BILL NUMBER: SB 1108 ENROLLED
BILL TEXT
PASSED THE ASSEMBLY JUNE 13, 2005
PASSED THE SENATE APRIL 28, 2005
INTRODUCED BY Committee on Judiciary (Senators Dunn (Chair),
Ackerman, Cedillo, Escutia, Figueroa, Kuehl, and Morrow)
MARCH 10, 2005
An act to amend Sections 1658, 6704.1, 8764, 8776.4, 19641.2,
24045.3, 24045.5, 24045.9, 24045.15, and 25658 of the Business and
Professions Code, to amend Sections 798.25, 799.1.5, 1365.2.5,
1747.08, 1798.81.5, 1798.83, and 1936 of the Civil Code, to amend
Sections 995.640, 1985.6, 2025.480, 2030.050, 2031.300, and 2033.220
of the Code of Civil Procedure, to amend Section 31109.1 of the
Corporations Code, to amend Sections 1240, 17212.2, 17592.70,
17592.72, 17592.73, 22115, 22200, 33126, 41020.5, 41326.1, 41328,
41530, 44830.3, 48853, 49341, 49414.5, 51226.1, 51430, 52059, 52124,
56366, 56366.1, 56366.11, 56505, 59052, 66739.5, 71093, 89539.2,
94742.3, 94931, and 99235 of, and to amend and renumber Section
17463.6 of, the Education Code, to amend Section 9042 of the
Elections Code, to amend Sections 299.3, 420, 2024.6, 3111, and 6341
of the Family Code, to amend Section 14252 of the Financial Code, to
amend Sections 1053, 1363.5, and 8494 of the Fish and Game Code, to
amend Sections 77253 and 77265 of the Food and Agricultural Code, to
amend Sections 3309.5, 6254, 7072, 7076.2, 7099, 7110, 7113.5,
8592.4, 8875.10, 12599, 12715, 17555, 20281.5, 20610, 21224, 22860,
27393, 30061, 31492.1, 31725.65, 31755, 31781.2, 31831.2, 31874.6,
51283.4, 53080, 53635, 54954.5, 56700, 65053.5, 65351, 65460.1,
66907.7, 68085, 68115, 68927, 69927, 70367, 71622, 82036, 84602, and
90004 of, and to add the heading of Chapter 5 (commencing with
Section 14557) to Part 5.3 of Division 3 of Title 2 of, the
Government Code, to amend Sections 1179.2, 1351.2, 1596.792, 11571.1,
18070, 25395.110, 25395.65, 25395.67, 25395.93, 25395.95, 25395.96,
25404, 25404.3, 44297, 100425, 101317, 101850, 113995, 118275,
120440, 125001 of, and to amend and renumber the heading of Article
45 (commencing with Section 123620) of Chapter 2 of Part 2 of
Division 106 of, the Health and Safety Code, to amend Section 1215.2
of the Insurance Code, to amend Sections 98.2, 98.6, 2699.5, 3099.3,
3600.1, and 4658.5 of the Labor Code, to amend Sections 179, 972.1,
and 985 of the Military and Veterans Code, to amend Sections 502.01,
679.05, 1203.4a, 11055, 12081, and 12553 of the Penal Code, to amend
Sections 6106.5, 6108, and 10411 of the Public Contract Code, to
amend Sections 5018.1, 14530.1, 14539, 14551, 21159.24, 30310, 40507,
42648.6 of, to amend and renumber Section 21061.5 of, and to amend
and renumber the heading of Chapter 4 (commencing with Section 71069)
of Part 2 of Division 34 of, the Public Resources Code, to amend
Sections 353.2, 379.6, 394.25, 2827.10, 2828, 21661.5, 90300,
130054.1, 130630, and 170042 of the Public Utilities Code, to amend
Sections 69.4, 214, 217, 2508, 3811, 7105, 17041, 17052.6, 18648,
18706, 19164, and 20583 of the Revenue and Taxation Code, to amend
Sections 527, 36705, 36733, and 36737 of the Streets and Highways
Code, to amend Section 1052 of the Unemployment Insurance Code, to
amend Sections 4000.1, 4466, 5205.5, 9400.1, 12509, 13352, 15250,
15275, 23575, 23593, and 27362 of the Vehicle Code, to amend Sections
521, 525, 527, 1013, 12997, 13305, 13387, and 35539.13 of the Water
Code, to amend Sections 294, 366.21, 387, 636, 740, 827, 4637.5,
4688.5, 7200.06, 11404, 11462, 14016.5, 14016.51, 14087.6, 14123.25,
and 16206 of the Welfare and Institutions Code, to amend Section 15
of Chapter 656 of the Statutes of 2003, and to amend Sections 4 and 5
of the Lake County Flood Control and Water Conservation District Act
(Chapter 1544 of the Statutes of 1951), relating to the maintenance
of the codes.
LEGISLATIVE COUNSEL'S DIGEST
SB 1108, Committee on Judiciary. Maintenance of the codes.
Existing law directs the Legislative Counsel to advise the
Legislature from time to time as to legislation necessary to maintain
the codes.
This bill would make technical, nonsubstantive changes in various
provisions of law to effectuate the recommendations made by the
Legislative Counsel to the Legislature.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1658 of the Business and Professions Code is
amended to read:
1658.
(a) When a licensee desires to have more than one place of
practice, he or she shall, prior to the opening of the additional
office, apply to the board, pay the fee required by this chapter, and
receive permission in writing from the board to have the additional
place of practice.
"Place of practice" means any dental office where any act of
dentistry is practiced as defined by Section 1625, and includes a
place of practice in which the applicant holds any proprietary
interest of any nature whatsoever, or in which he or she holds any
right to participate in the management or control thereof. A dentist
who is the lessor of a dental office shall not be deemed to hold a
proprietary interest in that place of practice, unless he or she is
entitled to participate in the management or control of the dentistry
practiced there.
(b) This section shall not apply to a licensee who practices
dentistry outside his or her registered place of practice in any of
the following places:
(1) Facilities licensed by the State Department of Health
Services.
(2) Licensed health facilities as defined in Section 1250 of the
Health and Safety Code.
(3) Clinics that are licensed under subdivision (a) of Section
1204 of, or that are exempt from licensure under subdivision (b),
(c), or (h) of Section 1206 of, the Health and Safety Code.
(4) Licensed community care facilities as defined in Section 1502
of the Health and Safety Code.
(5) Schools of any grade level, whether public or private.
(6) Public institutions, including, but not limited to, federal,
state, and local penal and correctional facilities.
(7) Mobile units that are operated by a public or governmental
agency or a nonprofit or charitable organization and are approved by
the board, provided that the mobile units meet all statutory or
regulatory requirements.
(8) The home of a nonambulatory patient when a physician or
registered nurse has provided a written note that the patient is
unable to visit a dental office.
SEC. 2. Section 6704.1 of the Business and Professions Code is
amended to read:
6704.1.
(a) The Department of Consumer Affairs, in conjunction with the
board, and the Joint Committee on Boards, Commissions, and Consumer
Protection shall review the engineering branch titles specified in
Section 6732 to determine whether certain title acts should be
eliminated from this chapter, retained, or converted to practice acts
similar to civil, electrical, and mechanical engineering, and
whether supplemental engineering work should be permitted for all
branches of engineering. The department shall contract with an
independent consulting firm to perform this comprehensive analysis of
title act registration.
(b) The independent consultant shall perform, but not be limited
to, the following: (1) meet with representatives of each of the
engineering branches and other professional groups; (2) examine the
type of services and work provided by engineers in all branches of
engineering and interrelated professions within the marketplace, to
determine the interrelationship that exists between the various
branches of engineers and other interrelated professions; (3) review
and analyze educational requirements of engineers; (4) identify the
degree to which supplemental or "overlapping" work between
engineering branches and interrelated professions occurs; (5) review
alternative methods of regulation of engineers in other states and
what impact the regulations would have if adopted in California; (6)
identify the manner in which local and state agencies utilize
regulations and statutes to regulate engineering work; and (7)
recommend changes to existing laws regulating engineers after
considering how these changes may affect the health, safety, and
welfare of the public.
(c) The board shall reimburse the department for costs associated
with this comprehensive analysis. The department shall report its
findings and recommendations to the Legislature by September 1, 2002.
SEC. 3. Section 8764 of the Business and Professions Code is
amended to read:
8764.
The record of survey shall show the applicable provisions of the
following consistent with the purpose of the survey:
(a) All monuments found, set, reset, replaced, or removed,
describing their kind, size, and location, and giving other data
relating thereto.
(b) Bearing or witness monuments, basis of bearings, bearing and
length of lines, scale of map, and north arrow.
(c) Name and legal designation of the property in which the survey
is located, and the date or time period of the survey.
(d) The relationship to those portions of adjacent tracts,
streets, or senior conveyances which have common lines with the
survey.
(e) Memorandum of oaths.
(f) Statements required by Section 8764.5.
(g) Any other data necessary for the intelligent interpretation of
the various items and locations of the points, lines, and areas
shown, or convenient for the identification of the survey or
surveyor, as may be determined by the civil engineer or land surveyor
preparing the record of survey.
The record of survey shall also show, either graphically or by
note, the reason or reasons, if any, why the mandatory filing
provisions of paragraphs (1) to (5), inclusive, of subdivision (b) of
Section 8762 apply.
The record of survey need not consist of a survey of an entire
property.
SEC. 4. Section 8776.4 of the Business and Professions Code is
amended to read:
8776.4.
Notwithstanding any other provision of law, a licensee shall not
be considered to have violated a confidential settlement agreement or
other confidential agreement by providing a report to the board as
required by this article.
SEC. 5. Section 19641.2 of the Business and Professions Code is
amended to read:
19641.2.
(a) The nonprofit foundation authorized to receive funds pursuant
to Section 19641 shall use those funds to administer a health and
welfare trust fund without prejudice and for the benefit of every
eligible person. The officers and directors of the health and welfare
trust fund shall have a fiduciary responsibility to manage the fund
for the benefit of the beneficiaries.
(b) Every employer of backstretch workers shall, upon request,
submit in writing or electronically to the administrator of the
welfare program for backstretch workers any employment records
necessary for prompt payment of benefits and proper administration of
the program. Upon request, employers shall also provide to the
administrator access to any employment records necessary for prompt
payment of benefits and proper administration of the program.
(c) At least one member of the health and welfare fund board shall
be a member without financial interest in the horse racing industry
appointed from a list of nominees submitted jointly by the California
State Council of the Service Employees International Union, the
Jockey's Guild, and the California Teamsters Public Affairs Council.
(d) Nothing in this section is intended to affect the status of
the welfare fund as a charity under Section 501(c)(3) of the federal
Internal Revenue Code or its compliance with the Charitable Purposes
Act (Article 7 (commencing with Section 12580) of Chapter 6 of Part 2
of Division 3 of Title 2 of the Government Code).
SEC. 6. Section 24045.3 of the Business and Professions Code is
amended to read:
24045.3.
(a) The department may issue a special temporary retail package
off-sale beer and wine license to a women's educational and
charitable organization that is a part of a national organization
having at least 10 chapters in California at least one of which has
been incorporated since 1928, whose purpose is to foster interest
among its members in the social, economic, and civic conditions of
their community and to give effective volunteer service. An applicant
for this license shall accompany the application with a fee of one
hundred dollars ($100).
(b) This license shall only entitle the licensee to sell at
auction for charitable purposes beer and wine donated to it. None of
the funds realized from this auction shall be used for the
administrative expenses of the auction and all funds shall be placed
in trust for a charitable purpose. Notwithstanding any other
provision of this division, a licensee may donate beer and wine to an
organization licensed under this section, provided that donations
are not made in connection with a sale of an alcoholic beverage.
(c) This license shall be for a period not exceeding one day. Only
one license shall be issued to any organization in a calendar year.
SEC. 7. Section 24045.5 of the Business and Professions Code is
amended to read:
24045.5.
The department in its discretion may issue a temporary permit to
the transferee of any license to continue the operation of the
premises during the period a transfer application for the license
from person to person at the same premises is pending and when all
the following conditions exist:
(a) The premises shall have been operated under a license within
30 days of the date of filing the application for a temporary permit.
(b) The license for the premises shall have been surrendered
pursuant to rules of the department.
(c) The applicant for the temporary permit shall have filed with
the department an application for transfer of the license at the
premises to himself or herself.
(d) The application for the temporary permit shall be accompanied
by a temporary permit fee of one hundred dollars ($100).
A temporary permit issued by the department pursuant to this
section shall be for a period not to exceed four calendar months. A
temporary permit may be extended at the discretion of the department
for an additional four calendar months upon payment of an additional
fee of one hundred dollars ($100) and upon compliance with all
conditions required herein. A temporary permit is a conditional
permit and authorizes the holder thereof to sell the alcoholic
beverages as would be permitted to be sold under the privileges of
the license for which the transfer application has been filed with
the department.
Purchase of beer, wine, and distilled spirits by the holder of a
temporary permit shall be made only upon payment before or at the
time of delivery in currency or by check. However, the holder of a
temporary retail permit who also holds one or more retail licenses
and is operating under the retail license or licenses in addition to
the temporary permit, and who is not delinquent under the provisions
of Section 25509 as to any retail license under which he or she
operates, may purchase alcoholic beverages on credit under the
temporary permit.
All checks received by a seller for alcoholic beverages purchased
by the holder of a temporary retail permit shall be deposited not
later than the second business day following the date the alcoholic
beverages are delivered.
A check dishonored on presentation shall not be deemed payment.
The receipt by the seller or his or her agent in good faith from a
holder of a temporary permit of a check dishonored on presentation
shall not be cause for disciplinary action against the seller.
Transfer of the license for which the holder of a temporary permit
has filed an application shall not be approved by the department
until the holder of the temporary permit has filed with the
department a statement executed under penalty of perjury that all
current obligations have been discharged, and that all outstanding
checks issued by him or her in payment for alcoholic beverages will
be honored on presentation.
It shall not be a violation of this section or otherwise grounds
for disciplinary action for any licensee to extend credit to the
holder of a temporary permit or to receive payment from the permittee
in a manner other than authorized herein unless the seller had
knowledge of the fact that the purchaser was operating under a
temporary permit. Knowledge of the fact may be established by
evidence, including, but not limited to, evidence that, at the time
of receipt of payment or the extension of credit, the premises
operated under a temporary permit were posted with the notice
required by Section 23985, or the holder of the temporary permit had
recorded notice as required by Section 24073, or the holder of the
temporary permit had published notice as required by Section 23986,
or the holder of the temporary permit had recorded and published
notice pursuant to Division 6 (commencing with Section 6101) of the
Commercial Code.
Refusal by the department to issue or extend a temporary permit
shall not entitle the applicant to petition for the permit pursuant
to Section 24011, or to a hearing pursuant to Section 24012. Articles
2 (commencing with Section 23985) and 3 (commencing with Section
24011) shall not apply to temporary permits.
Notwithstanding any other provision of law, a temporary permit may
be canceled or suspended summarily at anytime if the department
determines that good cause for the cancellation or suspension exists.
Chapter 8 (commencing with Section 24300) shall not apply to
temporary permits.
Application for a temporary permit shall be on any form the
department shall prescribe. If an application for a temporary permit
is withdrawn before issuance or is refused by the department, the fee
which accompanied the application shall be refunded in full, and
Section 23959 shall not apply. Fees received by the department for
issuance of temporary permits shall be deposited in the Alcohol
Beverage Control Fund as provided in Section 25761.
SEC. 8. Section 24045.9 of the Business and Professions Code is
amended to read:
24045.9.
(a) The department may issue a special temporary on-sale beer and
wine license to: (1) a television station, supported wholly or in
part by public membership subscription, which is a nonprofit,
charitable corporation exempt from payment of income taxes under the
provisions of the Internal Revenue Code of 1954 of the United States,
or (2) a nonprofit, charitable corporation exempt from payment of
income taxes under the provisions of the Internal Revenue Code of
1954 of the United States which receives and administers donations
for a noncommercial, educational television station or public
broadcasting station supported wholly or in part by public membership
subscription. An applicant for this license shall accompany the
application with a fee of one hundred dollars ($100).
(b) This license shall only entitle the licensee to sell and serve
beer and wine donated to it. Notwithstanding any other provision of
this division, a licensee may donate beer or wine to a corporation
licensed under this section, provided that the donations are not made
in connection with a sale of an alcoholic beverage.
(c) This license shall be for a period not exceeding 30 days. Only
one license shall be issued to any corporation in a calendar year.
(d) For purposes of this section, any licensee may also serve that
beer or wine donated by him or her at any event for which the
license has been issued.
(e) The department shall adopt rules as it determines necessary to
implement and administer this section.
SEC. 9. Section 24045.15 of the Business and Professions Code is
amended to read:
24045.15.
(a) Notwithstanding any other provision of this division, the
department may issue a special temporary on-sale or off-sale wine
license to any nonprofit corporation having an agricultural purpose
that is exempt from the payment of income taxes under Section 501(c)
(5) of the Internal Revenue Code of 1986. If the nonprofit
corporation's name, or any name under which the nonprofit corporation
does business, includes the designation of an American Viticultural
Area (AVA) recognized by the United States Bureau of Alcohol, Tobacco
and Firearms (BATF), as set forth in Part 9 (commencing with Section
9.1) of Title 27 of the Code of Federal Regulations (27 C.F.R. 9.1
et seq.), the membership of the nonprofit corporation shall include a
majority of the winegrowers located in the named AVA in order to
obtain a license under this section. No more than one nonprofit
corporation located in an AVA is entitled to obtain a license under
this section. The applicant shall accompany the application with a
fee of one hundred dollars ($100).
(b) This special license shall only entitle the licensee to sell
wine donated or sold to the nonprofit corporation by the member
winegrowers to consumers for the purpose of fundraising. The wine
shall bear the brand name of the producing winery. Off-sale
privileges shall be limited to direct mail, telephone, and online
computer services. No member winegrower shall donate or sell more
than 75 cases of wine per year to the nonprofit corporation and the
nonprofit corporation shall sell no more than 1,000 cases of wine per
year under the license. If the nonprofit corporation's name or any
name under which the nonprofit corporation does business includes the
designation of an American Viticultural Area (AVA) recognized by the
United States Bureau of Alcohol, Tobacco and Firearms (BATF), as set
forth in Part 9 (commencing with Section 9.1) of Title 27 of the
Code of Federal Regulations (27 C.F.R. 9.1 et seq.), the wines sold
by the nonprofit corporation must be entitled to use the named AVA as
the appellation of origin. In order to avoid confusion between the
corporation and any winery whose name also includes the designation
of the named AVA, any advertising or solicitation for the sale of
wine under this license by the corporation shall include a statement
disclosing that the corporation is a nonprofit agricultural
organization whose members include individual winegrowers or
grapegrowers and whose purpose is to promote its agricultural region
and improve its grapes and wines. This advertising or solicitation
shall also include a complete roster of the corporation's members and
a list of the brand names, varieties, and vintages of the wines
offered for sale. The wine shall not be sold at less than its minimum
retail price.
(c) This special license shall be for a period not exceeding 60
days. Only one special license authorized by this section shall be
issued to any nonprofit corporation in a calendar year.
SEC. 10. Section 25658 of the Business and Professions Code is
amended to read:
25658.
(a) Except as otherwise provided in subdivision (c), every person
who sells, furnishes, gives, or causes to be sold, furnished, or
given away, any alcoholic beverage to any person under the age of 21
years is guilty of a misdemeanor.
(b) Any person under the age of 21 years who purchases any
alcoholic beverage, or any person under the age of 21 years who
consumes any alcoholic beverage in any on-sale premises, is guilty of
a misdemeanor.
(c) Any person who violates subdivision (a) by purchasing any
alcoholic beverage for, or furnishing, giving, or giving away any
alcoholic beverage to, a person under the age of 21 years, and the
person under the age of 21 years thereafter consumes the alcohol and
thereby proximately causes great bodily injury or death to himself,
herself, or any other person, is guilty of a misdemeanor.
(d) Any on-sale licensee who knowingly permits a person under the
age of 21 years to consume any alcoholic beverage in the on-sale
premises, whether or not the licensee has knowledge that the person
is under the age of 21 years, is guilty of a misdemeanor.
(e) (1) Except as otherwise provided in paragraph (2) or (3), any
person who violates this section shall be punished by a fine of two
hundred fifty dollars ($250), no part of which shall be suspended, or
the person shall be required to perform not less than 24 hours or
more than 32 hours of community service during hours when the person
is not employed and is not attending school, or a combination of a
fine and community service as determined by the court. A second or
subsequent violation of subdivision (b) shall be punished by a fine
of not more than five hundred dollars ($500), or the person shall be
required to perform not less than 36 hours or more than 48 hours of
community service during hours when the person is not employed and is
not attending school, or a combination of a fine and community
service as determined by the court. It is the intent of the
Legislature that the community service requirements prescribed in
this section require service at an alcohol or drug treatment program
or facility or at a county coroner's office, if available, in the
area where the violation occurred or where the person resides.
(2) Except as provided in paragraph (3), any person who violates
subdivision (a) by furnishing an alcoholic beverage, or causing an
alcoholic beverage to be furnished, to a minor shall be punished by a
fine of one thousand dollars ($1,000), no part of which shall be
suspended, and the person shall be required to perform not less than
24 hours of community service during hours when the person is not
employed and is not attending school.
(3) Any person who violates subdivision (c) shall be punished by
imprisonment in a county jail for a minimum term of six months not to
exceed one year, by a fine not exceeding one thousand dollars
($1,000), or by both imprisonment and fine.
(f) Persons under the age of 21 years may be used by peace
officers in the enforcement of this section to apprehend licensees,
or employees or agents of licensees, who sell alcoholic beverages to
minors. Notwithstanding subdivision (b), any person under the age of
21 years who purchases or attempts to purchase any alcoholic beverage
while under the direction of a peace officer is immune from
prosecution for that purchase or attempt to purchase an alcoholic
beverage. Guidelines with respect to the use of persons under the age
of 21 years as decoys shall be adopted and published by the
department in accordance with the rulemaking portion of the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code).
