section 800 or 801 if any of the following occurred or occurs:
(i) The complaint or indictment was filed on or before January 1,
1997, and it was filed within the time period specified in this
subdivision.
(ii) The complaint or indictment is or was filed subsequent to
January 1, 1997, and it is or was filed within the time period
specified within this subdivision.
(iii) The victim made the report required by this subdivision to a
law enforcement agency after January 1, 1994, and a complaint or
indictment was not filed within the time period specified in this
subdivision, but a complaint or indictment is filed no later than 180
days after the date on which either a published opinion of the
California Supreme Court, deciding the question of whether
retroactive application of this subdivision is constitutional,
becomes final or the United States Supreme Court files an opinion
deciding the question of whether retroactive application of this
subdivision is constitutional, whichever occurs first.
(iv) The victim made the report required by this subdivision to a
law enforcement agency after January 1, 1994, and a complaint or
indictment was filed within the time period specified in this
subdivision, but the indictment, complaint, or subsequently filed
information was dismissed, but a new complaint or indictment is filed
no later than 180 days after the date on which either a published
opinion of the California Supreme Court, deciding the question of
whether retroactive application of this subdivision is
constitutional, becomes final or the United States Supreme Court
files an opinion deciding the question of whether retroactive
application of this subdivision is constitutional, whichever occurs
first.
(B) (i) If the victim made the report required by this subdivision
to a law enforcement agency after January 1, 1994, and a complaint
or indictment was filed within the time period specified in this
subdivision, but the indictment, complaint, or subsequently filed
information was dismissed, a new complaint or indictment may be filed
notwithstanding any other provision of law, including, but not
limited to, subdivision (c) of Section 871.5 and subdivision (b) of
Section 1238.
(ii) An order dismissing an action filed under this subdivision,
which is entered or becomes effective at any time prior to 180 days
after the date on which either a published opinion of the California
Supreme Court, deciding the question of whether retroactive
application of this section is constitutional, becomes final or the
United States Supreme Court files an opinion deciding the question of
whether retroactive application of this subdivision is
constitutional, whichever occurs first, shall not be considered an
order terminating an action within the meaning of Section 1387.
(iii) Any ruling regarding the retroactivity of this subdivision
or its constitutionality made in the course of the previous
proceeding, by any trial court or any intermediate appellate court,
shall not be binding upon refiling.
SEC. 18. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.