Law enforcement-initiated minor decoy programs in operation prior to
the effective date of regulatory guidelines adopted by the department
shall be authorized as long as the minor decoy displays to the
seller of alcoholic beverages the appearance of a person under the
age of 21 years. This subdivision shall not be construed to prevent
the department from taking disciplinary action against a licensee who
sells alcoholic beverages to a minor decoy prior to the department's
final adoption of regulatory guidelines. After the completion of
every minor decoy program performed under this subdivision, the law
enforcement agency using the decoy shall notify licensees within 72
hours of the results of the program. When the use of a minor decoy
results in the issuance of a citation, the notification required
shall be given within 72 hours of the issuance of the citation. A law
enforcement agency may comply with this requirement by leaving a
written notice at the licensed premises addressed to the licensee, or
by mailing a notice addressed to the licensee.
(g) The penalties imposed by this section do not preclude
prosecution under any other provision of law, including, but not
limited to, Section 272 of the Penal Code.
SEC. 11. Section 798.25 of the Civil Code is amended to read:
798.25.
(a) Except as provided in subdivision (d), when the management
proposes an amendment to the park's rules and regulations, the
management shall meet and consult with the homeowners in the park,
their representatives, or both, after written notice has been given
to all the homeowners in the park 10 days or more before the meeting.
The notice shall set forth the proposed amendment to the park's
rules and regulations and shall state the date, time, and location of
the meeting.
(b) Except as provided in subdivision (d) following the meeting
and consultation with the homeowners, the noticed amendment to the
park's rules and regulations may be implemented, as to any homeowner,
with the consent of that homeowner, or without the homeowner's
consent upon written notice of not less than six months, except for
regulations applicable to recreational facilities, which may be
amended without homeowner consent upon written notice of not less
than 60 days.
(c) Written notice to a homeowner whose tenancy commences within
the required period of notice of a proposed amendment to the park's
rules and regulations under subdivision (b) or (d) shall constitute
compliance with this section where the written notice is given before
the inception of the tenancy.
(d) When the management proposes an amendment to the park's rules
and regulations mandated by a change in the law, including, but not
limited to, a change in a statute, ordinance, or governmental
regulation, the management may implement the amendment to the park's
rules and regulations, as to any homeowner, with the consent of that
homeowner or without the homeowner's consent upon written notice of
not less than 60 days. For purposes of this subdivision, the
management shall specify in the notice the citation to the statute,
ordinance, or regulation, including the section number, that
necessitates the proposed amendment to the park's rules and
regulations.
(e) Any amendment to the park's rules and regulations that creates
a new fee payable by the homeowner and that has not been expressly
agreed upon by the homeowner and management in the written rental
agreement or lease, shall be void and unenforceable.
SEC. 12. Section 799.1.5 of the Civil Code is amended to read:
799.1.5.
A homeowner or resident, or an heir, joint tenant, or personal
representative of the estate who gains ownership of a mobilehome
through the death of the resident of the mobilehome who was a
resident at the time of his or her death, or the agent of any of
those persons, may advertise the sale or exchange of his or her
mobilehome or, if not prohibited by the terms of an agreement with
the management or ownership, may advertise the rental of his or her
mobilehome by displaying a sign in the window of the mobilehome, or
by a sign posted on the side of the mobilehome facing the street, or
by a sign in front of the mobilehome facing the street, stating that
the mobilehome is for sale or exchange or, if not prohibited, for
rent by the owner of the mobilehome or his or her agent. Any such
person also may display a sign conforming to these requirements
indicating that the mobilehome is on display for an "open house,"
unless the park rules prohibit the display of an open house sign.
The sign shall state the
name, address, and telephone number of the owner of the mobilehome or
his or her agent. The sign face may not exceed 24 inches in width
and 36 inches in height. Signs posted in front of a mobilehome
pursuant to this section may be of an H-frame or A-frame design with
the sign face perpendicular to, but not extending into, the street. A
homeowner or resident, or an heir, joint tenant, or personal
representative of the estate who gains ownership of a mobilehome
through the death of the resident of the mobilehome who was a
resident at the time of his or her death, or the agent of any of
those persons, may attach to the sign or their mobilehome tubes or
holders for leaflets that provide information on the mobilehome for
sale, exchange, or rent.
SEC. 13. Section 1365.2.5 of the Civil Code is amended to read:
1365.2.5.
(a) The disclosures required by this article in regard to an
association or a property shall be summarized on the following form:
Assessment and Reserve Funding Disclosure Summary
(1) The current assessment per unit is $_____ per ____. Note: If
assessments vary by the size or type of unit, the assessment
applicable to this unit may be found on page _____ of the attached
report. (2) Additional assessments that have already been scheduled
to be imposed or charged, regardless of the purpose, if they have
been approved by the board and/or members:
+---------------+----------------+-----------------+
| | Amount per unit| |
| | per | |
| | | |
| | month (If | |
| | assessments are| |
| | | |
| | variable, see | |
| Date | note | |
| assessment is | | |
| | immediately | Purpose of the |
| due: | below): | assessment: |
+---------------+----------------+-----------------+
| | | |
+---------------+----------------+-----------------+
| | | |
+---------------+----------------+-----------------+
| | | |
+---------------+----------------+-----------------+
| |Total: | |
+---------------+----------------+-----------------+
Note: If assessments vary by the size or type of unit, the
assessment applicable to this unit may be found on page ____ of the
attached report. (3) Based upon the most recent reserve study and
other information available to the board of directors, will currently
projected reserve account balances be sufficient at the end of each
year to meet the association's obligation for repair and/or
replacement of major components during the next 30 years Yes _____
No _____ (4) If the answer to (3) is no, what additional
assessments or other contributions to reserves would be necessary to
ensure that sufficient reserve funds will be available each year
during the next 30 years
+--------------------+-----------+
| Approximate date | Amount per|
| assessment | unit |
| | |
| will be due: | per month:|
+--------------------+-----------+
| | |
+--------------------+-----------+
| | |
+--------------------+-----------+
| | |
+--------------------+-----------+
| | |
+--------------------+-----------+
| |Total: |
+--------------------+-----------+
(5) The following major components, which are included in the
reserve study, are NOT included in the existing reserve funding:
+-----------------+--------------+-----------------+
| | Useful | Reason this |
| | remaining | major component |
| | | |
| Major component:|life in years:|was not included:|
+-----------------+--------------+-----------------+
| | | |
+-----------------+--------------+-----------------+
| | | |
+-----------------+--------------+-----------------+
| | | |
+-----------------+--------------+-----------------+
| | | |
+-----------------+--------------+-----------------+
(6) As of the last reserve study or update, the current balance in
the reserve fund is $_______. Based on the method of calculation in
paragraph (4) of subdivision (b) of Section 1365.2.5, the required
amount in the reserve fund is $_______, and if an alternate, but
generally accepted, method of calculation is also used, the required
amount is $____. (See attached explanation) NOTE: The financial
representations set forth in this summary are based on the best
estimates of the preparer at that time. The estimates are subject to
change.
(b) For the purposes of preparing a summary pursuant to this
section:
(1) "Estimated remaining useful life" means the time reasonably
calculated to remain before a major component will require
replacement.
(2) "Major component" has the meaning used in Section 1365.5.
Components with an estimated remaining useful life of more than 30
years may be included in a study as a capital asset or disregarded
from the reserve calculation, so long as the decision is revealed in
the reserve study report and reported in the Assessment and Reserve
Funding Disclosure Summary.
(3) The form set out in subdivision (a) shall accompany each pro
forma operating budget or summary thereof that is delivered pursuant
to this article. The form may be supplemented or modified to clarify
the information delivered, so long as the minimum information set out
in subdivision (a) is provided.
(4) For the purpose of the report and summary, the amount of
reserves needed to be accumulated for a component at a given time
shall be computed as the current cost of replacement or repair
multiplied by the number of years the component has been in service
divided by the useful life of the component. This shall not be
construed to require the board to fund reserves in accordance with
this calculation.
SEC. 14. Section 1747.08 of the Civil Code is amended to read:
1747.08.
(a) Except as provided in subdivision (c), no person, firm,
partnership, association, or corporation that accepts credit cards
for the transaction of business shall do any of the following:
(1) Request, or require as a condition to accepting the credit
card as payment in full or in part for goods or services, the
cardholder to write any personal identification information upon the
credit card transaction form or otherwise.
(2) Request, or require as a condition to accepting the credit
card as payment in full or in part for goods or services, the
cardholder to provide personal identification information, which the
person, firm, partnership, association, or corporation accepting the
credit card writes, causes to be written, or otherwise records upon
the credit card transaction form or otherwise.
(3) Utilize, in any credit card transaction, a credit card form
which contains preprinted spaces specifically designated for filling
in any personal identification information of the cardholder.
(b) For purposes of this section "personal identification
information," means information concerning the cardholder, other than
information set forth on the credit card, and including, but not
limited to, the cardholder's address and telephone number.
(c) Subdivision (a) does not apply in the following instances:
(1) If the credit card is being used as a deposit to secure
payment in the event of default, loss, damage, or other similar
occurrence.
(2) Cash advance transactions.
(3) If the person, firm, partnership, association, or corporation
accepting the credit card is contractually obligated to provide
personal identification information in order to complete the credit
card transaction or is obligated to collect and record the personal
identification information by federal law or regulation.
(4) If personal identification information is required for a
special purpose incidental but related to the individual credit card
transaction, including, but not limited to, information relating to
shipping, delivery, servicing, or installation of the purchased
merchandise, or for special orders.
(d) This section does not prohibit any person, firm, partnership,
association, or corporation from requiring the cardholder, as a
condition to accepting the credit card as payment in full or in part
for goods or services, to provide reasonable forms of positive
identification, which may include a driver's license or a California
state identification card, or where one of these is not available,
another form of photo identification, provided that none of the
information contained thereon is written or recorded on the credit
card transaction form or otherwise. If the cardholder pays for the
transaction with a credit card number and does not make the credit
card available upon request to verify the number, the cardholder's
driver's license number or identification card number may be recorded
on the credit card transaction form or otherwise.
(e) Any person who violates this section shall be subject to a
civil penalty not to exceed two hundred fifty dollars ($250) for the
first violation and one thousand dollars ($1,000) for each subsequent
violation, to be assessed and collected in a civil action brought by
the person paying with a credit card, by the Attorney General, or by
the district attorney or city attorney of the county or city in
which the violation occurred. However, no civil penalty shall be
assessed for a violation of this section if the defendant shows by a
preponderance of the evidence that the violation was not intentional
and resulted from a bona fide error made notwithstanding the
defendant's maintenance of procedures reasonably adopted to avoid
that error. When collected, the civil penalty shall be payable, as
appropriate, to the person paying with a credit card who brought the
action, or to the general fund of whichever governmental entity
brought the action to assess the civil penalty.
(f) The Attorney General, or any district attorney or city
attorney within his or her respective jurisdiction, may bring an
action in the superior court in the name of the people of the State
of California to enjoin violation of subdivision (a) and, upon notice
to the defendant of not less than five days, to temporarily restrain
and enjoin the violation. If it appears to the satisfaction of the
court that the defendant has, in fact, violated subdivision (a), the
court may issue an injunction restraining further violations, without
requiring proof that any person has been damaged by the violation.
In these proceedings, if the court finds that the defendant has
violated subdivision (a), the court may direct the defendant to pay
any or all costs incurred by the Attorney General, district attorney,
or city attorney in seeking or obtaining injunctive relief pursuant
to this subdivision.
(g) Actions for collection of civil penalties under subdivision
(e) and for injunctive relief under subdivision (f) may be
consolidated.
(h) The changes made to this section by Chapter 458 of the
Statutes of 1995 apply only to credit card transactions entered into
on and after January 1, 1996. Nothing in those changes shall be
construed to affect any civil action which was filed before January
1, 1996.
SEC. 15. Section 1798.81.5 of the Civil Code is amended to read:
1798.81.5.
(a) It is the intent of the Legislature to ensure that personal
information about California residents is protected. To that end, the
purpose of this section is to encourage businesses that own or
license personal information about Californians to provide reasonable
security for that information. For the purpose of this section, the
phrase "owns or licenses" is intended to include, but is not limited
to, personal information that a business retains as part of the
business' internal customer account or for the purpose of using that
information in transactions with the person to whom the information
relates.
(b) A business that owns or licenses personal information about a
California resident shall implement and maintain reasonable security
procedures and practices appropriate to the nature of the
information, to protect the personal information from unauthorized
access, destruction, use, modification, or disclosure.
(c) A business that discloses personal information about a
California resident pursuant to a contract with a nonaffiliated third
party shall require by contract that the third party implement and
maintain reasonable security procedures and practices appropriate to
the nature of the information, to protect the personal information
from unauthorized access, destruction, use, modification, or
disclosure.
(d) For purposes of this section, the following terms have the
following meanings:
(1) "Personal information" means an individual's first name or
first initial and his or her last name in combination with any one or
more of the following data elements, when either the name or the
data elements are not encrypted or redacted:
(A) Social security number.
(B) Driver's license number or California identification card
number.
(C) Account number, credit or debit card number, in combination
with any required security code, access code, or password that would
permit access to an individual's financial account.
(D) Medical information.
(2) "Medical information" means any individually identifiable
information, in electronic or physical form, regarding the individual'
s medical history or medical treatment or diagnosis by a health care
professional.
(3) "Personal information" does not include publicly available
information that is lawfully made available to the general public
from federal, state, or local government records.
(e) The provisions of this section do not apply to any of the
following:
(1) A provider of health care, health care service plan, or
contractor regulated by the Confidentiality of Medical Information
Act (Part 2.6 (commencing with Section 56) of Division 1).
(2) A financial institution as defined in Section 4052 of the
Financial Code and subject to the California Financial Information
Privacy Act (Division 1.2 (commencing with Section 4050) of the
Financial Code.
(3) A covered entity governed by the medical privacy and security
rules issued by the federal Department of Health and Human Services,
Parts 160 and 164 of Title 45 of the Code of Federal Regulations,
established pursuant to the Health Insurance Portability and
Availability Act of 1996 (HIPAA).
(4) An entity that obtains information under an agreement pursuant
to Article 3 (commencing with Section 1800) of Chapter 1 of Division
2 of the Vehicle Code and is subject to the confidentiality
requirements of the Vehicle Code.
(5) A business that is regulated by state or federal law providing
greater protection to personal information than that provided by
this section in regard to the subjects addressed by this section.
Compliance with that state or federal law shall be deemed compliance
with this section with regard to those subjects. This paragraph does
not relieve a business from a duty to comply with any other
requirements of other state and federal law regarding the protection
and privacy of personal information.
SEC. 16. Section 1798.83 of the Civil Code is amended to read:
1798.83.
(a) Except as otherwise provided in subdivision (d), if a business
has an established business relationship with a customer and has
within the immediately preceding calendar year disclosed personal
information that corresponds to any of the categories of personal
information set forth in paragraph (6) of subdivision (e) to third
parties, and if the business knows or reasonably should know that the
third parties used the personal information for the third parties'
direct marketing purposes, that business shall, after the receipt of
a written or electronic mail request, or, if the business chooses to
receive requests by toll-free telephone or facsimile numbers, a
telephone or facsimile request from the customer, provide all of the
following information to the customer free of charge:
(1) In writing or by electronic mail, a list of the categories set
forth in paragraph (6) of subdivision (e) that correspond to the
personal information disclosed by the business to third parties for
the third parties' direct marketing purposes during the immediately
preceding calendar year.
(2) In writing or by electronic mail, the names and addresses of
all of the third parties that received personal information from the
business for the third parties' direct marketing purposes during the
preceding calendar year and, if the nature of the third parties'
business cannot reasonably be determined from the third parties'
name, examples of the products or services marketed, if known to the
business, sufficient to give the customer a reasonable indication of
the nature of the third parties' business.
(b) (1) A business required to comply with this section shall
designate a mailing address, electronic mail address, or, if the
business chooses to receive requests by telephone or facsimile, a
toll-free telephone or facsimile number, to which customers may
deliver requests pursuant to subdivision (a). A business required to
comply with this section shall, at its election, do at least one of
the following:
(A) Notify all agents and managers who directly supervise
employees who regularly have contact with customers of the designated
addresses or numbers or the means to obtain those addresses or
numbers and instruct those employees that customers who inquire about
the business's privacy practices or the business's compliance with
this section shall be informed of the designated addresses or numbers
or the means to obtain the addresses or numbers.
(B) Add to the home page of its Web site a link either to a page
titled "Your Privacy Rights" or add the words "Your Privacy Rights"
to the home page's link to the business's privacy policy. If the
business elects to add the words "Your Privacy Rights" to the link to
the business's privacy policy, the words "Your Privacy Rights" shall
be in the same style and size as the link to the business's privacy
policy. If the business does not display a link to its privacy policy
on the home page of its Web site, or does not have a privacy policy,
the words "Your Privacy Rights" shall be written in larger type than
the surrounding text, or in contrasting type, font, or color to the
surrounding text of the same size, or set off from the surrounding
text of the same size by symbols or other marks that call attention
to the language. The first page of the link shall describe a customer'
s rights pursuant to this section and shall provide the designated
mailing address, e-mail address, as required, or toll-free telephone
number or facsimile number, as appropriate. If the business elects to
add the words "Your California Privacy Rights" to the home page's
link to the business's privacy policy in a manner that complies with
this subdivision, and the first page of the link describes a customer'
s rights pursuant to this section, and provides the designated
mailing address, electronic mailing address, as required, or
toll-free telephone or facsimile number, as appropriate, the business
need not respond to requests that are not received at one of the
designated addresses or numbers.
(C) Make the designated addresses or numbers, or means to obtain
the designated addresses or numbers, readily available upon request
of a customer at every place of business in California where the
business or its agents regularly have contact with customers.
The response to a request pursuant to this section received at one
of the designated addresses or numbers shall be provided within 30
days. Requests received by the business at other than one of the
designated addresses or numbers shall be provided within a reasonable
period, in light of the circumstances related to how the request was
received, but not to exceed 150 days from the date received.
(2) A business that is required to comply with this section and
Section 6803 of Title 15 of the United States Code may comply with
this section by providing the customer the disclosure required by
Section 6803 of Title 15 of the United States Code, but only if the
disclosure also complies with this section.
(3) A business that is required to comply with this section is not
obligated to provide information associated with specific
individuals and may provide the information required by this section
in standardized format.
(c) (1) A business that is required to comply with this section is
not obligated to do so in response to a request from a customer more
than once during the course of any calendar year. A business with
fewer than 20 full-time or part-time employees is exempt from the
requirements of this section.
(2) If a business that is required to comply with this section
adopts and discloses to the public, in its privacy policy, a policy
of not disclosing personal information of customers to third parties
for the third parties' direct marketing purposes unless the customer
first affirmatively agrees to that disclosure, or of not disclosing
the personal information of customers to third parties for the third
parties' direct marketing purposes if the customer has exercised an
option that prevents that information from being disclosed to third
parties for those purposes, as long as the business maintains and
discloses the policies, the business may comply with subdivision (a)
by notifying the customer of his or her right to prevent disclosure
of personal information, and providing the customer with a cost-free
means to exercise that right.
(d) The following are among the disclosures not deemed to be
disclosures of personal information by a business for a third party's
direct marketing purposes for purposes of this section:
(1) Disclosures between a business and a third party pursuant to
contracts or arrangements pertaining to any of the following:
(A) The processing, storage, management, or organization of
personal information, or the performance of services on behalf of the
business during which personal information is disclosed, if the
third party that processes, stores, manages, or organizes the
personal information does not use the information for a third party's
direct marketing purposes and does not disclose the information to
additional third parties for their direct marketing purposes.
(B) Marketing products or services to customers with whom the
business has an established business relationship where, as a part of
the marketing, the business does not disclose personal information
to third parties for the third parties' direct marketing purposes.
(C) Maintaining or servicing accounts, including credit accounts
and disclosures pertaining to the denial of applications for credit
or the status of applications for credit and processing bills or
insurance claims for payment.
(D) Public record information relating to the right, title, or
interest in real property or information relating to property
characteristics, as defined in Section 408.3 of the Revenue and
Taxation Code, obtained from a governmental agency or entity or from
a multiple listing service, as defined in Section 1087, and not
provided directly by the customer to a business in the course of an
established business relationship.
(E) Jointly offering a product or service pursuant to a written
agreement with the third party that receives the personal
information, provided that all of the following requirements are met:
(i) The product or service offered is a product or service of, and
is provided by, at least one of the businesses that is a party to
the written agreement.
(ii) The product or service is jointly offered, endorsed, or
sponsored by, and clearly and conspicuously identifies for the
customer, the businesses that disclose and receive the disclosed
personal information.
(iii) The written agreement provides that the third party that
receives the personal information is required to maintain the
confidentiality of the information and is prohibited from disclosing
or using the information other than to carry out the joint offering
or servicing of a product or service that is the subject of the
written agreement.
(2) Disclosures to or from a consumer reporting agency of a
customer's payment history or other information pertaining to
transactions or experiences between the business and a customer if
that information is to be reported in, or used to generate, a
consumer report as defined in subdivision (d) of Section 1681a of
Title 15 of the United States Code, and use of that information is
limited by the federal Fair Credit Reporting Act (15 U.S.C. Sec. 1681
et seq.).
(3) Disclosures of personal information by a business to a third
party financial institution solely for the purpose of the business
obtaining payment for a transaction in which the customer paid the
business for goods or services with a check, credit card, charge
card, or debit card, if the customer seeks the information required
by subdivision (a) from the business obtaining payment, whether or
not the business obtaining payment knows or reasonably should know
that the third party financial institution has used the personal
information for its direct marketing purposes.
(4) Disclosures of personal information between a licensed agent
and its principal, if the personal information disclosed is necessary
to complete, effectuate, administer, or enforce transactions between
the principal and the agent, whether or not the licensed agent or
principal also uses the personal information for direct marketing
purposes, if that personal information is used by each of them solely
to market products and services directly to customers with whom both
have established business relationships as a result of the principal
and agent relationship.
(5) Disclosures of personal information between a financial
institution and a business that has a private label credit card,
affinity card, retail installment contract, or cobranded
card program with the financial
institution, if the personal information disclosed is necessary for
the financial institution to maintain or service accounts on behalf
of the business with which it has a private label credit card,
affinity card, retail installment contract, or cobranded card
program, or to complete, effectuate, administer, or enforce customer
transactions or transactions between the institution and the
business, whether or not the institution or the business also uses
the personal information for direct marketing purposes, if that
personal information is used solely to market products and services
directly to customers with whom both the business and the financial
institution have established business relationships as a result of
the private label credit card, affinity card, retail installment
contract, or cobranded card program.
(e) For purposes of this section, the following terms have the
following meanings:
(1) "Customer" means an individual who is a resident of California
who provides personal information to a business during the creation
of, or throughout the duration of, an established business
relationship if the business relationship is primarily for personal,
family, or household purposes.
(2) "Direct marketing purposes" means the use of personal
information to solicit or induce a purchase, rental, lease, or
exchange of products, goods, property, or services directly to
individuals by means of the mail, telephone, or electronic mail for
their personal, family, or household purposes. The sale, rental,
exchange, or lease of personal information for consideration to
businesses is a direct marketing purpose of the business that sells,
rents, exchanges, or obtains consideration for the personal
information. "Direct marketing purposes" does not include the use of
personal information (A) by bona fide tax exempt charitable or
religious organizations to solicit charitable contributions, (B) to
raise funds from and communicate with individuals regarding politics
and government, (C) by a third party when the third party receives
personal information solely as a consequence of having obtained for
consideration permanent ownership of accounts that might contain
personal information, or (D) by a third party when the third party
receives personal information solely as a consequence of a single
transaction where, as a part of the transaction, personal information
had to be disclosed in order to effectuate the transaction.
(3) "Disclose" means to disclose, release, transfer, disseminate,
or otherwise communicate orally, in writing, or by electronic or any
other means to any third party.
(4) "Employees who regularly have contact with customers" means
employees whose contact with customers is not incidental to their
primary employment duties, and whose duties do not predominantly
involve ensuring the safety or health of the business's customers. It
includes, but is not limited to, employees whose primary employment
duties are as cashier, clerk, customer service, sales, or promotion.
It does not, by way of example, include employees whose primary
employment duties consist of food or beverage preparation or service,
maintenance and repair of the business's facilities or equipment,
direct involvement in the operation of a motor vehicle, aircraft,
watercraft, amusement ride, heavy machinery or similar equipment,
security, or participation in a theatrical, literary, musical,
artistic, or athletic performance or contest.
(5) "Established business relationship" means a relationship
formed by a voluntary, two-way communication between a business and a
customer, with or without an exchange of consideration, for the
purpose of purchasing, renting, or leasing real or personal property,
or any interest therein, or obtaining a product or service from the
business, if the relationship is ongoing and has not been expressly
terminated by the business or the customer, or if the relationship is
not ongoing, but is solely established by the purchase, rental, or
lease of real or personal property from a business, or the purchase
of a product or service, and no more than 18 months have elapsed from
the date of the purchase, rental, or lease.
(6) (A) The categories of personal information required to be
disclosed pursuant to paragraph (1) of subdivision (a) are all of the
following:
(i) Name and address.
(ii) Electronic mail address.
(iii) Age or date of birth.
(iv) Names of children.
(v) Electronic mail or other addresses of children.
(vi) Number of children.
(vii) The age or gender of children.
(viii) Height.
(ix) Weight.
(x) Race.
(xi) Religion.
(xii) Occupation.
(xiii) Telephone number.
(xiv) Education.
(xv) Political party affiliation.
(xvi) Medical condition.
(xvii) Drugs, therapies, or medical products or equipment used.
(xviii) The kind of product the customer purchased, leased, or
rented.
(xix) Real property purchased, leased, or rented.
(xx) The kind of service provided.
(xxi) Social security number.
(xxii) Bank account number.
(xxiii) Credit card number.
(xxiv) Debit card number.
(xxv) Bank or investment account, debit card, or credit card
balance.
(xxvi) Payment history.
(xxvii) Information pertaining to the customer's creditworthiness,
assets, income, or liabilities.
(B) If a list, description, or grouping of customer names or
addresses is derived using any of these categories, and is disclosed
to a third party for direct marketing purposes in a manner that
permits the third party to identify, determine, or extrapolate any
other personal information from which the list was derived, and that
personal information when it was disclosed identified, described, or
was associated with an individual, the categories set forth in this
subdivision that correspond to the personal information used to
derive the list, description, or grouping shall be considered
personal information for purposes of this section.
(7) "Personal information" as used in this section means any
information that when it was disclosed identified, described, or was
able to be associated with an individual and includes all of the
following:
(A) An individual's name and address.
(B) Electronic mail address.
(C) Age or date of birth.
(D) Names of children.
(E) Electronic mail or other addresses of children.
(F) Number of children.
(G) The age or gender of children.
(H) Height.
(I) Weight.
(J) Race.
(K) Religion.
(L) Occupation.
(M) Telephone number.
(N) Education.
(O) Political party affiliation.
(P) Medical condition.
(Q) Drugs, therapies, or medical products or equipment used.
(R) The kind of product the customer purchased, leased, or rented.
(S) Real property purchased, leased, or rented.
(T) The kind of service provided.
(U) Social security number.
(V) Bank account number.
(W) Credit card number.
(X) Debit card number.
(Y) Bank or investment account, debit card, or credit card
balance.
(Z) Payment history.
(AA) Information pertaining to creditworthiness, assets, income,
or liabilities.
(8) "Third party" or "third parties" means one or more of the
following:
(A) A business that is a separate legal entity from the business
that has an established business relationship with a customer.
(B) A business that has access to a database that is shared among
businesses, if the business is authorized to use the database for
direct marketing purposes, unless the use of the database is exempt
from being considered a disclosure for direct marketing purposes
pursuant to subdivision (d).
(C) A business not affiliated by a common ownership or common
corporate control with the business required to comply with
subdivision (a).
(f) (1) Disclosures of personal information for direct marketing
purposes between affiliated third parties that share the same brand
name are exempt from the requirements of paragraph (1) of subdivision
(a) unless the personal information disclosed corresponds to one of
the following categories, in which case the customer shall be
informed of those categories listed in this subdivision that
correspond to the categories of personal information disclosed for
direct marketing purposes and the third party recipients of personal
information disclosed for direct marketing purposes pursuant to
paragraph (2) of subdivision (a):
(A) Number of children.
(B) The age or gender of children.
(C) Electronic mail or other addresses of children.
(D) Height.
(E) Weight.
(F) Race.
(G) Religion.
(H) Telephone number.
(I) Medical condition.
(J) Drugs, therapies, or medical products or equipment used.
(K) Social security number.
(L) Bank account number.
(M) Credit card number.
(N) Debit card number.
(O) Bank or investment account, debit card, or credit card
balance.
(2) If a list, description, or grouping of customer names or
addresses is derived using any of these categories, and is disclosed
to a third party or third parties sharing the same brand name for
direct marketing purposes in a manner that permits the third party to
identify, determine, or extrapolate the personal information from
which the list was derived, and that personal information when it was
disclosed identified, described, or was associated with an
individual, any other personal information that corresponds to the
categories set forth in this subdivision used to derive the list,
description, or grouping shall be considered personal information for
purposes of this section.
(3) If a business discloses personal information for direct
marketing purposes to affiliated third parties that share the same
brand name, the business that discloses personal information for
direct marketing purposes between affiliated third parties that share
the same brand name may comply with the requirements of paragraph
(2) of subdivision (a) by providing the overall number of affiliated
companies that share the same brand name.
(g) The provisions of this section are severable. If any provision
of this section or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.
(h) This section does not apply to a financial institution that is
subject to the California Financial Information Privacy Act
(Division 1.2 (commencing with Section 4050) of the Financial Code)
if the financial institution is in compliance with Sections 4052,
4052.5, 4053, 4053.5, and 4054.6 of the Financial Code, as those
sections read when they were chaptered on August 28, 2003, and as
subsequently amended by the Legislature or by initiative.
(i) This section shall become operative on January 1, 2005.
SEC. 17. Section 1936 of the Civil Code, as amended by Section 1
of Chapter 317 of the Statutes of 2004, is amended to read:
1936.
(a) For the purpose of this section, the following definitions
shall apply:
(1) "Rental company" means any person or entity in the business of
renting passenger vehicles to the public.
(2) "Renter" means any person in any manner obligated under a
contract for the lease or hire of a passenger vehicle from a rental
company for a period of less than 30 days.
(3) "Authorized driver" means (A) the renter, (B) the renter's
spouse if that person is a licensed driver and satisfies the rental
company's minimum age requirement, (C) the renter's employer or
coworkers if they are engaged in business activity with the renter,
are licensed drivers, and satisfy the rental company's minimum age
requirement, and (D) any person expressly listed by the rental
company on the renter's contract as an authorized driver.
(4) (A) "Customer facility charge" means a fee required by an
airport to be collected by a rental company from a renter for any of
the following purposes:
(i) The fee shall be used to finance, design, and construct
consolidated airport car rental facilities.
(ii) The fee shall be used to finance, design, construct, and
provide common-use transportation systems that move passengers
between airport terminals and those consolidated car rental
facilities.
(B) The aggregate amount to be collected may not exceed the
reasonable costs, as determined by an independent audit paid for by
the airport, to finance, design, and construct those facilities.
Copies of the audit shall be provided to the Assembly and Senate
Committees on Judiciary and Committees on Transportation. In the case
of a transportation system, the audit shall also consider the
reasonable costs of providing the transit system or busing network.
At the Burbank Airport, and at all other airports, the fees
designated as a Customer Facility Charge may not be used to pay for
terminal expansion, gate expansion, runway expansion, changes in
hours of operation, or changes in the number of flights arriving or
departing from the airport.
(C) The authorization given pursuant to this section for an
airport to impose a customer facility charge shall become inoperative
when the bonds used for financing are paid.
(5) "Damage waiver" means a rental company's agreement not to hold
a renter liable for all or any portion of any damage or loss related
to the rented vehicle, any loss of use of the rented vehicle, or any
storage, impound, towing, or administrative charges.
(6) "Electronic surveillance technology" means a technological
method or system used to observe, monitor, or collect information,
including telematics, Global Positioning System (GPS), wireless
technology, or location-based technologies. "Electronic surveillance
technology" does not include event data recorders (EDR), sensing and
diagnostic modules (SDM), or other systems that are used either:
(A) For the purpose of identifying, diagnosing, or monitoring
functions related to the potential need to repair, service, or
perform maintenance on the rental vehicle.
(B) As part of the vehicle's airbag sensing and diagnostic system
in order to capture safety systems-related data for retrieval after a
crash has occurred or in the event that the collision sensors are
activated to prepare the decisionmaking computer to make the
determination to deploy or not to deploy the airbag.
(7) "Estimated time for replacement" means the number of hours of
labor, or fraction thereof, needed to replace damaged vehicle parts
as set forth in collision damage estimating guides generally used in
the vehicle repair business and commonly known as "crash books."
(8) "Estimated time for repair" means a good faith estimate of the
reasonable number of hours of labor, or fraction thereof, needed to
repair damaged vehicle parts.
(9) "Membership program" means a service offered by a rental
company that permits customers to bypass the rental counter and go
directly to the car previously reserved. A membership program shall
meet all of the following requirements:
(A) The renter initiates enrollment by completing an application
on which the renter can specify a preference for type of vehicle and
acceptance or declination of optional services.
(B) The rental company fully discloses, prior to the enrollee's
first rental as a participant in the program, all terms and
conditions of the rental agreement as well as all required
disclosures.
(C) The renter may terminate enrollment at any time.
(D) The rental company fully explains to the renter that
designated preferences, as well as acceptance or declination of
optional services, may be changed by the renter at any time for the
next and future rentals.
(E) An employee designated to receive the form specified in
subparagraph (C) of paragraph (1) of subdivision (r) is present at
the lot where the renter takes possession of the car, to receive any
change in the rental agreement from the renter.
(10) "Passenger vehicle" means a passenger vehicle as defined in
Section 465 of the Vehicle Code.
(b) Except as limited by subdivision (c), a rental company and a
renter may agree that the renter will be responsible for no more than
all of the following:
(1) Physical or mechanical damage to the rented vehicle up to its
fair market value, as determined in the customary market for the sale
of that vehicle, resulting from collision regardless of the cause of
the damage.
(2) Loss due to theft of the rented vehicle up to its fair market
value, as determined in the customary market for the sale of that
vehicle, provided that the rental company establishes by clear and
convincing evidence that the renter or the authorized driver failed
to exercise ordinary care while in possession of the vehicle. In
addition, the renter shall be presumed to have no liability for any
loss due to theft if (A) an authorized driver has possession of the
ignition key furnished by the rental company or an authorized driver
establishes that the ignition key furnished by the rental company was
not in the vehicle at the time of the theft, and (B) an authorized
driver files an official report of the theft with the police or other
law enforcement agency within 24 hours of learning of the theft and
reasonably cooperates with the rental company and the police or other
law enforcement agency in providing information concerning the
theft. The presumption set forth in this paragraph is a presumption
affecting the burden of proof which the rental company may rebut by
establishing that an authorized driver committed, or aided and
abetted the commission of, the theft.
(3) Physical damage to the rented vehicle up to its fair market
value, as determined in the customary market for the sale of that
vehicle, resulting from vandalism occurring after, or in connection
with, the theft of the rented vehicle. However, the renter shall have
no liability for any damage due to vandalism if the renter would
have no liability for theft pursuant to paragraph (2).
(4) Physical damage to the rented vehicle up to a total of five
hundred dollars ($500) resulting from vandalism unrelated to the
theft of the rented vehicle.
(5) Actual charges for towing, storage, and impound fees paid by
the rental company if the renter is liable for damage or loss.
(6) An administrative charge, which shall include the cost of
appraisal and all other costs and expenses incident to the damage,
loss, repair, or replacement of the rented vehicle.
(c) The total amount of the renter's liability to the rental
company resulting from damage to the rented vehicle may not exceed
the sum of the following:
(1) The estimated cost of parts which the rental company would
have to pay to replace damaged vehicle parts. All discounts and price
reductions or adjustments that are or will be received by the rental
company shall be subtracted from the estimate to the extent not
already incorporated in the estimate or otherwise promptly credited
or refunded to the renter.
(2) The estimated cost of labor to replace damaged vehicle parts
which may not exceed the product of (A) the rate for labor usually
paid by the rental company to replace vehicle parts of the type that
were damaged and (B) the estimated time for replacement. All
discounts and price reductions or adjustments that are or will be
received by the rental company shall be subtracted from the estimate
to the extent not already incorporated in the estimate or otherwise
promptly credited or refunded to the renter.
(3) (A) The estimated cost of labor to repair damaged vehicle
parts, which may not exceed the lesser of the following:
(i) The product of the rate for labor usually paid by the rental
company to repair vehicle parts of the type that were damaged and the
estimated time for repair.
(ii) The sum of the estimated labor and parts costs determined
under paragraphs (1) and (2) to replace the same vehicle parts.
(B) All discounts and price reductions or adjustments that are or
will be received by the rental company shall be subtracted from the
estimate to the extent not already incorporated in the estimate or
otherwise promptly credited or refunded to the renter.
(4) For the purpose of converting the estimated time for repair
into the same units of time in which the rental rate is expressed, a
day shall be deemed to consist of eight hours.
(5) Actual charges for towing, storage, and impound fees paid by
the rental company.
(6) The administrative charge described in paragraph (6) of
subdivision (b) may not exceed (A) fifty dollars ($50) if the total
estimated cost for parts and labor is more than one hundred dollars
($100) up to and including five hundred dollars ($500), (B) one
hundred dollars ($100) if the total estimated cost for parts and
labor exceeds five hundred dollars ($500) up to and including one
thousand five hundred dollars ($1,500), and (C) one hundred fifty
dollars ($150) if the total estimated cost for parts and labor
exceeds one thousand five hundred dollars ($1,500). No administrative
charge may be imposed if the total estimated cost of parts and labor
is one hundred dollars ($100) or less.
(d) (1) The total amount of an authorized driver's liability to
the rental company, if any, for damage occurring during the
authorized driver's operation of the rented vehicle may not exceed
the amount of the renter's liability under subdivision (c).
(2) A rental company may not recover from the renter or other
authorized driver an amount exceeding the renter's liability under
subdivision (c).
(3) A claim against a renter resulting from damage or loss,
excluding loss of use, to a rental vehicle shall be reasonably and
rationally related to the actual loss incurred. A rental company
shall mitigate damages where possible and may not assert or collect
any claim for physical damage which exceeds the actual costs of the
repairs performed or the estimated cost of repairs, if the rental
company chooses not to repair the vehicle, including all discounts
and price reductions. However, if the vehicle is a total loss
vehicle, the claim may not exceed the total loss vehicle value
established in accordance with procedures that are customarily used
by insurance companies when paying claims on total loss vehicles,
less the proceeds from salvaging the vehicle, if those proceeds are
retained by the rental company.
(4) If insurance coverage exists under the renter's applicable
personal or business insurance policy and the coverage is confirmed
during regular business hours, the renter may require that the rental
company submit any claims to the renter's applicable personal or
business insurance carrier. The rental company may not make any
written or oral representations that it will not present claims or
negotiate with the renter's insurance carrier. For purposes of this
paragraph, confirmation of coverage includes telephone confirmation
from insurance company representatives during regular business hours.
Upon request of the renter and after confirmation of coverage, the
amount of claim shall be resolved between the insurance carrier and
the rental company. The renter shall remain responsible for payment
to the rental car company for any loss sustained that the renter's
applicable personal or business insurance policy does not cover.
(5) A rental company may not recover from the renter or other
authorized driver for any item described in subdivision (b) to the
extent the rental company obtains recovery from any other person.
(6) This section applies only to the maximum liability of a renter
or other authorized driver to the rental company resulting from
damage to the rented vehicle and not to the liability of any other
person.
(e) (1) Except as provided in subdivision (f), every damage waiver
shall provide or, if not expressly stated in writing, shall be
deemed to provide that the renter has no liability for any damage,
loss, loss of use, or any cost or expense incident thereto.
(2) Except as provided in subdivision (f), every limitation,
exception, or exclusion to any damage waiver is void and
unenforceable.
(f) A rental company may provide in the rental contract that a
damage waiver does not apply under any of the following
circumstances:
(1) Damage or loss results from an authorized driver's (A)
intentional, willful, wanton, or reckless conduct, (B) operation of
the vehicle under the influence of drugs or alcohol in violation of
Section 23152 of the Vehicle Code, (C) towing or pushing anything, or
(D) operation of the vehicle on an unpaved road if the damage or
loss is a direct result of the road or driving conditions.
(2) Damage or loss occurs while the vehicle is (A) used for
commercial hire, (B) used in connection with conduct that could be
properly charged as a felony, (C) involved in a speed test or contest
or in driver training activity, (D) operated by a person other than
an authorized driver, or (E) operated outside of the United States.
(3) Any authorized driver who has (A) provided fraudulent
information to the rental company or (B) provided false information
and the rental company would not have rented the vehicle if it had
instead received true information.
(g) (1) A rental company that offers or provides a damage waiver
for any consideration in addition to the rental rate shall clearly
and conspicuously disclose the following information in the rental
contract or holder in which the contract is placed and, also, in
signs posted at the place, such as the counter, where the renter
signs the rental contract, and, for renters who are enrolled in the
rental company's membership program, in a sign which shall be posted
in a location clearly visible to those renters as they enter the
location where their reserved rental cars are parked or near the exit
of the bus or other conveyance that transports the enrollee to a
reserved car: (A) the nature of the renter's liability, e.g.,
liability for all collision damage regardless of cause, (B) the
extent of the renter's liability, e.g., liability for damage or loss
up to a specified amount, (C) the renter's personal insurance policy
or the credit card used to pay for the car rental transaction may
provide coverage for all or a portion of the renter's potential
liability, (D) the renter should consult with his or her insurer to
determine the scope of insurance coverage, including the amount of
the deductible, if any, for which the renter is obligated, (E) the
renter may purchase an optional damage waiver to cover all liability,
subject to whatever exceptions the rental company expressly lists
that are permitted under subdivision (f), and (F) the range of
charges for the damage waiver.
(2) In
addition to the requirements of paragraph (1), a rental company that
offers or provides a damage waiver shall, orally disclose to all
renters, except those who are participants in the rental company's
membership program, that the damage waiver may be duplicative of
coverage that the customer maintains under his or her own policy of
motor vehicle insurance. The renter's receipt of the oral disclosure
shall be demonstrated through the renter acknowledging receipt of the
oral disclosure near that part of the contract where the renter
indicates, by the renter's own initials, his or her acceptance or
declination of the damage waiver. Adjacent to that same part, the
contract shall also state that the damage waiver is optional.
(3) The following is an example, for purposes of illustration and
not limitation, of a notice fulfilling the requirements of paragraph
(1) for a rental company that imposes liability on the renter for
collision damage to the full value of the vehicle:
NOTICE ABOUT YOUR FINANCIAL RESPONSIBILITY AND OPTIONAL DAMAGE
WAIVER
You are responsible for all collision damage to the rented vehicle
even if someone else caused it or the cause is unknown. You are
responsible for the cost of repair up to the value of the vehicle,
and towing, storage, and impound fees.
Your own insurance, or the issuer of the credit card you use to
pay for the car rental transaction, may cover all or part of your
financial responsibility for the rented vehicle. You should check
with your insurance company, or credit card issuer, to find out about
your coverage and the amount of the deductible, if any, for which
you may be liable.
Further, if you use a credit card that provides coverage for your
potential liability, you should check with the issuer to determine if
you must first exhaust the coverage limits of your own insurance
before the credit card coverage applies.
The rental company will not hold you responsible if you buy a
damage waiver. But a damage waiver will not protect you if (list
exceptions).
(A) When the above notice is printed in the rental contract or
holder in which the contract is placed, the following shall be
printed immediately following the notice:
"The cost of an optional damage waiver is $____ for every (day or
week)."
(B) When the above notice appears on a sign, the following shall
appear immediately adjacent to the notice:
"The cost of an optional damage waiver is $____ to $____ for every
(day or week), depending upon the vehicle rented."
(h) Notwithstanding any other provision of law, a rental company
may sell a damage waiver subject to the following rate limitations
for each full or partial 24-hour rental day for the damage waiver:
(1) For rental vehicles that the rental company designates as an
"economy car," "subcompact car," "compact car," or any other term
having similar meaning when offered for rental, or any other vehicle
having a manufacturer's suggested retail price of nineteen thousand
dollars ($19,000) or less, the rate may not exceed nine dollars ($9).
(2) For rental vehicles that have a manufacturer's suggested
retail price from nineteen thousand one dollars ($19,001) to
thirty-four thousand nine hundred ninety-nine dollars ($34,999),
inclusive, and that are also either vehicles of next year's model, or
not older than the previous year's model, the rate may not exceed
fifteen dollars ($15). For those rental vehicles older than the
previous year's model, the rate may not exceed nine dollars ($9).
(i) On or after January 1, 2003, the manufacturer's suggested
retail prices described in subdivision (h) shall be adjusted annually
to reflect changes from the previous year in the Consumer Price
Index. For the purposes of this section, "Consumer Price Index" means
the United States Consumer Price Index for All Urban Consumers, for
all items.
(j) A rental company that disseminates in this state an
advertisement containing a rental rate shall include in that
advertisement a clearly readable statement of the charge for a damage
waiver and a statement that a damage waiver is optional.
(k) (1) A rental company may not require the purchase of a damage
waiver, optional insurance, or any other optional good or service.
(2) A rental company may not engage in any unfair, deceptive, or
coercive conduct to induce a renter to purchase the damage waiver,
optional insurance, or any other optional good or service, including
conduct such as, but not limited to, refusing to honor the renter's
reservation, limiting the availability of vehicles, requiring a
deposit, or debiting or blocking the renter's credit card account for
a sum equivalent to a deposit if the renter declines to purchase the
damage waiver, optional insurance, or any other optional good or
service.
(l) (1) In the absence of express permission granted by the renter
subsequent to damage to, or loss of, the vehicle, a rental company
may not seek to recover any portion of any claim arising out of
damage to, or loss of, the rented vehicle by processing a credit card
charge or causing any debit or block to be placed on the renter's
credit card account.
(2) A rental company may not engage in any unfair, deceptive, or
coercive tactics in attempting to recover or in recovering on any
claim arising out of damage to, or loss of, the rented vehicle.
(m) (1) A customer facility charge may be collected by a rental
company under the following circumstances:
(A) Collection of the fee by the rental company is required by an
airport operated by a city, a county, a city and county, a joint
powers authority, or a special district.
(B) The fee is calculated on a per-contract basis.
(C) The fee is a user fee, not a tax imposed upon real property or
an incidence of property ownership under Article XIII D of the
California Constitution.
(D) Except as otherwise provided in subparagraph (E), the fee
shall be ten dollars ($10) per contract.
(E) If the fee imposed by the airport is for both a consolidated
rental car facility and a common-use transportation system, the fee
collected from customers of on-airport rental car companies shall be
ten dollars ($10), but the fee imposed on customers of off-airport
rental car companies who are transported on the common-use
transportation system is proportionate to the costs of the common-use
transportation system only. The fee is uniformly applied to each
class of on-airport or off-airport customers, provided the airport
requires off-airport customers to use the common-use transportation
system.
(F) Revenues collected from the fee do not exceed the reasonable
costs of financing, designing, constructing, or operating the
facility or services and may not be used for any other purpose.
(G) The fee is separately identified on the rental agreement.
(H) This paragraph does not apply to airports whose fees are
governed by Section 1936.5 of the Civil Code, Section 50474.1 of the
Government Code, or Section 57.5 of the San Diego Unified Port
District Act.
(2) Notwithstanding any other provision of law, including, but not
limited to, Part 1 (commencing with Section 6001) to Part 1.7
(commencing with Section 7280), inclusive, of Division 2 of the
Revenue and Taxation Code, the fees collected pursuant to this
section, or any other law whereby a local agency operating an airport
requires a rental car company to collect a facility financing fee
from its customers, are not subject to sales, use, or transaction
taxes.
(n) (1) A rental company shall only advertise, quote, and charge a
rental rate that includes the entire amount except taxes, a customer
facility charge, if any, and a mileage charge, if any, which a
renter must pay to hire or lease the vehicle for the period of time
to which the rental rate applies. A rental company may not charge in
addition to the rental rate, taxes, a customer facility charge, if
any, and a mileage charge, if any, any fee which must be paid by the
renter as a condition of hiring or leasing the vehicle, such as, but
not limited to, required fuel or airport surcharges other than
customer facility charges, nor any fee for transporting the renter to
the location where the rented vehicle will be delivered to the
renter.
(2) In addition to the rental rate, taxes, customer facility
charges, if any, and mileage charges, if any, a rental company may
charge for an item or service provided in connection with a
particular rental transaction if the renter could have avoided
incurring the charge by choosing not to obtain or utilize the
optional item or service. Items and services for which the rental
company may impose an additional charge include, but are not limited
to, optional insurance and accessories requested by the renter,
service charges incident to the renter's optional return of the
vehicle to a location other than the location where the vehicle was
hired or leased, and charges for refueling the vehicle at the
conclusion of the rental transaction in the event the renter did not
return the vehicle with as much fuel as was in the fuel tank at the
beginning of the rental. A rental company also may impose an
additional charge based on reasonable age criteria established by the
rental company.
(3) A rental company may not charge any fee for authorized drivers
in addition to the rental charge for an individual renter.
(4) If a rental company states a rental rate in print
advertisement or in a telephonic, in-person, or computer-transmitted
quotation, the rental company shall clearly disclose in that
advertisement or quotation the terms of any mileage conditions
relating to the advertised or quoted rental rate, including, but not
limited to, to the extent applicable, the amount of mileage and gas
charges, the number of miles for which no charges will be imposed,
and a description of geographic driving limitations within the United
States and Canada.
(5) (A) When a rental rate is stated in an advertisement,
quotation, or reservation in connection with a car rental at an
airport where a customer facility charge is imposed, the rental
company shall clearly disclose the existence and amount of the
customer facility charge. For the purposes of this subparagraph,
advertisements include radio, television, other electronic media, and
print advertisements. For purposes of this subparagraph, quotations
and reservations include those that are telephonic, in-person, and
computer-transmitted. If the rate advertisement is intended to
include transactions at more than one airport imposing a customer
facility charge, a range of fees may be stated in the advertisement.
However, all rate advertisements that include car rentals at airport
destinations shall clearly and conspicuously include a toll-free
telephone number whereby a customer can be told the specific amount
of the customer facility charge to which the customer will be
obligated.
(B) If any person or entity other than a rental car company,
including a passenger carrier or a seller of travel services,
advertises or quotes a rate for a car rental at an airport where a
customer facility charge is imposed, that person or entity shall, if
they are provided with information about the existence and amount of
the fee, to the extent not specifically prohibited by federal law,
clearly disclose the existence and amount of the fee in any
telephonic, in-person, or computer-transmitted quotation at the time
of making an initial quotation of a rental rate and at the time of
making a reservation of a rental car. If a rental car company
provides the person or entity with rate and customer facility charge
information, the rental car company is not responsible for the
failure of that person or entity to comply with this subparagraph
when quoting or confirming a rate to a third person or entity.
(6) If a rental company delivers a vehicle to a renter at a
location other than the location where the rental company normally
carries on its business, the rental company may not charge the renter
any amount for the rental for the period before the delivery of the
vehicle. If a rental company picks up a rented vehicle from a renter
at a location other than the location where the rental company
normally carries on its business, the rental company may not charge
the renter any amount for the rental for the period after the renter
notifies the rental company to pick up the vehicle.
(o) A rental company may not use, access, or obtain any
information relating to the renter's use of the rental vehicle that
was obtained using electronic surveillance technology, except in the
following circumstances:
(1) (A) When the equipment is used by the rental company only for
the purpose of locating a stolen, abandoned, or missing rental
vehicle after one of the following:
(i) The renter or law enforcement has informed the rental company
that the vehicle has been stolen, abandoned, or missing.
(ii) The rental vehicle has not been returned following one week
after the contracted return date, or by one week following the end of
an extension of that return date.
(iii) The rental company discovers the rental vehicle has been
stolen or abandoned, and, if stolen, it has reported the vehicle
stolen to law enforcement by filing a stolen vehicle report, unless
law enforcement has already informed the rental company that the
vehicle has been stolen, abandoned, or is missing.
(B) If electronic surveillance technology is activated pursuant to
subparagraph (A) of paragraph (1), a rental company shall maintain a
record, in either electronic or written form, of information
relevant to the activation of that technology. That information shall
include the rental agreement, including the return date, and the
date and time the electronic surveillance technology was activated.
The record shall also include, if relevant, a record of any written
or other communication with the renter, including communications
regarding extensions of the rental, police reports, or other written
communication with law enforcement officials. The record shall be
maintained for a period of at least 12 months from the time the
record is created and shall be made available upon the renter's
request. The rental company shall maintain and furnish any
explanatory codes necessary to read the record. A rental company
shall not be required to maintain a record if electronic surveillance
technology is activated to recover a rental vehicle that is stolen
or missing at a time other than during a rental period.
(2) In response to a specific request from law enforcement
pursuant to a subpoena or search warrant.
(3) Nothing in this subdivision prohibits a rental company from
equipping rental vehicles with GPS-based technology that provides
navigation assistance to the occupants of the rental vehicle, if the
rental company does not use, access, or obtain any information
relating to the renter's use of the rental vehicle that was obtained
using that technology, except for the purposes of discovering or
repairing a defect in the technology and the information may then be
used only for that purpose.
(4) Nothing in this subdivision prohibits a rental company from
equipping rental vehicles with electronic surveillance technology
that allows for the remote locking or unlocking of the vehicle at the
request of the renter, if the rental company does not use, access,
or obtain any information relating to the renter's use of the rental
vehicle that was obtained using that technology, except as necessary
to lock or unlock the vehicle.
(5) Nothing in this subdivision prohibits a rental company from
equipping rental vehicles with electronic surveillance technology
that allows the company to provide roadside assistance, such as
towing or flat tire or fuel services, at the request of the renter,
if the rental company does not use, access, or obtain any information
relating to the renter's use of the rental vehicle that was obtained
using that technology except as necessary to provide the requested
roadside assistance.
(6) Nothing in this subdivision prohibits a rental company from
obtaining, accessing, or using information from electronic
surveillance technology for the sole purpose of determining the date
and time the vehicle is returned to the rental company, the total
mileage driven, and the vehicle fuel level of the returned vehicle.
This paragraph, however, shall apply only after the renter has
returned the vehicle to the rental company, and the information shall
only be used for the purpose described in this paragraph.
(p) A rental company may not use electronic surveillance
technology to track a renter in order to impose fines or surcharges
relating to the renter's use of the rental vehicle.
(q) A renter may bring an action against a rental company for the
recovery of damages and appropriate equitable relief for a violation
of this section. The prevailing party shall be entitled to recover
reasonable attorney's fees and costs.
(r) A rental company that brings an action against a renter for
loss due to theft of the vehicle shall bring the action in the county
in which the renter resides or, if the renter is not a resident of
this state, in the jurisdiction in which the renter resides.
(s) Any waiver of any of the provisions of this section shall be
void and unenforceable as contrary to public policy.
(t) (1) A rental company's disclosure requirements shall be
satisfied for renters who are enrolled in the rental company's
membership program if all of the following conditions are met:
(A) Prior to the enrollee's first rental as a participant in the
program, the renter receives, in writing, the following:
(i) All of the disclosures required by paragraph (1) of
subdivision (g), including the terms and conditions of the rental
agreement then in effect.
(ii) A Web site address, as well as a contact number or address,
where the enrollee can learn of any changes to the rental agreement
or to the laws of this state governing rental agreements since the
effective date of the rental company's most recent restatement of the
rental agreement and distribution of that restatement to its
members.
(B) At the commencement of each rental period, the renter is
provided, on the rental record or the folder in which it is inserted,
with a printed notice stating that he or she had either previously
selected or declined an optional damage waiver and that the renter
has the right to change preferences.
(C) At the commencement of each rental period, the rental company
provides, on the rearview mirror, a hanger on which a statement is
printed in a box, in at least 12-point boldface type, notifying the
renter that the collision damage waiver offered by the rental company
may be duplicative of coverage that the customer maintains under his
or her own policy of motor vehicle insurance. If it is not feasible
to hang the statement from the rearview mirror, the statement shall
be hung from the steering wheel.
The hanger shall provide the renter a box to initial if the renter
(not his or her employer) has previously accepted or declined the
collision damage waiver and now wishes to change his or her decision
to accept or decline the collision damage waiver, as follows:
"□ If I previously accepted the collision damage waiver, I now
decline it. □ If I previously declined the collision damage
waiver, I now accept it." The hanger shall also provide a box for the
enrollee to indicate whether this change applies to this rental
transaction only or to all future rental transactions. The hanger
shall also notify the renter that he or she may make such a change,
prior to leaving the lot, by returning the form to an employee
designated to receive the form who is present at the lot where the
renter takes possession of the car, to receive any change in the
rental agreement from the renter.
(2) (A) This subdivision is not effective unless the employee
designated pursuant to subparagraph (E) of paragraph (8) of
subdivision (a) is actually present at the required location.
(B) This subdivision does not relieve the rental company from
those disclosures that are required to be made within the text of a
contract or holder in which the contract is placed; in or on an
advertisement containing a rental rate; or in a telephonic,
in-person, or computer-transmitted quotation or reservation.
(u) The amendments made to this section during the 2001-02 Regular
Session of the Legislature do not affect litigation pending on or
before January 1, 2003, alleging a violation of Section 22325 of the
Business and Professions Code as it read at the time the action was
commenced.
(v) This section shall remain in effect only until January 1,
2006, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2006, deletes or extends
that date.
SEC. 18. Section 1936 of the Civil Code, as amended by Section 2
of Chapter 317 of the Statutes of 2004, is amended to read:
1936.
(a) For the purpose of this section, the following terms have the
following meanings:
(1) "Rental company" means any person or entity in the business of
renting passenger vehicles to the public.
(2) "Renter" means any person in any manner obligated under a
contract for the lease or hire of a passenger vehicle from a rental
company for a period of less than 30 days.
(3) "Authorized driver" means (A) the renter, (B) the renter's
spouse if that person is a licensed driver and satisfies the rental
company's minimum age requirement, (C) the renter's employer or
coworker if they are engaged in business activity with the renter,
are licensed drivers, and satisfy the rental company's minimum age
requirement, and (D) any person expressly listed by the rental
company on the renter's contract as an authorized driver.
(A) "Customer facility charge" means a fee required by an airport
to be collected by a rental company from a renter for any of the
following purposes:
(i) The fee shall be used to finance, design, and construct
consolidated airport car rental facilities.
(ii) The fee shall be used to finance, design, construct, and
provide common-use transportation systems that move passengers
between airport terminals and those consolidated car rental
facilities.
(B) The aggregate amount to be collected may not exceed the
reasonable costs, as determined by an independent audit paid for by
the airport, to finance, design, and construct those facilities.
Copies of the audit shall be provided to the Assembly and Senate
Committees on Judiciary and Committees on Transportation. In the case
of a transportation system, the audit shall also consider the
reasonable costs of providing the transit system or busing network.
At the Burbank Airport, and at all other airports, the fees
designated as a customer facility charge may not be used to pay for
terminal expansion, gate expansion, runway expansion, changes in
hours of operation, or changes in the number of flights arriving or
departing from the airport.
(C) The authorization given pursuant to this section for an
airport to impose a customer facility charge shall become inoperative
when the bonds used for financing are paid.
(4) "Damage waiver" means a rental company's agreement not to hold
a renter liable for all or any portion of any damage or loss related
to the rented vehicle, any loss of use of the rented vehicle, or any
storage, impound, towing, or administrative charges.
(5) "Electronic surveillance technology" means a technological
method or system used to observe, monitor, or collect information,
including telematics, Global Positioning System (GPS), wireless
technology, or location-based technologies. "Electronic surveillance
technology" does not include event data recorders (EDR), sensing and
diagnostic modules (SDM), or other systems that are used either:
(A) For the purpose of identifying, diagnosing, or monitoring
functions related to the potential need to repair, service, or
perform maintenance on the rental vehicle.
(B) As part of the vehicle's airbag sensing and diagnostic system
in order to capture safety systems-related data for retrieval after a
crash has occurred or in the event that the collision sensors are
activated to prepare the decisionmaking computer to make the
determination to deploy or not to deploy the airbag.
(6) "Estimated time for replacement" means the number of hours of
labor, or fraction thereof, needed to replace damaged vehicle parts
as set forth in collision damage estimating guides generally used in
the vehicle repair business and commonly known as "crash books."
(7) "Estimated time for repair" means a good faith estimate of the
reasonable number of hours of labor, or fraction thereof, needed to
repair damaged vehicle parts.
(8) "Passenger vehicle" means a passenger vehicle as defined in
Section 465 of the Vehicle Code.
(b) Except as limited by subdivision (c), a rental company and a
renter may agree that the renter will be responsible for no more than
all of the following:
(1) Physical or mechanical damage to the rented vehicle up to its
fair market value, as determined in the customary market for the sale
of that vehicle, resulting from collision regardless of the cause of
the damage.
(2) Loss due to theft of the rented vehicle up to its fair market
value, as determined in the customary market for the sale of that
vehicle, provided that the rental company establishes by clear and
convincing evidence that the renter or the authorized driver failed
to exercise ordinary care while in possession of the vehicle. In
addition, the renter shall be presumed to have no liability for any
loss due to theft if (A) an authorized driver has possession of the
ignition key furnished by the rental company or an authorized driver
establishes that the ignition key furnished by the rental company was
not in the vehicle at the time of the theft, and (B) an authorized
driver files an official report of the theft with the police or other
law enforcement agency within 24 hours of learning of the theft and
reasonably cooperates with the rental company and the police or other
law enforcement agency in providing information concerning the
theft. The presumption set forth in this paragraph is a presumption
affecting the burden of proof which the rental company may rebut by
establishing that an authorized driver committed, or aided and
abetted the commission of, the theft.
(3) Physical damage to the rented vehicle up to its fair market
value, as determined in the customary market for the sale of that
vehicle, resulting from vandalism occurring after, or in connection
with, the theft of the rented vehicle; however, the renter shall have
no liability for any
damage due to vandalism if the renter would have no liability for
theft pursuant to paragraph (2).
(4) Physical damage to the rented vehicle up to a total of five
hundred dollars ($500) resulting from vandalism unrelated to the
theft of the rented vehicle.
(5) Actual charges for towing, storage, and impound fees paid by
the rental company if the renter is liable for damage or loss.
(6) An administrative charge, which shall include the cost of
appraisal and all other costs and expenses incident to the damage,
loss, repair, or replacement of the rented vehicle.
(c) The total amount of the renter's liability to the rental
company resulting from damage to the rented vehicle may not exceed
the sum of the following:
(1) The estimated cost of parts which the rental company would
have to pay to replace damaged vehicle parts. All discounts and price
reductions or adjustments that are or will be received by the rental
company shall be subtracted from the estimate to the extent not
already incorporated in the estimate or otherwise promptly credited
or refunded to the renter.
(2) The estimated cost of labor to replace damaged vehicle parts
which may not exceed the product of (A) the rate for labor usually
paid by the rental company to replace vehicle parts of the type that
were damaged and (B) the estimated time for replacement. All
discounts and price reductions or adjustments that are or will be
received by the rental company shall be subtracted from the estimate
to the extent not already incorporated in the estimate or otherwise
promptly credited or refunded to the renter.
(3) (A) The estimated cost of labor to repair damaged vehicle
parts, which may not exceed the lesser of the following:
(i) The product of the rate for labor usually paid by the rental
company to repair vehicle parts of the type that were damaged and the
estimated time for repair.
(ii) The sum of the estimated labor and parts costs determined
under paragraphs (1) and (2) to replace the same vehicle parts.
(B) All discounts and price reductions or adjustments that are or
will be received by the rental company shall be subtracted from the
estimate to the extent not already incorporated in the estimate or
otherwise promptly credited or refunded to the renter.
(4) For the purpose of converting the estimated time for repair
into the same units of time in which the rental rate is expressed, a
day shall be deemed to consist of eight hours.
(5) Actual charges for towing, storage, and impound fees paid by
the rental company.
(6) The administrative charge described in paragraph (6) of
subdivision (b) may not exceed (A) fifty dollars ($50) if the total
estimated cost for parts and labor is more than one hundred dollars
($100) up to and including five hundred dollars ($500), (B) one
hundred dollars ($100) if the total estimated cost for parts and
labor exceeds five hundred dollars ($500) up to and including one
thousand five hundred dollars ($1,500), and (C) one hundred fifty
dollars ($150) if the total estimated cost for parts and labor
exceeds one thousand five hundred dollars ($1,500). No administrative
charge may be imposed if the total estimated cost of parts and labor
is one hundred dollars ($100) or less.
(d) (1) The total amount of an authorized driver's liability to
the rental company, if any, for damage occurring during the
authorized driver's operation of the rented vehicle may not exceed
the amount of the renter's liability under subdivision (c).
(2) A rental company may not recover from the renter or other
authorized driver an amount exceeding the renter's liability under
subdivision (c).
(3) A claim against a renter resulting from damage or loss,
excluding loss of use, to a rental vehicle shall be reasonably and
rationally related to the actual loss incurred. A rental company
shall mitigate damages where possible and may not assert or collect
any claim for physical damage which exceeds the actual costs of the
repairs performed or the estimated cost of repairs, if the rental
company chooses not to repair the vehicle, including all discounts
and price reductions. However, if the vehicle is a total loss
vehicle, the claim may not exceed the total loss vehicle value
established in accordance with procedures that are customarily used
by insurance companies when paying claims on total loss vehicles,
less the proceeds from salvaging the vehicle, if those proceeds are
retained by the rental company.
(4) If insurance coverage exists under the renter's applicable
personal or business insurance policy and the coverage is confirmed
during regular business hours, the renter may require that the rental
company submit any claims to the renter's applicable personal or
business insurance carrier. The rental company may not make any
written or oral representations that it will not present claims or
negotiate with the renter's insurance carrier. For purposes of this
paragraph, confirmation of coverage includes telephone confirmation
from insurance company representatives during regular business hours.
Upon request of the renter and after confirmation of coverage, the
amount of claim shall be resolved between the insurance carrier and
the rental company. The renter shall remain responsible for payment
to the rental car company for any loss sustained that the renter's
applicable personal or business insurance policy does not cover.
(5) A rental company may not recover from the renter or other
authorized driver for any item described in subdivision (b) to the
extent the rental company obtains recovery from any other person.
(6) This section applies only to the maximum liability of a renter
or other authorized driver to the rental company resulting from
damage to the rented vehicle and not to the liability of any other
person.
(e) (1) Except as provided in subdivision (f), every damage waiver
shall provide or, if not expressly stated in writing, shall be
deemed to provide that the renter has no liability for any damage,
loss, loss of use, or any cost or expense incident thereto.
(2) Except as provided in subdivision (f), every limitation,
exception, or exclusion to any damage waiver is void and
unenforceable.
(f) A rental company may provide in the rental contract that a
damage waiver does not apply under any of the following
circumstances:
(1) Damage or loss results from an authorized driver's (A)
intentional, willful, wanton, or reckless conduct, (B) operation of
the vehicle under the influence of drugs or alcohol in violation of
Section 23152 of the Vehicle Code, (C) towing or pushing anything, or
(D) operation of the vehicle on an unpaved road if the damage or
loss is a direct result of the road or driving conditions.
(2) Damage or loss occurs while the vehicle is (A) used for
commercial hire, (B) used in connection with conduct that could be
properly charged as a felony, (C) involved in a speed test or contest
or in driver training activity, (D) operated by a person other than
an authorized driver, or (E) operated outside of the United States.
(3) Any authorized driver who has (A) provided fraudulent
information to the rental company or (B) provided false information
and the rental company would not have rented the vehicle if it had
instead received true information.
(g) (1) A rental company that offers or provides a damage waiver
for any consideration in addition to the rental rate shall clearly
and conspicuously disclose the following information in the rental
contract or holder in which the contract is placed and, also, in
signs posted at the place, such as the counter, where the renter
signs the rental contract: (A) the nature of the renter's liability,
e.g., liability for all collision damage regardless of cause, (B) the
extent of the renter's liability, e.g., liability for damage or loss
up to a specified amount, (C) the renter's personal insurance policy
or the credit card used to pay for the car rental transaction may
provide coverage for all or a portion of the renter's potential
liability, (D) the renter should consult with his or her insurer to
determine the scope of insurance coverage, including the amount of
the deductible, if any, for which the renter is obligated, (E) the
renter may purchase an optional damage waiver to cover all liability,
subject to whatever exceptions the rental company expressly lists
that are permitted under subdivision (f), and (F) the range of
charges for the damage waiver.
(2) In addition to the requirements of paragraph (1), a rental
company that offers or provides a damage waiver shall, on that part
of the contract where the renter indicates his or her acceptance or
declination of the damage waiver, indicate that the purchase of the
damage waiver is optional.
(3) The following is an example, for purposes of illustration and
not limitation, of a notice fulfilling the requirements of paragraph
(1) for a rental company that imposes liability on the renter for
collision damage to the full value of the vehicle:
"NOTICE ABOUT YOUR FINANCIAL RESPONSIBILITY AND OPTIONAL DAMAGE
WAIVER
You are responsible for all collision damage to the rented vehicle
even if someone else caused it or the cause is unknown. You are
responsible for the cost of repair up to the value of the vehicle,
and towing, storage, and impound fees.
Your own insurance, or the issuer of the credit card you use to
pay for the car rental transaction, may cover all or part of your
financial responsibility for the rented vehicle. You should check
with your insurance company, or credit card issuer, to find out about
your coverage and the amount of the deductible, if any, for which
you may be liable.
Further, if you use a credit card that provides coverage for your
potential liability, you should check with the issuer to determine if
you must first exhaust the coverage limits of your own insurance
before the credit card coverage applies.
The rental company will not hold you responsible if you buy a
damage waiver. But a damage waiver will not protect you if (list
exceptions)."
(A) When the above notice is printed in the rental contract or
holder in which the contract is placed, the following shall be
printed immediately following the notice:
"The cost of an optional damage waiver is $____ for every (day or
week)."
(B) When the above notice appears on a sign, the following shall
appear immediately adjacent to the notice:
"The cost of an optional damage waiver is $____ to $____ for every
(day or week), depending upon the vehicle rented."
(h) Notwithstanding any other provision of law, a rental company
may sell a damage waiver subject to the following rate limitations
for each full or partial 24-hour rental day for the damage waiver:
(1) For rental vehicles that the rental company designates as an
"economy car," "subcompact car," "compact car," or any other term
having similar meaning when offered for rental, or any other vehicle
having a manufacturer's suggested retail price of nineteen thousand
dollars ($19,000) or less, the rate may not exceed nine dollars ($9).
(2) For rental vehicles that have a manufacturer's suggested
retail price from nineteen thousand one dollars ($19,001) to
thirty-four thousand nine hundred ninety-nine dollars ($34,999),
inclusive, and that are also either vehicles of next year's model, or
not older than the previous year's model, the rate may not exceed
fifteen dollars ($15). For those rental vehicles older than the
previous year's model, the rate may not exceed nine dollars ($9).
(i) On or after January 1, 2003, the manufacturer's suggested
retail prices described in subdivision (h) shall be adjusted annually
to reflect changes from the previous year in the Consumer Price
Index. For the purposes of this section, "Consumer Price Index" means
the United States Consumer Price Index for All Urban Consumers, for
all items.
(j) A rental company that disseminates in this state an
advertisement containing a rental rate shall include in that
advertisement a clearly readable statement of the charge for a damage
waiver and a statement that a damage waiver is optional.
(k) (1) A rental company may not require the purchase of a damage
waiver, optional insurance, or any other optional good or service.
(2) A rental company may not engage in any unfair, deceptive, or
coercive conduct to induce a renter to purchase the damage waiver,
optional insurance, or any other optional good or service, including
conduct such as, but not limited to, refusing to honor the renter's
reservation, limiting the availability of vehicles, requiring a
deposit, or debiting or blocking the renter's credit card account for
a sum equivalent to a deposit if the renter declines to purchase the
damage waiver, optional insurance, or any other optional good or
service.
(l) (1) In the absence of express permission granted by the renter
subsequent to damage to, or loss of, the vehicle, a rental company
may not seek to recover any portion of any claim arising out of
damage to, or loss of, the rented vehicle by processing a credit card
charge or causing any debit or block to be placed on the renter's
credit card account.
(2) A rental company may not engage in any unfair, deceptive, or
coercive tactics in attempting to recover or in recovering on any
claim arising out of damage to, or loss of, the rented vehicle.
(m) (1) A customer facility charge may be collected by a rental
company under the following circumstances:
(A) Collection of the fee by the rental company is required by an
airport operated by a city, a county, a city and county, a joint
powers authority, or a special district.
(B) The fee is calculated on a per-contract basis.
(C) The fee is a user fee, not a tax imposed upon real property or
an incidence of property ownership under Article XIII D of the
California Constitution.
(D) Except as otherwise provided in subparagraph (E), the fee
shall be ten dollars ($10) per contract.
(E) If the fee imposed by the airport is for both a consolidated
rental car facility and a common-use transportation system, the fee
collected from customers of on-airport rental car companies shall be
ten dollars ($10), but the fee imposed on customers of off-airport
rental car companies who are transported on the common-use
transportation system is proportionate to the costs of the common-use
transportation system only. The fee is uniformly applied to each
class of on-airport or off-airport customers, provided the airport
requires off-airport customers to use the common-use transportation
system.
(F) Revenues collected from the fee do not exceed the reasonable
costs of financing, designing, constructing, or operating the
facility or services and may not be used for any other purpose.
(G) The fee is separately identified on the rental agreement.
(H) This paragraph does not apply to airports whose fees are
governed by Section 1936.5 of the Civil Code, Section 50474.1 of the
Government Code, or Section 57.5 of the San Diego Unified Port
District Act.
(2) Notwithstanding any other provision of law, including, but not
limited to, Part 1 (commencing with Section 6001) to Part 1.7
(commencing with Section 7280), inclusive, of Division 2 of the
Revenue and Taxation Code, the fees collected pursuant to this
section, or any other law whereby a local agency operating an airport
requires a rental car company to collect a facility financing fee
from its customers, are not subject to sales, use, or transaction
taxes.
(n) (1) A rental company shall only advertise, quote, and charge a
rental rate that includes the entire amount except taxes, a customer
facility charge, if any, and a mileage charge, if any, which a
renter must pay to hire or lease the vehicle for the period of time
to which the rental rate applies. A rental company may not charge in
addition to the rental rate, taxes, a customer facility charge, if
any, and a mileage charge, if any, any fee which must be paid by the
renter as a condition of hiring or leasing the vehicle, such as, but
not limited to, required fuel or airport surcharges other than
customer facility charges, nor any fee for transporting the renter to
the location where the rented vehicle will be delivered to the
renter.
(2) In addition to the rental rate, taxes, customer facility
charges, if any, and mileage charges, if any, a rental company may
charge for an item or service provided in connection with a
particular rental transaction if the renter could have avoided
incurring the charge by choosing not to obtain or utilize the
optional item or service. Items and services for which the rental
company may impose an additional charge include, but are not limited
to, optional insurance and accessories requested by the renter,
service charges incident to the renter's optional return of the
vehicle to a location other than the location where the vehicle was
hired or leased, and charges for refueling the vehicle at the
conclusion of the rental transaction in the event the renter did not
return the vehicle with as much fuel as was in the fuel tank at the
beginning of the rental. A rental company also may impose an
additional charge based on reasonable age criteria established by the
rental company.
(3) A rental company may not charge any fee for authorized drivers
in addition to the rental charge for an individual renter.
(4) If a rental company states a rental rate in print
advertisement or in a telephonic, in-person, or computer-transmitted
quotation, the rental company shall clearly disclose in that
advertisement or quotation the terms of any mileage conditions
relating to the advertised or quoted rental rate, including, but not
limited to, to the extent applicable, the amount of mileage and gas
charges, the number of miles for which no charges will be imposed,
and a description of geographic driving limitations within the United
States and Canada.
(5) (A) When a rental rate is stated in an advertisement,
quotation, or reservation in connection with a car rental at an
airport where a customer facility charge is imposed, the rental
company shall clearly disclose the existence and amount of the
customer facility charge. For the purposes of this subparagraph,
advertisements include radio, television, other electronic media, and
print advertisements. For purposes of this subparagraph, quotations
and reservations include those that are telephonic, in-person, and
computer-transmitted. If the rate advertisement is intended to
include transactions at more than one airport imposing a customer
facility charge, a range of fees may be stated in the advertisement.
However, all rate advertisements that include car rentals at airport
destinations shall clearly and conspicuously include a toll-free
telephone number whereby a customer can be told the specific amount
of the customer facility charge to which the customer will be
obligated.
(B) If any person or entity other than a rental car company,
including a passenger carrier or a seller of travel services,
advertises or quotes a rate for a car rental at an airport where a
customer facility charge is imposed, that person or entity shall, if
they are provided with information about the existence and amount of
the fee, to the extent not specifically prohibited by federal law,
clearly disclose the existence and amount of the fee in any
telephonic, in-person, or computer-transmitted quotation at the time
of making an initial quotation of a rental rate and at the time of
making a reservation of a rental car. If a rental car company
provides the person or entity with rate and customer facility charge
information, the rental car company is not responsible for the
failure of that person or entity to comply with this subparagraph
when quoting or confirming a rate to a third person or entity.
(6) If a rental company delivers a vehicle to a renter at a
location other than the location where the rental company normally
carries on its business, the rental company may not charge the renter
any amount for the rental for the period before the delivery of the
vehicle. If a rental company picks up a rented vehicle from a renter
at a location other than the location where the rental company
normally carries on its business, the rental company may not charge
the renter any amount for the rental for the period after the renter
notifies the rental company to pick up the vehicle.
(o) A rental company may not use, access, or obtain any
information relating to the renter's use of the rental vehicle that
was obtained using electronic surveillance technology, except in the
following circumstances:
(1) (A) When the equipment is used by the rental company only for
the purpose of locating a stolen, abandoned, or missing rental
vehicle after one of the following:
(i) The renter or law enforcement has informed the rental company
that the vehicle has been stolen, abandoned, or missing.
(ii) The rental vehicle has not been returned following one week
after the contracted return date, or by one week following the end of
an extension of that return date.
(iii) The rental company discovers the rental vehicle has been
stolen or abandoned, and, if stolen, it shall report the vehicle
stolen to law enforcement by filing a stolen vehicle report, unless
law enforcement has already informed the rental company that the
vehicle has been stolen, abandoned, or is missing.
(B) If electronic surveillance technology is activated pursuant to
subparagraph (A) of paragraph (1), a rental company shall maintain a
record, in either electronic or written form, of information
relevant to the activation of that technology. That information shall
include the rental agreement, including the return date, and the
date and time the electronic surveillance technology was activated.
The record shall also include, if relevant, a record of any written
or other communication with the renter, including communications
regarding extensions of the rental, police reports or other written
communication with law enforcement officials. The record shall be
maintained for a period of at least 12 months from the time the
record is created and shall be made available upon the renter's
request. The rental company shall maintain and furnish any
explanatory codes necessary to read the record. A rental company
shall not be required to maintain a record if electronic surveillance
technology is activated to recover a rental vehicle that is stolen
or missing at a time other than during a rental period.
(2) In response to a specific request from law enforcement
pursuant to a subpoena or search warrant.
(3) Nothing in this subdivision prohibits a rental company from
equipping rental vehicles with GPS-based technology that provides
navigation assistance to the occupants of the rental vehicle, if the
rental company does not use, access, or obtain any information
relating to the renter's use of the rental vehicle that was obtained
using that technology, except for the purposes of discovering or
repairing a defect in the technology and the information may then be
used only for that purpose.
(4) Nothing in this subdivision prohibits a rental company from
equipping rental vehicles with electronic surveillance technology
that allows for the remote locking or unlocking of the vehicle at the
request of the renter, if the rental company does not use, access,
or obtain any information relating to the renter's use of the rental
vehicle that was obtained using that technology except as necessary
to lock or unlock the vehicle.
(5) Nothing in this subdivision prohibits a rental company from
equipping rental vehicles with electronic surveillance technology
that allows the company to provide roadside assistance, such as
towing or flat tire or fuel services, at the request of the renter,
if the rental company does not use, access, or obtain any information
relating to the renter's use of the rental vehicle that was obtained
using that technology, except as necessary to provide the requested
roadside assistance.
(6) Nothing in this subdivision prohibits a rental company from
obtaining, accessing, or using information from electronic
surveillance technology for the sole purpose of determining the date
and time the vehicle is returned to the rental company, and the total
mileage driven and the vehicle fuel level of the returned vehicle.
This paragraph, however, shall apply only after the renter has
returned the vehicle to the rental company, and the information shall
only be used for the purpose described in this paragraph.
(p) A rental company may not use electronic surveillance
technology to track a renter in order to impose fines or surcharges
relating to the renter's use of the rental vehicle.
(q) A renter may bring an action against a rental company for the
recovery of damages and appropriate equitable relief for a violation
of this section. The prevailing party shall be entitled to recover
reasonable attorney's fees and costs.
(r) A rental company that brings an action against a renter for
loss due to theft of the vehicle shall bring the action in the county
in which the renter resides or, if the renter is not a resident of
this state, in the jurisdiction in which the renter resides.
(s) Any waiver of any of the provisions of this section is void
and unenforceable as contrary to public policy.
SEC. 19. Section 995.640 of the Code of Civil Procedure is amended
to read:
995.640.
The county clerk of any county shall, upon request of any person,
do any of the following:
(a) Issue a certificate stating whether the certificate of
authority of an admitted surety insurer issued by the Insurance
Commissioner authorizing the insurer to transact surety insurance,
has been surrendered, revoked, canceled, annulled, or suspended, and
in the event that it has, whether renewed authority has been granted.
The county clerk in issuing the certificate shall rely solely upon
the information furnished by the Insurance Commissioner pursuant to
Article 2 (commencing with Section 12070) of Chapter 1 of Part 4 of
Division 2 of the Insurance Code.
(b) Issue a certificate stating whether a copy of the transcript
or record of the unrevoked appointment, power of attorney, bylaws, or
other instrument, duly certified by the proper authority and
attested by the seal of an admitted surety insurer entitling or
authorizing the person who executed a bond to do so for and on behalf
of the insurer, is filed in the office of the clerk.
SEC. 20. Section 1985.6 of the Code of Civil Procedure is amended
to read:
1985.6.
(a) For purposes of this section, the following terms have
the following meanings:
(1) "Deposition officer" means a person who meets the
qualifications specified in paragraph (3) of subdivision (d) of
Section 2020.
(2) "Employee" means any individual who is or has been employed by
a witness subject to a subpoena duces tecum. "Employee" also means
any individual who is or has been represented by a labor organization
that is a witness subject to a subpoena duces tecum.
(3) "Employment records" means the original or any copy of books,
documents, other writings, or electronic data pertaining to the
employment of any employee maintained by the current or former
employer of the employee, or by any labor organization that has
represented or currently represents the employee.
(4) "Labor organization" has the meaning set forth in Section 1117
of the Labor Code.
(5) "Subpoenaing party" means the person or persons causing a
subpoena duces tecum to be issued or served in connection with any
civil action or proceeding, but does not include the state or local
agencies described in Section 7465 of the Government Code, or any
entity provided for under Article VI of the California Constitution
in any proceeding maintained before an adjudicative body of that
entity pursuant to Chapter 4 (commencing with Section 6000) of
Division 3 of the Business and Professions Code.
(b) Prior to the date called for in the subpoena duces tecum of
the production of employment records, the subpoenaing party shall
serve or cause to be served on the employee whose records are being
sought a copy of: the subpoena duces tecum; the affidavit supporting
the issuance of the subpoena, if any; the notice described in
subdivision (e); and proof of service as provided in paragraph (1) of
subdivision (c). This service shall be made as follows:
(1) To the employee personally, or at his or her last known
address, or in accordance with Chapter 5 (commencing with Section
1010) of Title 14 of Part 3, or, if he or she is a party, to his or
her attorney of record. If the employee is a minor, service shall be
made on the minor's parent, guardian, conservator, or similar
fiduciary, or if one of them cannot be located with reasonable
diligence, then service shall be made on any person having the care
or control of the minor, or with whom the minor resides, and on the
minor if the minor is at least 12 years of age.
(2) Not less than 10 days prior to the date for production
specified in the subpoena duces tecum, plus the additional time
provided by Section 1013 if service is by mail.
(3) At least five days prior to service upon the custodian of the
employment records, plus the additional time provided by Section 1013
if service is by mail.
(c) Prior to the production of the records, the subpoenaing party
shall either:
(1) Serve or cause to be served upon the witness a proof of
personal service or of service by mail attesting to compliance with
subdivision (b).
(2) Furnish the witness a written authorization to release the
records signed by the employee or by his or her attorney of record.
The witness may presume that the attorney purporting to sign the
authorization on behalf of the employee acted with the consent of the
employee, and that any objection to the release of records is
waived.
(d) A subpoena duces tecum for the production of employment
records shall be served in sufficient time to allow the witness a
reasonable time, as provided in paragraph (1) of subdivision (d) of
Section 2020, to locate and produce the records or copies thereof.
(e) Every copy of the subpoena duces tecum and affidavit served on
an employee or his or her attorney in accordance with subdivision
(b) shall be accompanied by a notice, in a typeface designed to call
attention to the notice, indicating that (1) employment records about
the employee are being sought from the witness named on the
subpoena; (2) the employment records may be protected by a right of
privacy; (3) if the employee objects to the witness furnishing the
records to the party seeking the records, the employee shall file
papers with the court prior to the date specified for production on
the subpoena; and (4) if the subpoenaing party does not agree in
writing to cancel or limit the subpoena, an attorney should be
consulted about the employee's interest in protecting his or her
rights of privacy. If a notice of taking of deposition is also
served, that other notice may be set forth in a single document with
the notice required by this subdivision.
(f) Any employee whose employment records are sought by a subpoena
duces tecum may, prior to the date for production, bring a motion
under Section 1987.1 to quash or modify the subpoena duces tecum.
Notice of the bringing of that motion shall be given to the witness
and the deposition officer at least five days prior to production.
The failure to provide notice to the deposition officer does not
invalidate the motion to quash or modify the subpoena duces tecum but
may be raised by the deposition officer as an affirmative defense in
any action for liability for improper release of records.
Any nonparty employee whose employment records are sought by a
subpoena duces tecum may, prior to the date of production, serve on
the subpoenaing party, the deposition officer, and the witness a
written objection that cites the specific grounds on which production
of the employment records should be prohibited.
No witness or deposition officer shall be required to produce
employment records after receipt of notice that the motion has been
brought by an employee, or after receipt of a written objection from
a nonparty employee, except upon order of the court in which the
action is pending or by agreement of the parties, witnesses, and
employees affected.
The party requesting an employee's employment records may bring a
motion under subdivision (c) of Section 1987 to enforce the subpoena
within 20 days of service of the written objection. The motion shall
be accompanied by a declaration showing a reasonable and good faith
attempt at informal resolution of the dispute between the party
requesting the employment records and the employee or the employee's
attorney.
(g) Upon good cause shown and provided that the rights of
witnesses and employees are preserved, a subpoenaing party shall be
entitled to obtain an order shortening the time for service of a
subpoena duces tecum or waiving the requirements of subdivision (b)
where due diligence by the subpoenaing party has been shown.
(h) This section may not be construed to apply to any subpoena
duces tecum that does not request the records of any particular
employee or employees and that requires a custodian of records to
delete all information which would in any way identify any employee
whose records are to be produced.
(i) This section does not apply to proceedings conducted under
Division 1 (commencing with Section 50), Division 4 (commencing with
Section 3200), Division 4.5 (commencing with Section 6100), or
Division 4.7 (commencing with Section 6200) of the Labor Code.
(j) Failure to comply with this section shall be sufficient basis
for the witness to refuse to produce the employment records sought by
subpoena duces tecum.
SEC. 21. Section 2025.480 of the Code of Civil Procedure is
amended to read:
2025.480.
(a) If a deponent fails to answer any question or to produce any
document or tangible thing under the deponent's control that is
specified in the deposition notice or a deposition subpoena, the
party seeking discovery may move the court for an order compelling
that answer or production.
(b) This motion shall be made no later than 60 days after the
completion of the record of the deposition, and shall be accompanied
by a meet and confer declaration under Section 2016.040.
(c) Notice of this motion shall be given to all parties and to the
deponent either orally at the examination, or by subsequent service
in writing. If the notice of the motion is given orally, the
deposition officer shall direct the deponent to attend a session of
the court at the time specified in the notice.
(d) Not less than five days prior to the hearing on this motion,
the moving party shall lodge with the court a certified copy of any
parts of the stenographic transcript of the deposition that are
relevant to the motion. If a deposition is recorded by audio or video
technology, the moving party is required to lodge a certified copy
of a transcript of any parts of the deposition that are relevant to
the motion.
(e) If the court determines that the answer or production sought
is subject to discovery, it shall order that the answer be given or
the production be made on the resumption of the deposition.
(f) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel an
answer or production, unless it finds that the one subject to the
sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
(g) If a deponent fails to obey an order entered under this
section, the failure may be considered a contempt of court. In
addition, if the disobedient deponent is a party to the action or an
officer, director, managing agent, or employee of a party, the court
may make those orders that are just against the disobedient party, or
against the party with whom the disobedient deponent is affiliated,
including the imposition of an issue sanction, an evidence sanction,
or a terminating sanction under Chapter 7 (commencing with Section
2023.010). In lieu of or in addition to this sanction, the court may
impose a monetary sanction under Chapter 7 (commencing with Section
2023.010) against that party deponent or against any party with whom
the deponent is affiliated.
SEC. 22. Section 2030.050 of the Code of Civil Procedure is
amended to read:
2030.050.
Any party who is propounding or has propounded more than 35
specially prepared interrogatories to any other party shall attach to
each set of those interrogatories a declaration containing
substantially the following:
DECLARATION FOR ADDITIONAL DISCOVERY
I, __________, declare: 1. I am (a party to this action or
proceeding appearing in propria persona) (presently the attorney for
__________, a party to this action or proceeding). 2. I am
propounding to __________ the attached set of interrogatories. 3.
This set of interrogatories will cause the total number of specially
prepared interrogatories propounded to the party to whom they are
directed to exceed the number of specially prepared interrogatories
permitted by Section 2030.030 of the Code of Civil Procedure. 4. I
have previously propounded a total of __________ interrogatories to
this party, of which __________ interrogatories were not official
form interrogatories. 5. This set of interrogatories contains a
total of __________ specially prepared interrogatories. 6. I am
familiar with the issues and the previous discovery conducted by all
of the parties in the case. 7. I have personally examined each of
the questions in this set of interrogatories. 8. This number of
questions is warranted under Section 2030.040 of the Code of Civil
Procedure because __________. (Here state each factor described in
Section 2030.040 that is relied on, as well as the reasons why any
factor relied on is applicable to the instant lawsuit.) 9. None of
the questions in this set of interrogatories is being propounded for
any improper purpose, such as to harass the party, or the attorney
for the party, to whom it is directed, or to cause unnecessary delay
or needless increase in the cost of litigation. I declare under
penalty of perjury under the laws of California that the foregoing is
true and correct, and that this declaration was executed on
__________.
_____________________________________________
(Signature)
Attorney for ________________________________
SEC. 23. Section 2031.300 of the Code of Civil Procedure is
amended to read:
2031.300.
If a party to whom an inspection demand is directed fails to serve
a timely response to it, the following rules apply:
(a) The party to whom the inspection demand is directed waives any
objection to the demand, including one based on privilege or on the
protection for work product under Chapter 4 (commencing with Section
2018.010). The court, on motion, may relieve that party from this
waiver on its determination that both of the following conditions are
satisfied:
(1) The party has subsequently served a response that is in
substantial compliance with Sections 2031.210, 2031.220, 2031.230,
2031.240, and 2031.280.
(2) The party's failure to serve a timely response was the result
of mistake, inadvertence, or excusable neglect.
(b) The party making the demand may move for an order compelling
response to the inspection demand.
(c) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel a
response to an inspection demand, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust. If a
party then fails to obey the order compelling a response, the court
may make those orders that are just, including the imposition of an
issue sanction, an evidence sanction, or a terminating sanction under
Chapter 7 (commencing with Section 2023.010). In lieu of or in
addition to this sanction, the court may impose a monetary sanction
under Chapter 7 (commencing with Section 2023.010).
SEC. 24. Section 2033.220 of the Code of Civil Procedure is
amended to read:
2033.220.
(a) Each answer in a response to requests for admission shall be
as complete and straightforward as the information reasonably
available to the responding party permits.
(b) Each answer shall:
(1) Admit so much of the matter involved in the request as is
true, either as expressed in the request itself or as reasonably and
clearly qualified by the responding party.
(2) Deny so much of the matter involved in the request as is
untrue.
(3) Specify so much of the matter involved in the request as to
the truth of which the responding party lacks sufficient information
or knowledge.
(c) If a responding party gives lack of information or knowledge
as a reason for a failure to admit all or part of a request for
admission, that party shall state in the answer that a reasonable
inquiry concerning the matter in the particular request has been
made, and that the information known or readily obtainable is
insufficient to enable that party to admit the matter.
SEC. 25. Section 31109.1 of the Corporations Code is amended to
read:
31109.1.
(a) There shall be exempted from the provisions of Chapter 2
(commencing with Section 31110) the offer and sale of a franchise
registered under Section 31111, 31121, or 31123 on terms different
from the terms of the offer registered thereunder if all of the
following requirements are met:
(1) The initial offer is the offer registered under Section 31111,
31121, or 31123.
(2) The prospective franchisee receives all of the following in a
separate written appendix to the offering circular:
(A) A summary description of each material negotiated term that
was negotiated by the franchisor for a California franchise during
the 12-month period ending in the calendar month immediately
preceding the month in which the negotiated offer or sale is made
under this section.
(B) A statement indicating that copies of the negotiated terms are
available upon written request.
(C) The name, telephone number, and address of the representative
of the franchisor to whom requests for a copy of the negotiated terms
may be obtained.
(3) The franchisor certifies or declares in an appendix to its
application for renewal that it has complied with all of the
requirements of this section, in the event this exemption is claimed.
(4) The negotiated terms, on the whole, confer additional benefits
on the franchisee.
(b) The franchisor shall provide a copy of the negotiated terms
described in subdivision (a) to the prospective franchisee within
five business days following the request of the franchisee.
(c) The franchisor shall maintain copies of all material
negotiated terms for which this exemption is claimed for a period of
five years from the effective date of the first agreement containing
the relevant negotiated term. Upon the request of the commissioner,
the franchisor shall make the copies available to the commissioner
for review. For purposes of this section, the commissioner may
prescribe by rule or order the format and content of the summary
description of the negotiated terms required by subparagraph (A) of
paragraph (2) of subdivision (a).
(d) For purposes of this section, "material" means that a
reasonable franchisee would view the terms as important in
negotiating the franchise.
SEC. 26. Section 1240 of the Education Code is amended to read:
1240.
The county superintendent of schools shall do all of the
following:
(a) Superintend the schools of his or her county.
(b) Maintain responsibility for the fiscal oversight of each
school district in his or her county pursuant to the authority
granted by this code.
(c) (1) Visit and examine each school in his or her county at
reasonable intervals to observe its operation and to learn of its
problems. He or she may annually present a report of the state of the
schools in his or her county, and of his or her office, including,
but not limited to, his or her observations while visiting the
schools, to the board of education and the board of supervisors of
his or her county.
(2) (A) To the extent that funds are appropriated for purposes of
this paragraph, the county superintendent, or his or her designee,
shall annually present a report to the governing board of each school
district under his or her jurisdiction, the county board of
education of his or her county, and the board of supervisors of his
or her county describing the state of the schools in the county or of
his or her office that are ranked in deciles 1 to 3, inclusive, of
the 2003 base Academic Performance Index, as defined in subdivision
(b) of Section 17592.70, and shall include, among other things, his
or her observations while visiting the schools.
(B) The county superintendent of the Counties of Alpine, Amador,
Del Norte, Mariposa, Plumas, and Sierra, and the City and County of
San Francisco shall contract with another county office of education
or an independent auditor to conduct the required visits and make all
reports required by this paragraph.
(C) The results of the visits shall be reported to the governing
board of the school district on a quarterly basis at a regularly
scheduled meeting held in accordance with public notification
requirements.
(D) The visits made pursuant to this paragraph shall be conducted
at least annually and shall meet the following criteria:
(i) Not disrupt the operation of the school.
(ii) Be performed by individuals who meet the requirements of
Section 45125.1.
(iii) Consist of not less than 25 percent unannounced visits in
each county. During unannounced visits in each county, the county
superintendent shall not demand access to documents or specific
school personnel. Unannounced visits shall only be used to observe
the condition of school repair and maintenance and the sufficiency of
instructional materials, as defined by Section 60119.
(E) The priority objective of the visits made pursuant to this
paragraph shall be to determine the status of all of the following
circumstances:
(i) Sufficient textbooks, as defined in Section 60119 and as
specified in subdivision (i).
(ii) The condition of a facility that poses an emergency or urgent
threat to the health or safety of pupils or staff as defined in
district policy, or as defined by paragraph (1) of subdivision (c) of
Section 17592.72.
(iii) The accuracy of data reported on the school accountability
report card with respect to the availability of sufficient textbooks
and instructional materials as defined by Section 60119 and the
safety, cleanliness, and adequacy of school facilities, including
good repair as required by Sections 17014, 17032.5, 17070.75, and
17089.
(d) Distribute all laws, reports, circulars, instructions, and
blanks that he or she may receive for the use of the school officers.
(e) Annually present a report to the governing board of the school
district and the Superintendent of Public Instruction regarding the
fiscal solvency of any school district with a disapproved budget,
qualified interim certification, or a negative interim certification,
or that is determined at any time to be in a position of fiscal
uncertainty pursuant to Section 42127.6.
(f) Keep in his or her office the reports of the Superintendent of
Public Instruction.
(g) Keep a record of his or her official acts, and of all the
proceedings of the county board of education, including a record of
the standing, in each study, of all applicants for certificates who
have been examined, which shall be open to the inspection of any
applicant or his or her authorized agent.
(h) Enforce the course of study.
(i) (1) Enforce the use of state textbooks and instructional
materials and of high school textbooks and instructional materials
regularly adopted by the proper authority.
(2) For purposes of this subdivision, "sufficient textbooks or
instructional materials" has the same meaning as in subdivision (c)
of Section 60119.
(3) If a school is ranked in any of deciles 1 to 3, inclusive, of
the 2003 base Academic Performance Index, as defined in subdivision
(b) of Section 17592.70, and is not currently under review through a
state or federal intervention program, the county superintendent
shall specifically review that school at least annually as a priority
school. A review conducted for purposes of this paragraph shall be
conducted within the first four weeks of the school year. For the
2004-05 fiscal year only, the county superintendent shall make a
diligent effort to conduct a visit to each school pursuant to this
paragraph within 120 days of receipt of funds for this purpose.
(4) If the county superintendent determines that a school does not
have sufficient textbooks or instructional materials in accordance
with subparagraph (A) of paragraph (1) of subdivision (a) of Section
60119 and as defined by subdivision (c) of Section 60119, the county
superintendent shall do all of the following:
(A) Prepare a report that specifically identifies and documents
the areas or instances of noncompliance.
(B) Provide, within five business days of the review, a copy of
the report to the school district, as provided in subdivision (c),
and forward the report to the Superintendent of Public Instruction.
(C) Provide the school district with the opportunity to remedy the
deficiency. The county superintendent shall ensure remediation of
the deficiency no later than the second month of the school term.
(D) If the deficiency is not remedied as required pursuant to
subparagraph (C), the county superintendent shall request the
department, with approval by the State Board of Education, to
purchase the textbooks or instructional materials necessary to comply
with the sufficiency requirement of this subdivision. If the state
board approves a recommendation from the department to purchase
textbooks or instructional materials for the school district, the
board shall issue a public statement at a regularly scheduled meeting
indicating that the district superintendent and the governing board
of the school district failed to provide pupils with sufficient
textbooks or instructional materials as required by this subdivision.
Before purchasing the textbooks or instructional materials, the
department shall consult with the district to determine which
textbooks or instructional materials to purchase. All purchases of
textbooks or instructional materials shall comply with Chapter 3.25
(commencing with Section 60420) of Part 33. The amount of funds
necessary to purchase the textbooks and materials is a loan to the
school district receiving the textbooks or instructional materials.
Unless the school district repays the amount owed based upon an
agreed-upon repayment schedule with the Superintendent of Public
Instruction, the Superintendent of Public Instruction shall notify
the Controller and the Controller shall deduct an amount equal to the
total amount used to purchase the textbooks and materials from the
next principal apportionment of the district or from another
apportionment of state funds.
(j) Preserve carefully all reports of school officers and
teachers.
(k) Deliver to his or her successor, at the close of his or her
official term, all records, books, documents, and papers belonging to
the office, taking a receipt for them, which shall be filed with the
department.
(l) (1) Submit two reports during the fiscal year to the county
board of education in accordance with the following:
(A) The first report shall cover the financial and budgetary
status of the county office of education for the period ending
October 31. The second report shall cover the period ending January
31. Both reports shall be reviewed by the county board of education
and approved by the county superintendent of schools no later than 45
days after the close of the period being reported.
(B) As part of each report, the county superintendent shall
certify in writing whether or not the county office of education is
able to meet its financial obligations for the remainder of the
fiscal year and, based on current forecasts, for two subsequent
fiscal years. The certifications shall be classified as positive,
qualified, or negative, pursuant to standards prescribed by the
Superintendent of Public Instruction, for the purposes of determining
subsequent state agency actions pursuant to Section 1240.1. For
purposes of this subdivision, a negative certification shall be
assigned to any county office of education that, based upon current
projections, will be unable to meet its financial obligations for the
remainder of the fiscal year or for the subsequent fiscal year. A
qualified certification shall be assigned to any county office of
education that may not meet its financial obligations for the current
fiscal year or two subsequent
fiscal years. A positive certification shall be assigned to
any county office of education that will meet its financial
obligations for the current fiscal year and subsequent two fiscal
years. In accordance with those standards, the Superintendent of
Public Instruction may reclassify any certification. If a county
office of education receives a negative certification, the
Superintendent of Public Instruction, or his or her designee, may
exercise the authority set forth in subdivision (c) of Section 1630.
Copies of each certification, and of the report containing that
certification, shall be sent to the Superintendent of Public
Instruction at the time the certification is submitted to the county
board of education. Copies of each qualified or negative
certification and the report containing that certification shall be
sent to the Controller at the time the certification is submitted to
the county board of education.
(2) All reports and certifications required under this subdivision
shall be in a format or on forms prescribed by the Superintendent of
Public Instruction, and shall be based on standards and criteria for
fiscal stability adopted by the State Board of Education pursuant to
Section 33127. The reports and supporting data shall be made
available by the county superintendent of schools to any interested
party upon request.
(3) This subdivision does not preclude the submission of
additional budgetary or financial reports by the county
superintendent to the county board of education or to the
Superintendent of Public Instruction.
(4) The county superintendent of schools is not responsible for
the fiscal oversight of the community colleges in the county;
however, he or she may perform financial services on behalf of those
community colleges.
(m) If requested, act as agent for the purchase of supplies for
the city and high school districts of his or her county.
(n) For purposes of Section 44421.5, report to the Commission on
Teacher Credentialing the identity of any certificated person who
knowingly and willingly reports false fiscal expenditure data
relative to the conduct of any educational program. This requirement
applies only if, in the course of his or her normal duties, the
county superintendent of schools discovers information that gives him
or her reasonable cause to believe that false fiscal expenditure
data relative to the conduct of any educational program has been
reported.
SEC. 27. Section 17212.2 of the Education Code is amended to read:
17212.2.
(a) The governing board of a school district may make a written
request upon a person, corporation, public utility, local publicly
owned utility, or governmental agency for information necessary or
useful to assess and determine the safety of a proposed schoolsite or
an addition to an existing schoolsite, pursuant to Section 17251 and
this chapter, including pipelines, electric transmission and
distribution lines, railroads, and storage tanks. The written request
shall identify the physical location of the schoolsite for which
information is sought, describe the information sought, and contain a
statement as to why the information is needed or useful. Information
requested may include all of the following:
(1) Railroad operations involving hazardous or toxic materials, as
reported to a governmental agency; frequency, speed, and schedule of
railroad traffic; grade, curves, and condition of railroad tracks;
and railroad accident occurrence.
(2) Whether there are existing pipelines, planned pipelines, or
easements for pipelines on, or in proximity to, as specified pursuant
to regulations adopted pursuant to Section 17251, the schoolsite,
including the location of the pipeline, the age of the pipeline, the
pipeline material, the class of pipeline, the diameter of the
pipeline, the depth at which the pipeline is buried, the wall
thickness of the pipeline, the product or products transported by the
pipeline, the operating pressure of the pipeline, the history of
spills or leaks of material being transported by the pipeline, as
reported to a governmental agency, and the location of the shutoff
valves for the pipeline that are capable of preventing or halting the
transport of product or products to the schoolsite.
(3) Whether there are easements for planned or existing lines for
the transmission or distribution of electricity, electrical
transformers, or electrical substations on or in proximity to, as
specified pursuant to regulations adopted pursuant to Section 17251,
the schoolsite, the location of easements for, planned, or existing
lines, transformers, or substations, the voltages currently handled
or planned to be handled by the line, transformer, or substation, the
ground clearance, if applicable, of a line, transformer, or
substation, and the depth of burial, if applicable, of the line,
transformer, or substation as specified by the Public Utilities
Commission.
(4) The location, age, construction type, safety record, and
product stored in a storage tank.
(b) A person, corporation, public utility, local publicly owned
utility, or governmental agency receiving a written request for
information pursuant to this section shall provide a written response
within 30 calendar days of receipt of the request, that provides the
requested information, identifies available public information or an
available report to a governmental agency, or provides written
justification why the requested information is not being provided. A
claim that the requested information is proprietary or confidential
is a legitimate justification for the requested information to not be
provided. The governing board of a school district may grant
additional time to respond to a request for information pursuant to
this section.
(c) A school district may file a complaint with the appropriate
regulatory agency or legislative body for a violation of the
requirements of this section. The regulatory agency or legislative
body may appoint a representative to work toward informally resolving
the complaint.
SEC. 28. Section 17463.6 of the Education Code, as added by
Section 2 of Chapter 838 of the Statutes of 2004, is amended and
renumbered to read:
17463.5.
(a) Notwithstanding any other law, the Santa Clara Unified School
District may use the proceeds from the sale of surplus real property,
together with any personal property located thereon, if purchased
entirely with local funds and may deposit the proceeds thereof into
the general fund of the school district or county office of education
for any one-time general fund purpose. If the purchase of the
property was made using the proceeds of a general obligation bond act
or revenue derived from developer fees, the amount of the proceeds
of the transaction that may be deposited into the general fund of the
school district or county office of education may not exceed the
percentage computed by the difference between the purchase price of
the property and the proceeds from the transaction, divided by the
amount of the proceeds of the transaction. For the purposes of this
section, proceeds of the transaction means either of the following,
as appropriate:
(1) The amount realized from the sale of property minus reasonable
expenses related to the sale.
(2) For any transaction that did not result in a lump-sum payment
of the proceeds of the transaction, the proceeds of the transaction
shall be calculated as the net present value of the transaction.
(b) The State Allocation Board shall reduce an apportionment of
hardship assistance awarded to the Santa Clara Unified School
District pursuant to Article 8 (commencing with Section 17075.10) by
an amount equal to the amount of the sale of surplus real property
used for a one-time expenditure of the school district pursuant to
this section.
(c) If the Santa Clara Unified School District exercises the
authority granted pursuant to this section, the district is
ineligible for hardship funding from the State School Deferred
Maintenance Fund under Section 17587 for five years after the date of
sale.
(d) Before the Santa Clara Unified School District exercises the
authority granted pursuant to this section, the governing board of
the school district shall first submit to the State Allocation Board
documents certifying the following:
(1) The district has no major deferred maintenance requirements
not covered by existing capital outlay resources.
(2) The sale of real property pursuant to this section does not
violate any provisions of a local bond act.
(3) The real property is not suitable to meet any projected school
construction need for the next 10 years.
(e) Before the Santa Clara Unified School District exercises the
authority granted pursuant to this section, the governing board of
the school district shall at a regularly scheduled meeting present a
plan for expending one-time resources pursuant to this section. The
plan shall identify the source and use of the funds and describe the
reasons why the expenditure will not result in ongoing fiscal
obligations for the district.
(f) This section is repealed on January 1, 2007, unless a later
enacted statute that becomes operative on or before January 1, 2007,
deletes or extends the date on which it is repealed.
SEC. 29. Section 17592.70 of the Education Code is amended to
read:
17592.70.
(a) There is hereby established the School Facilities Needs
Assessment Grant Program to provide for a one-time comprehensive
assessment of school facilities needs. The grant program shall be
administered by the State Allocation Board.
(b) (1) The grants shall be awarded to school districts on behalf
of schoolsites ranked in deciles 1 to 3, inclusive, on the Academic
Performance Index, pursuant to Section 52056, based on the 2003 base
Academic Performance Index score for each school newly constructed
prior to January 1, 2000.
(2) For purposes of this section, schools ranked in deciles 1 to
3, inclusive, on the 2003 base Academic Performance Index (API) shall
include any schools determined by the State Department of Education
to meet either of the following:
(A) The school meets all of the following criteria:
(i) Does not have a valid base API score for 2003.
(ii) Is operating in the 2004-05 fiscal year and was operating in
the 2003-04 fiscal year during the Standardized Testing and Reporting
(STAR) Program testing period.
(iii) Has a valid base API score for 2002 that was ranked in
deciles 1 to 3, inclusive, in that year.
(B) The school has an estimated base API score for 2003 that would
be in deciles 1 to 3, inclusive.
(3) The State Department of Education shall estimate an API score
for any school meeting the criteria of clauses (i) and (ii) of
subparagraph (A) of paragraph (2) and not meeting the criteria of
clause (iii) of subparagraph (A) of that paragraph, using available
testing scores and any weighting or corrective factors it deems
appropriate. The department shall provide those API scores to the
Office of Public School Construction and post them on its Web site
within 30 days of the enactment of this section.
(c) The State Allocation Board shall allocate funds pursuant to
subdivision (b) to school districts with jurisdiction over eligible
schoolsites, based on ten dollars ($10) per pupil enrolled in the
eligible school as of October 2003, with a minimum allocation of
seven thousand five hundred dollars ($7,500) for each schoolsite.
(d) As a condition of receiving funds pursuant to this section,
school districts shall do all of the following:
(1) Use the funds to develop a comprehensive needs assessment of
all schoolsites eligible for grants pursuant to subdivision (b). The
assessment shall contain, at a minimum, all of the following
information for each schoolsite:
(A) The year each building that is currently used for
instructional purposes was constructed.
(B) The year, if any, each building that is currently used for
instructional purposes was last modernized.
(C) The pupil capacity of the school.
(D) The number of pupils enrolled in the school.
(E) The density of the school campus measured in pupils per acre.
(F) The total number of classrooms at the school.
(G) The age and number of portable classrooms at the school.
(H) Whether the school is operating on a multitrack, year-round
calendar, and, if so, what type.
(I) Whether the school has a cafeteria, an auditorium, or other
space used for pupil eating and not for class instruction.
(J) The useful life remaining of all major building systems for
each structure housing instructional space, including, but not
limited to, sewer, water, gas, electrical, roofing, and fire and life
safety protection.
(K) The estimated costs for five years necessary to maintain
functionality of each instructional space to maintain health, safety,
and suitable learning environment, as applicable, including
classrooms, counseling areas, administrative space, libraries,
gymnasiums, multipurpose and dining space, and the accessibility to
those spaces.
(L) A list of necessary repairs.
(2) Use the data currently filed with the state as part of the
process of applying for and obtaining modernization or construction
funds for school facilities, or information that is available in the
California Basic Education Data System for the element required in
subparagraphs (D), (E), (F), and (G) of paragraph (1).
(3) Use the assessment as the baseline for the facilities
inspection system required pursuant to subdivision (e) of Section
17070.75.
(4) Provide the results of the assessment to the Office of Public
School Construction, including a report on the expenditures made in
performing the assessment. It is the intent of the Legislature that
the assessments be completed as soon as possible, but not later than
January 1, 2006.
(5) If a school district does not need the full amount of the
allocation it receives pursuant to this section, the school district
shall expend the remaining funds for making facilities repairs
identified in its needs assessment. The school district shall report
to the Office of Public School Construction on the repairs completed
pursuant to this paragraph and the cost of the repairs.
(6) Submit to the Office of Public School Construction an interim
report regarding the progress made by the school district in
completing the assessments of all eligible schools.
SEC. 30. Section 17592.72 of the Education Code is amended to
read:
17592.72.
(a) All moneys in the School Facilities Emergency Repair Account
are available for reimbursement to schools ranked in deciles 1 to 3,
inclusive, on the Academic Performance Index, pursuant to Section
52056, based on the 2003 base Academic Performance Index score for
each school, as defined in subdivision (b) of Section 17592.70, to
meet the repair costs of the school district projects that meet the
criteria specified in subdivisions (c) and (d) and as approved by the
State Allocation Board.
(b) (1) It is the intent of the Legislature that each school
district exercise due diligence in the administration of deferred
maintenance and regular maintenance in order to avoid the occurrence
of emergency repairs.
(2) Funds made available pursuant to this article shall
supplement, not supplant, existing funds available for maintenance of
school facilities.
(3) The board is authorized to deny future funding pursuant to
this article to a school district if the board determines that there
is a pattern of failure to exercise due diligence pursuant to
paragraph (1) or supplantation. If the board finds a pattern of
failure to exercise due diligence, the board shall notify the county
superintendent of schools in which the school district is located.
(c) (1) For purposes of this article, "emergency facilities needs"
means structures or systems that are in a condition that poses a
threat to the health and safety of pupils or staff while at school.
These projects may include, but are not limited to, the following
types of facility repairs or replacements:
(A) Gas leaks.
(B) Nonfunctioning heating, ventilation, fire sprinklers, or
air-conditioning systems.
(C) Electrical power failure.
(D) Major sewer line stoppage.
(E) Major pest or vermin infestation.
(F) Broken windows or exterior doors or gates that will not lock
and that pose a security risk.
(G) Abatement of hazardous materials previously undiscovered that
pose an immediate threat to pupil or staff.
(H) Structural damage creating a hazardous or uninhabitable
condition.
(2) For purposes of this section, "emergency facilities needs"
does not include any cosmetic or nonessential repairs.
(d) For the purpose of this section, structures or components
shall only be replaced if it is more cost-effective than repair.
SEC. 31. Section 17592.73 of the Education Code is amended to
read:
17592.73.
The State Allocation Board shall do all of the following:
(a) Adopt regulations and review and amend its regulations, as
necessary, pursuant to the rulemaking provisions of the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code),
for the administration of this article, including those regulations
necessary to specify the qualifications of the personnel performing
the needs assessment and a method to ensure their independence. The
initial regulations adopted pursuant to this article shall be adopted
as emergency regulations, and the circumstances related to the
initial adoption are hereby deemed to constitute an emergency for
this purpose. The initial regulations adopted pursuant to this
article shall be adopted by January 31, 2005.
(b) Establish and publish any procedures and policies in
connection with the administration of this article as it deems
necessary.
(c) Apportion funds to eligible school districts under this
article.
(d) Provide technical assistance to school districts to implement
this article.
(e) Submit an interim status report to the Legislature and the
Governor by June 30, 2005, by compiling the reports submitted
pursuant to paragraph (6) of subdivision (d) of Section 17592.70.
(f) By June 30, 2008, report to the Legislature and the Governor
on expenditures pursuant to Section 17592.72 and projections of
future expenditures pursuant to Section 17592.72.
SEC. 32. Section 22115 of the Education Code is amended to read:
22115.
(a) "Compensation earnable" means the creditable compensation a
person could earn in a school year for creditable service performed
on a full-time basis, excluding service for which contributions are
credited by the system to the Defined Benefit Supplement Program.
(b) The board may determine compensation earnable for persons
employed on a part-time basis.
(c) When service credit for a school year is less than 1.000,
compensation earnable shall be the quotient obtained when creditable
compensation paid in that year is divided by the service credit for
that year, except as provided in subdivision (d).
(d) When a member earns creditable compensation at multiple pay
rates during a school year and service credit at the highest pay rate
is at least 0.900 of a year, compensation earnable shall be
determined as if all service credit for that year had been earned at
the highest pay rate. This subdivision shall be applicable only for
purposes of determining final compensation. When a member earns
creditable compensation at multiple pay rates during a school year
and service credit at the highest pay rate is less than 0.900 of a
year, compensation earnable shall be determined pursuant to
subdivision (c).
(e) For purposes of determining compensation earnable for a member
employed by a community college prior to July 1, 1996, full time
shall be defined pursuant to Section 22138.5 and pursuant to Section
20521 of Title 5 of the California Code of Regulations, as those
provisions read on June 30, 1996, if application of that definition
will increase the compensation earnable or otherwise enhance the
benefits of the member.
(f) The amendments to this section made during the second year of
the 1999-2000 Regular Session shall become operative on July 1, 2002,
if the revenue limit cost-of-living adjustment computed by the
Superintendent of Public Instruction for the 2001-02 fiscal year is
equal to or greater than 3.5 percent. Otherwise the amendments to
this section made during the second year of the 1999-2000 Regular
Session shall become operative on July 1, 2003.
SEC. 33. Section 22200 of the Education Code is amended to read:
22200.
(a) The plan and the system are administered by the Teachers'
Retirement Board. On and after January 1, 2004, the members of the
board are as follows:
(1) The Superintendent of Public Instruction.
(2) The Controller.
(3) The Treasurer.
(4) The Director of Finance.
(5) Three persons who are either members of the Defined Benefit
Program or participants in the Cash Balance Benefit Program, as
follows:
(A) One person who, at the time of election, is an active member
of the Defined Benefit Program or an active participant of the Cash
Balance Benefit Program employed by a school district that provides
instruction for kindergarten and grades 1 to 12, inclusive, or a
county office of education, in a position other than a school
administrator that requires a services credential with a
specialization in administrative services. This member shall be
elected by the active members of the Defined Benefit Program and
active participants of the Cash Balance Benefit Program who are
employed by a school district that provides instruction for
kindergarten and grades 1 to 12, inclusive, or county office of
education, pursuant to regulations adopted by the board, for a
four-year term commencing on January 1, 2004.
(B) One person who, at the time of election, is an active member
of the Defined Benefit Program or an active participant of the Cash
Balance Benefit Program employed by a school district that provides
instruction for kindergarten and grades 1 to 12, inclusive, or a
county office of education. This member shall be elected by the
active members of the Defined Benefit Program and active participants
of the Cash Balance Benefit Program who are employed by a school
district that provides instruction for kindergarten and grades 1 to
12, inclusive, or a county office of education, pursuant to
regulations adopted by the board, for a four-year term commencing on
January 1, 2004.
(C) One person who, at the time of election, is a community
college instructor and an active member of the Defined Benefit
Program or an active participant of the Cash Balance Benefit Program
employed by a community college district, who shall be elected by the
active community college members of the Defined Benefit Program and
the active community college participants of the Cash Balance Benefit
Program, pursuant to regulations adopted by the board, for a
four-year term commencing on January 1, 2004.
(6) Five persons appointed by the Governor for a term of four
years, subject to confirmation by the Senate, as follows:
(A) One person who, at the time of appointment, is a member of the
governing board of a school district or a community college
district.
(B) One person who is either a retired member under this part or a
retired participant under Part 14 (commencing with Section 26000).
(C) Three persons representing the public, whose terms shall be
staggered by varying the first terms of these members, as follows:
(i) One person to a term expiring December 31, 2005.
(ii) One person to a term expiring December 31, 2006.
(iii) One person to a term expiring December 31, 2007.
(b) A person who is employed to perform creditable service by a
community college district and either a school district that provides
instruction for kindergarten and grades 1 to 12, inclusive, or a
county office of education may only be elected to the position on the
board that corresponds to the position in which he or she accrued
the most service credit during the prior school year.
(c) The members of the board shall annually elect a chairperson
and vice chairperson.
SEC. 34. Section 33126 of the Education Code is amended to read:
33126.
(a) The school accountability report card shall provide data by
which a parent can make meaningful comparisons between public schools
that will enable him or her to make informed decisions on which
school to enroll his or her children.
(b) The school accountability report card shall include, but is
not limited to, assessment of the following school conditions:
(1) (A) Pupil achievement by grade level, as measured by the
standardized testing and reporting programs pursuant to Article 4
(commencing with Section 60640) of Chapter 5 of Part 33.
(B) Pupil achievement in and progress toward meeting reading,
writing, arithmetic, and other academic goals, including results by
grade level from the assessment tool used by the school district
using percentiles when available for the most recent three-year
period.
(C) After the state develops a statewide assessment system
pursuant to Chapter 5 (commencing with Section 60600) and Chapter 6
(commencing with Section 60800) of Part 33, pupil achievement by
grade level, as measured by the results of the statewide assessment.
(D) Secondary schools with high school seniors shall list both the
average verbal and math Scholastic Assessment Test scores to the
extent provided to the school and the percentage of seniors taking
that exam for the most recent three-year period.
(2) Progress toward reducing dropout rates, including the one-year
dropout rate listed in the California Basic Education Data System or
any successor data system for the schoolsite over the most recent
three-year period, and the graduation rate, as defined by the State
Board of Education, over the most recent three-year period when
available pursuant to Section 52052.
(3) Estimated expenditures per pupil and types of services funded.
(4) Progress toward reducing class sizes and teaching loads,
including the distribution of class sizes at the schoolsite by grade
level, the average class size, and, if applicable, the percentage of
pupils in kindergarten and grades 1 to 3, inclusive, participating in
the Class Size Reduction Program established pursuant to Chapter
6.10 (commencing with Section 52120) of Part 28, using California
Basic Education Data System or any successor data system information
for the most recent three-year period.
(5) The total
number of the school's fully credentialed teachers, the number of
teachers relying upon emergency credentials, the number of teachers
working without credentials, any assignment of teachers outside their
subject areas of competence, misassignments, including
misassignments of teachers of English learners, and the number of
vacant teacher positions for the most recent three-year period.
(A) For purposes of this paragraph, "vacant teacher position"
means a position to which a single designated certificated employee
has not been assigned at the beginning of the year for an entire year
or, if the position is for a one-semester course, a position to
which a single designated certificated employee has not been assigned
at the beginning of a semester for an entire semester.
(B) For purposes of this paragraph, "misassignment" means the
placement of a certificated employee in a teaching or services
position for which the employee does not hold a legally recognized
certificate or credential or the placement of a certificated employee
in a teaching or services position that the employee is not
otherwise authorized by statute to hold.
(6) (A) Quality and currency of textbooks and other instructional
materials, including whether textbooks and other materials meet state
standards and are adopted by the State Board of Education for
kindergarten and grades 1 to 8, inclusive, and adopted by the
governing boards of school districts for grades 9 to 12, inclusive,
and the ratio of textbooks per pupil and the year the textbooks were
adopted.
(B) The availability of sufficient textbooks and other
instructional materials, as defined in Section 60119, for each pupil,
including English learners, in each of the following areas:
(i) The core curriculum areas of reading/language arts,
mathematics, science, and history/social science.
(ii) Foreign language and health.
(iii) Science laboratory equipment for grades 9 to 12, inclusive,
as appropriate.
(7) The availability of qualified personnel to provide counseling
and other pupil support services, including the ratio of academic
counselors per pupil.
(8) Availability of qualified substitute teachers.
(9) Safety, cleanliness, and adequacy of school facilities,
including any needed maintenance to ensure good repair as specified
in Section 17014, Section 17032.5, subdivision (a) of Section
17070.75, and subdivision (b) of Section 17089.
(10) Adequacy of teacher evaluations and opportunities for
professional improvement, including the annual number of schooldays
dedicated to staff development for the most recent three-year period.
(11) Classroom discipline and climate for learning, including
suspension and expulsion rates for the most recent three-year period.
(12) Teacher and staff training, and curriculum improvement
programs.
(13) Quality of school instruction and leadership.
(14) The degree to which pupils are prepared to enter the
workforce.
(15) The total number of instructional minutes offered in the
school year, separately stated for each grade level, as compared to
the total number of the instructional minutes per school year
required by state law, separately stated for each grade level.
(16) The total number of minimum days, as specified in Sections
46112, 46113, 46117, and 46141, in the school year.
(17) The number of advanced placement courses offered, by subject.
(18) The Academic Performance Index, including the disaggregation
of subgroups as set forth in Section 52052 and the decile rankings
and a comparison of schools.
(19) Whether a school qualified for the Immediate Intervention
Underperforming Schools Program pursuant to Section 52053 and whether
the school applied for, and received, a grant pursuant to that
program.
(20) Whether the school qualifies for the Governor's Performance
Award Program.
(21) When available, the percentage of pupils, including the
disaggregation of subgroups as set forth in Section 52052, completing
grade 12 who successfully complete the high school exit examination,
as set forth in Sections 60850 and 60851, as compared to the
percentage of pupils in the district and statewide completing grade
12 who successfully complete the examination.
(22) Contact information pertaining to any organized opportunities
for parental involvement.
(23) For secondary schools, the percentage of graduates who have
passed course requirements for entrance to the University of
California and the California State University pursuant to Section
51225.3 and the percentage of pupils enrolled in those courses, as
reported by the California Basic Education Data System or any
successor data system.
(24) Whether the school has a college admissions test preparation
course program.
(c) If the Commission on State Mandates finds that a school
district is eligible for a reimbursement of costs incurred in
complying with this section, the school district shall be reimbursed
only if the information provided in the school accountability report
card is accurate, as determined by the annual audit performed
pursuant to Section 41020. If the information is determined to be
inaccurate, the school district is not ineligible for reimbursement
if the information is corrected by May 15.
(d) It is the intent of the Legislature that schools make a
concerted effort to notify parents of the purpose of the school
accountability report cards, as described in this section, and ensure
that all parents receive a copy of the report card; to ensure that
the report cards are easy to read and understandable by parents; to
ensure that local educational agencies with access to the Internet
make available current copies of the report cards through the
Internet; and to ensure that administrators and teachers are
available to answer any questions regarding the report cards.
SEC. 35. Section 41020.5 of the Education Code is amended to read:
41020.5.
(a) If the Controller determines by two consecutive quality
control reviews pursuant to Section 14504.2, or if a county
superintendent of schools determines, that audits performed by a
certified public accountant or public accountant under Section 41020
were not performed in substantial conformity with provisions of the
audit guide, or that the audit reports, including amended reports,
submitted by February 15 following the close of the fiscal year
audited, for two consecutive years do not conform to provisions of
the audit guide as required by Section 14504, the Controller or the
county superintendent of schools, as appropriate, shall notify in
writing the certified public accountant or public accountant and the
California Board of Accountancy.
If the certified public accountant or public accountant does not
file an appeal in writing with the California Board of Accountancy
within 30 calendar days after receipt of the notification from the
Controller or county superintendent of schools, the determination of
the Controller or county superintendent of schools pursuant to this
section shall be final.
(b) If an appeal is filed with the California Board of
Accountancy, the board shall complete an investigation of the appeal
within 90 days of the filing date. On the basis of the investigation,
the board may do either of the following:
(1) Find that the determination of the Controller or county
superintendent of schools should not be upheld and has no effect.
(2) Schedule the appeal for a hearing, in which case, the final
action on the appeal shall be completed by the board within one year
from the date of filing the appeal.
(c) If the determination of the Controller or county
superintendent of schools under subdivision (a) becomes final, the
certified public accountant or public accountant shall be ineligible
to conduct audits under Section 41020 for a period of three years,
or, in the event of an appeal, for any period, and subject to the
conditions, that may be ordered by the California Board of
Accountancy. Not later than the first day of March of each year, the
Controller shall notify each school district and county office of
education of those certified public accountants or public accountants
determined to be ineligible under this section. School districts and
county offices of education shall not use the audit services of a
certified public accountant or public accountant ineligible under
this section.
(d) For the purposes of this section, "certified public accountant
or public accountant" includes any person or firm entering into a
contract to conduct an audit under Section 41020.
(e) This section shall not preclude the California Board of
Accountancy from taking any disciplinary action it deems appropriate
under other provisions of law.
SEC. 36. Section 41326.1 of the Education Code is amended to read:
41326.1.
Within 30 days of assuming authority, an administrator who has
control over a school district pursuant to Section 41326 shall
discuss options for resolving the fiscal problems of the district
with all of the following groups and shall consider, on a monthly
basis, or more frequently if so desired by the administrator,
information from one or more of the following groups:
(a) The governing board of the school district.
(b) Any advisory council of the school district.
(c) Any parent-teacher organization of the school district.
(d) Representatives from the community in which the school
district is located.
(e) The district administrative team.
(f) The County Office Fiscal Crisis and Management Assistance
Team.
(g) Representatives of employee bargaining units.
(h) The county superintendent of schools.
SEC. 37. Section 41328 of the Education Code is amended to read:
41328.
The qualifying district shall bear 100 percent of all costs
associated with implementing this article, including the activities
of the County Office Fiscal Crisis and Management Assistance Team or
the regional team. The Superintendent of Public Instruction shall
withhold from the apportionments to be made from the State School
Fund to the district the amounts due pursuant to this section.
SEC. 38. Section 41530 of the Education Code is amended to read:
41530.
(a) There is hereby established the professional development block
grant. Commencing with the 2005-06 fiscal year, the Superintendent
of Public Instruction shall apportion block grant funds to a school
district based on the number of certificated teachers employed by the
school district in the immediately prior fiscal year.
(b) A school district may expend funds received pursuant to this
article for any purpose authorized by the programs listed in Section
41531, as the statutes governing those programs read on January 1,
2004, if the school district provides each teacher of kindergarten or
grades 1 to 6, inclusive, with opportunities to participate in
professional development activities in reading, language arts, or
English language development. In providing teachers of kindergarten
and grades 1 to 6, inclusive, with opportunities to participate in
professional development activities in reading, language arts, or
English language development, a school district shall expend at least
an amount that is equal to the proportion that funding calculated
pursuant to Article 3 (commencing with Section 99230) of Chapter 5 of
Part 65 bears to the statewide total amount of block grant funds
appropriated for purposes of this article. For purposes of this
article, professional development in reading, language arts, or
English language development shall be equivalent in rigor to the
professional development provided pursuant to Article 3 (commencing
with Section 99230) of Chapter 5 of Part 65, as that article read on
January 1, 2004.
(c) For purposes of this article, "school district" includes a
county office of education if county offices of education are
eligible to receive funds for the programs that are listed in Section
41531. The block grant of a county office of education shall be
based only on those programs for which it was eligible to receive
funds in the 2003-04 fiscal year.
SEC. 39. Section 44830.3 of the Education Code is amended to read:
44830.3.
(a) The governing board of any school district that maintains
kindergarten or grades 1 to 12, inclusive, classes in bilingual
education, or special education programs for pupils with mild and
moderate disabilities, may, in consultation with an accredited
institution of higher education offering an approved program of
pedagogical teacher preparation, employ persons authorized by the
Commission on Teacher Credentialing to provide service as district
interns to provide instruction to pupils in those grades or classes
as a classroom teacher. The governing board shall require that each
district intern be assisted and guided by a certificated employee
selected through a competitive process adopted by the governing board
after consultation with the exclusive teacher representative unit or
by personnel employed by institutions of higher education to
supervise student teachers. These certificated employees shall
possess valid certification at the same level, or of the same type of
credential, as the district interns they serve.
(b) The governing board of each school district employing district
interns shall develop and implement a professional development plan
for district interns in consultation with an accredited institution
of higher education offering an approved program of pedagogical
preparation. The professional development plan shall include all of
the following:
(1) Provisions for an annual evaluation of the district intern.
(2) As the governing board determines necessary, a description of
courses to be completed by the district intern, if any, and a plan
for the completion of preservice or other clinical training, if any,
including student teaching.
(3) Mandatory preservice training for district interns tailored to
the grade level or class to be taught, through either of the
following options:
(A) One hundred twenty clock hours of preservice training and
orientation in the aspects of child development, classroom
organization and management, pedagogy, and methods of teaching the
subject field or fields in which the district intern will be
assigned, which training and orientation period shall be under the
direct supervision of an experienced permanent teacher. In addition,
persons holding district intern certificates issued by the commission
pursuant to Section 44325 shall receive orientation in methods of
teaching pupils with mild and moderate disabilities. At the
conclusion of the preservice training period, the permanent teacher
shall provide the district with information regarding the area that
should be emphasized in the future training of the district intern.
(B) The successful completion, prior to service by the intern in
any classroom, of six semester units of coursework from a regionally
accredited college or university, designed in cooperation with the
school district to provide instruction and orientation in the aspects
of child development and the methods of teaching the subject matter
or matters in which the district intern will be assigned.
(4) Instruction in child development and the methods of teaching
during the first semester of service for district interns teaching in
kindergarten or grades 1 to 6, inclusive, including bilingual
education classes and, for persons holding district intern
certificates issued by the commission pursuant to Section 44325,
special education programs for pupils with mild and moderate
disabilities at those levels.
(5) Instruction in the culture of and methods of teaching
bilingual pupils during the first year of service for district
interns teaching pupils in bilingual classes and, for persons holding
district intern certificates issued by the commission pursuant to
Section 44325, instruction in the etiology of and methods of teaching
pupils with mild and moderate disabilities.
(6) Any other criteria that may be required by the governing
board.
(7) In addition to the requirements set forth in paragraphs (1) to
(6), inclusive, the professional development plan for district
interns teaching in special education programs for pupils with mild
and moderate disabilities also shall include 120 clock hours of
mandatory training and supervised fieldwork that shall include, but
not be limited to, instructional practices, and the procedures and
pedagogy of both general education programs and special education
programs that teach pupils with disabilities.
(8) In addition to the requirements set forth in paragraphs (1) to
(6), inclusive, the professional development plan for district
interns teaching bilingual classes shall also include 120 clock hours
of mandatory training and orientation, which shall include, but not
be limited to, instruction in subject matter relating to
bilingual-crosscultural language and academic development.
(9) The professional development plan for district interns
teaching in special education programs for pupils with mild and
moderate disabilities shall be based on the standards adopted by the
commission as provided in subdivision (a) of Section 44327.
(c) Each district intern and each district teacher assigned to
supervise the district intern during the preservice period shall be
compensated for the preservice period required pursuant to
subparagraph (A) or (B) of paragraph (3) of subdivision (b). The
compensation shall be that which is normally provided by each
district for staff development or in-service activity.
(d) Upon completion of service sufficient to meet program
standards and performance assessments, the governing board may
recommend to the Commission on Teacher Credentialing that the
district intern be credentialed in the manner prescribed by Section
44328.
SEC. 40. Section 48853 of the Education Code is amended to read:
48853.
(a) A pupil placed in a licensed children's institution or foster
family home shall attend programs operated by the local educational
agency, unless one of the following applies:
(1) The pupil has an individualized education program requiring
placement in a nonpublic, nonsectarian school or agency, or in
another local educational agency.
(2) The parent or guardian, or other person holding the right to
make educational decisions for the pupil pursuant to Section 361 or
727 of the Welfare and Institutions Code or Section 56055, determines
that it is in the best interest of the pupil to be placed in another
educational program, or that the pupil continue in his or her school
of origin pursuant to paragraph (1) of subdivision (d) of Section
48853.5.
(b) Before any decision is made to place a pupil in a juvenile
court school as defined by Section 48645.1, the parent or guardian,
or person holding the right to make educational decisions for the
pupil pursuant to Section 361 or 726 of the Welfare and Institutions
Code or Section 56055, shall first consider placement in the regular
public school.
(c) If any dispute arises as to the school placement of a pupil
subject to this section, the pupil has the right to remain in his or
her school of origin, as defined in subdivision (e) of Section
48853.5, pending resolution of the dispute.
(d) This section does not supersede other laws that govern pupil
expulsion.
(e) This section does not supersede any other law governing the
educational placement in a juvenile court school, as defined by
Section 48645.1, of a pupil detained in a county juvenile hall, or
committed to a county juvenile ranch, camp, forestry camp, or
regional facility.
(f) Foster children living in emergency shelters, as referenced in
the McKinney-Vento Homeless Assistance Act (42 U.S.C. Sec. 11301 et
seq.), may receive educational services at the emergency shelter as
necessary for short periods of time for either of the following
reasons:
(1) For health and safety emergencies.
(2) To provide temporary, special, and supplementary services to
meet the child's unique needs if a decision regarding whether it is
in the child's best interest to attend the school of origin cannot be
made promptly, it is not practical to transport the child to the
school of origin, and the child would otherwise not receive
educational services.
The educational services may be provided at the shelter pending a
determination by the person holding the right regarding the
educational placement of the child.
(g) All educational and school placement decisions shall be made
to ensure that the child is placed in the least restrictive
educational programs and has access to academic resources, services,
and extracurricular and enrichment activities that are available to
all pupils. In all instances, educational and school placement
decisions shall be based on the best interests of the child.
SEC. 41. Section 49341 of the Education Code is amended to read:
49341.
The Legislature hereby finds and declares as follows:
(a) Because school science laboratories pose a potentially serious
threat to the health and safety of school pupils and school
personnel due to the use and storage of hazardous materials in these
laboratories, educational efforts are needed to increase the
awareness of persons dealing with these materials in these settings
so that possible losses of life, injuries, losses of property, and
social disruption, which could result from the improper and unsafe
use of hazardous materials, will be minimized.
(b) Effective safety in school laboratories requires informed
judgment, decisionmaking, and operating procedures by those
responsible for laboratory and related instruction. It is desirable
that each high school and junior high, middle, or elementary school
offering laboratory work have a trained member of the professional
staff who is designated as the building laboratory consultant and who
is responsible for the review, updating, and carrying out of the
school's adopted procedures for laboratory safety.
(c) Efforts by state and local agencies to implement training
programs designed to provide qualified individuals with the necessary
information, organizational skills, and materials to assist schools
and teachers in the development of their laboratory safety policies
and procedures are nonexistent or inadequate, and it is necessary
that this situation be remedied. The state should assume leadership
through the policy and guidance of the State Department of Education
in the development, support, and implementation of a statewide
training program.
(d) The Legislature requests that the State Department of
Education consider making this program a part of the department's
energy and environmental education program that is conducted pursuant
to Chapter 4 (commencing with Section 8700) of Part 6.
SEC. 42. Section 49414.5 of the Education Code is amended to read:
49414.5.
(a) In the absence of a credentialed school nurse or other
licensed nurse onsite at the school, each school district may provide
school personnel with voluntary emergency medical training to
provide emergency medical assistance to pupils with diabetes
suffering from severe hypoglycemia, and volunteer personnel shall
provide this emergency care, in accordance with standards established
pursuant to subdivision (b) and the performance instructions set
forth by the licensed health care provider of the pupil. A school
employee who does not volunteer or who has not been trained pursuant
to subdivision (b) may not be required to provide emergency medical
assistance pursuant to this subdivision.
(b) (1) The Legislature encourages the American Diabetes
Association to develop performance standards for the training and
supervision of school personnel in providing emergency medical
assistance to pupils with diabetes suffering from severe
hypoglycemia. The performance standards shall be developed in
cooperation with the department, the California School Nurses
Organization, the California Medical Association, and the American
Academy of Pediatrics. Upon the development of the performance
standards pursuant to this paragraph, the State Department of Health
Services' Diabetes Prevention and Control Program shall approve the
performance standards for distribution and make those standards
available upon request.
(2) Training established pursuant to this subdivision shall
include all of the following:
(A) Recognition and treatment of hypoglycemia.
(B) Administration of glucagon.
(C) Basic emergency followup procedures, including, but not
limited to, calling the emergency 911 telephone number and
contacting, if possible, the pupil's parent or guardian and licensed
health care provider.
(3) Training by a physician, credentialed school nurse, registered
nurse, or certificated public health nurse according to the
standards established pursuant to this section shall be deemed
adequate training for the purposes of this section.
(4) (A) A school employee shall notify the credentialed school
nurse assigned to the school district if he or she administers
glucagon pursuant to this section.
(B) If a credentialed school nurse is not assigned to the school
district, the school employee shall notify the superintendent of the
school district, or his or her designee, if he or she administers
glucagon pursuant to this section.
(5) All materials necessary to administer the glucagon shall be
provided by the parent or guardian of the pupil.
(c) In the case of a pupil who is able to self-test and monitor
his or her blood glucose level, upon written request of the parent or
guardian, and with authorization of the licensed health care
provider of the pupil, a pupil with diabetes shall be permitted to
test his or her blood glucose level and to otherwise provide diabetes
self-care in the classroom, in any area of the school or school
grounds, during any school-related activity, and, upon specific
request by a parent or guardian, in a private location.
(d) For the purposes of this section, the following terms have the
following meanings:
(1) "School personnel" means any one or more employees of a school
district who volunteers to be trained to administer emergency
medical assistance to a pupil with diabetes.
(2) "Emergency medical assistance" means the administration of
glucagon to a pupil who is suffering from severe hypoglycemia.
SEC. 43. Section 51226.1 of the Education Code is amended to read:
51226.1.
(a) Upon adoption of the model curriculum standards developed
pursuant to Section 51226, the Superintendent of Public Instruction
shall develop a curriculum framework consistent
with criteria set forth in subdivision (a) of
Section 60005 that offers a blueprint for implementation of career
and technical education. The framework shall be adopted no later than
June 1, 2006.
(b) In developing the framework, the superintendent shall work in
consultation and coordination with an advisory group, including, but
not limited to, representatives from all of the following:
(1) Business and industry.
(2) Labor.
(3) The California Community Colleges.
(4) The University of California.
(5) The California State University.
(6) Classroom teachers.
(7) School administrators.
(8) Pupils.
(9) Parents and guardians.
(10) Representatives of the Legislature.
(11) The State Department of Education.
(12) The Labor and Workforce Development Agency.
(c) In convening the membership of the advisory group set forth in
subdivision (b), the superintendent is encouraged to seek
representation broadly reflective of the state population.
(d) Costs incurred by the superintendent in complying with this
section shall be covered, to the extent permitted by federal law, by
the state administrative and leadership funds available pursuant to
the Carl D. Perkins Vocational and Technical Education Act of 1998
(20 U.S.C. Sec. 2301 et seq.).
(e) In developing the framework, the superintendent shall consider
developing frameworks for various career pathways that will prepare
pupils for both career entry and matriculation into postsecondary
education.
(f) Upon completion of the framework, the advisory group is
encouraged to identify career technical education courses that meet
state-adopted academic content standards and that satisfy high school
graduation requirements and admissions requirements of the
University of California and the California State University, and to
determine the extent to which local educational agencies accept
credit earned for the completion of those courses, in lieu of other
courses of study.
(g) The adoption of the framework developed and adopted pursuant
to this section by a local educational agency shall be voluntary.
SEC. 44. Section 51430 of the Education Code is amended to read:
51430.
(a) Notwithstanding any other provision of law, a high school
district, unified school district, or county office of education, may
retroactively grant a high school diploma to a person who has not
received a high school diploma if he or she meets either of the
following conditions:
(1) The person was interned by order of the federal government
during World War II and was enrolled in a high school operated by the
school district or under the jurisdiction of the county office of
education immediately preceding his or her internment and did not
receive a high school diploma because his or her education was
interrupted due to his or her internment during World War II.
(2) The person is a veteran of World War II, the Korean War, or
the Vietnam War, was honorably discharged from his or her military
service, was enrolled in a high school operated by the school
district or under the jurisdiction of the county office of education
immediately preceding his or her military service in those wars, and
did not receive a high school diploma because his or her education
was interrupted due to his or her military service in those wars.
(b) A high school district, unified school district, or county
office of education may retroactively grant a high school diploma to
a deceased person who meets the conditions of paragraph (1) or (2) of
subdivision (a), to be received by the next of kin of the deceased
person.
SEC. 45. Section 52059 of the Education Code is amended to read:
52059.
(a) For purposes of complying with the federal No Child Left
Behind Act of 2001 (20 U.S.C. Sec. 6301 et seq.), a Statewide System
of School Support shall be established by the department to provide a
statewide system of intensive and sustained support and technical
assistance for school districts, county offices of education, and
schools in need of improvement. The system shall consist of regional
consortia, which may include county offices of education and school
districts, that work collaboratively with school districts and county
offices of education to meet the needs of school districts and
schools in need of improvement.
(b) The system shall provide assistance to school districts and
schools in need of improvement by:
(1) Reviewing and analyzing all facets of a school's operation,
including the following:
(A) The design and operation of the instructional program offered
by the school.
(B) The recruitment, hiring, and retention of principals,
teachers, and other staff, including vacancy issues. The system may
request the assistance of the Fiscal Crisis and Management Assistance
Team to review school district or school recruitment, hiring, and
retention practices.
(C) The roles and responsibilities of district and school
management personnel.
(2) Assisting the school in developing recommendations for
improving pupil performance and school operations.
(3) Assisting schools and school districts in efforts to eliminate
misassignments of certificated personnel.
(c) In carrying out this article, the department shall ensure that
support is provided in the following order of priority:
(1) To school districts or county offices of education with
schools that are subject to corrective action under paragraph (7) of
subsection (b) of Section 6316 of Title 20 of the United States Code.
(2) To school districts or county offices of education with
schools that are identified as being in need of improvement pursuant
to subsection (b) of Section 6316 of Title 20 of the United States
Code.
(3) To provide support and assistance to school districts and
county offices of education with schools participating under the No
Child Left Behind Act of 2001 (20 U.S.C. Sec. 6301 et seq.) that need
support and assistance to achieve the purposes of that act.
(4) To provide support and assistance to other school districts
and county offices of education with schools participating in a
program carried out under this chapter.
(d) For purposes of this article, all references to schools shall
include charter schools.
(e) Funds shall be distributed under this article based on the
number of schools and enrollment of those schools in each region that
have been identified as being in need of improvement pursuant to
Section 6316 of Title 20 of the United States Code, or are
participating in the programs conducted under this chapter.
SEC. 46. Section 52124 of the Education Code, as amended by
Section 1 of Chapter 910 of the Statutes of 2004, is amended to read:
52124.
(a) A school district that implements a class size reduction
program pursuant to this chapter is subject to this section.
(b) A school district may establish a program to reduce class size
in kindergarten and grades 1 to 3, inclusive, and that program shall
be implemented at each schoolsite according to the following
priorities:
(1) If only one grade level is reduced at a schoolsite, the grade
level shall be grade 1.
(2) If only two grade levels are reduced at a schoolsite, the
grade levels shall be grades 1 and 2.
(3) If three grade levels are reduced at a schoolsite, then those
grade levels shall be kindergarten and grades 1 and 2 or grades 1 to
3, inclusive. Priority shall be given to the reduction of class sizes
in grades 1 and 2 before the class sizes of kindergarten or grade 3
are reduced.
(4) If four grade levels are reduced at a schoolsite, then those
grade levels shall be kindergarten and grades 1 to 3, inclusive.
First priority shall be given to the reduction of class sizes in
grades 1 and 2, and second priority shall be given to the reduction
of class size in kindergarten and grade 3. This paragraph shall be
operative only in those fiscal years for which funds are appropriated
expressly for the purposes of this paragraph.
(c) It is the intent of the Legislature to continue to permit the
use of combination classes of more than one grade level to the extent
that school districts are otherwise permitted to use that
instructional strategy. However, any school district that uses a
combination class in any class for which funding is received pursuant
to this chapter may not claim funding pursuant to this chapter if
the total number of pupils in the combination class, regardless of
grade level, exceeds 20 pupils per certificated teacher assigned to
provide direct instructional services.
(d) The governing board of a school district shall certify to the
Superintendent of Public Instruction that it has met the requirements
of this section in implementing its class size reduction program. If
a school district receives funding pursuant to this chapter but has
not implemented its class size reduction program for all grades and
classes for which it received funding pursuant to this chapter, the
Superintendent of Public Instruction shall notify the Controller and
the school district in writing and the Controller shall deduct an
amount equal to the amount received by the school district under this
chapter for each class that the school district failed to reduce to
a class size of 20 or fewer pupils from the next principal
apportionment or apportionments of state funds to the district, other
than basic aid apportionments required by Section 6 of Article IX of
the California Constitution.
(e) Except for a school district participating pursuant to
subdivision (h) of Section 52122, the amount deducted pursuant to
subdivision (d) shall be adjusted as follows:
(1) Twenty percent of the amount to which the district would
otherwise be eligible for each class for which the annual enrollment
determined pursuant to Section 52124.5 is greater than or equal to
20.5 but less than 21.0.
(2) Forty percent of the amount to which the district would
otherwise be eligible for each class for which the annual average
enrollment determined pursuant to Section 52124.5 is greater than or
equal to 21.0 but less than 21.5.
(3) Eighty percent of the amount to which the district would
otherwise be eligible for each class for which the annual average
enrollment determined pursuant to Section 52124.5 is greater than or
equal to 21.5 but less than 21.9.
(4) The amount deducted pursuant to subdivision (d) for each class
for which the annual average enrollment determined pursuant to
Section 52141.5 is greater than or equal to 21.9 shall be the amount
of funding the district received for the class pursuant to this
chapter.
(f) Notwithstanding any other provision of this chapter, a school
district located in the County of Los Angeles, Riverside, San
Bernardino, San Diego, or Ventura may claim funding pursuant to this
chapter for the 2003-04 school year based on enrollment counts before
the October 2003 fires, in classes for which the class size
reduction program is implemented, if the following criteria are met:
(1) The school district submits to the Superintendent of Public
Instruction a "Request for Allowance of Attendance because of
Emergency Conditions" pursuant to Section 46392 and the emergency
conditions were caused by the October 2003 fires.
(2) The school district certifies that it suffered a loss of
enrollment in classes in which the class size reduction program is
implemented and this loss of enrollment is due to the October 2003
fires and would result in a decrease in funding that the district
receives pursuant to this chapter.
(g) This section shall be operative until July 1, 2009, and as of
January 1, 2010, is repealed, unless a later enacted statute deletes
or extend that date.
SEC. 47. Section 56366 of the Education Code is amended to read:
56366.
It is the intent of the Legislature that the role of a nonpublic,
nonsectarian school or agency shall be maintained and continued as an
alternative special education service available to a local
educational agency and parents.
(a) The master contract for nonpublic, nonsectarian school or
agency services shall be developed in accordance with the following
provisions:
(1) The master contract shall specify the general administrative
and financial agreements, including teacher-to-pupil ratios, between
the nonpublic, nonsectarian school or agency and the local
educational agency to provide the special education and designated
instruction and services, as well as transportation specified in each
pupil's individualized education program. The administrative
provisions of the contract also shall include procedures for
recordkeeping and documentation, and the maintenance of school
records by the contracting local educational agency to ensure that
appropriate high school graduation credit is received by each pupil.
The contract may allow for partial or full-time attendance at the
nonpublic, nonsectarian school.
(2) (A) The master contract shall include an individual services
agreement for each pupil placed by a local educational agency that
will be negotiated for the length of time for which nonpublic,
nonsectarian school or agency special education and designated
instruction and services are specified in the pupil's individualized
education program.
(B) The master contract shall include a description of the process
being utilized by the local educational agency to oversee and
evaluate placements in nonpublic, nonsectarian schools, as required
by federal law. This description shall include a method for
evaluating whether each pupil is making appropriate educational
progress. At least once every year, the local educational agency
shall do all of the following and, to the extent possible, the
following shall be conducted as part of the development and provision
of an individualized education program:
(i) Evaluate the educational progress of each pupil placed in a
nonpublic, nonsectarian school, including all state assessment
results pursuant to the requirements of Section 52052.
(ii) Consider whether or not the needs of the pupil continue to be
best met at the nonpublic, nonsectarian school and whether changes
to the individualized education program of the pupil are necessary,
including whether the pupil may be transitioned to a public school
setting. This consideration shall be made at the meeting required by
subdivision (d) of Section 56343.
(C) In the case of a nonpublic, nonsectarian school that is owned,
operated by, or associated with a licensed children's institution,
the master contract shall include a method for evaluating whether the
nonpublic, nonsectarian school is in compliance with the mandate set
forth in Section 56366.9 of this code and subdivision (b) of Section
1501.1 of the Health and Safety Code.
(3) Changes in educational instruction, services, or placement
provided under contract may only be made on the basis of revisions to
a pupil's individualized education program.
At any time during the term of the contract or individual services
agreement, the parent, the nonpublic, nonsectarian school or agency,
or the local educational agency may request a review of a pupil's
individualized education program by the individualized education
program team. Changes in the administrative or financial agreements
of the master contract that do not alter the individual services
agreement that outlines each pupil's educational instruction,
services, or placement may be made at any time during the term of the
contract as mutually agreed by the nonpublic, nonsectarian school or
agency and the local educational agency.
(4) The master contract or individual services agreement may be
terminated for cause. The cause shall not be the availability of a
public class initiated during the period of the contract unless the
parent agrees to the transfer of the pupil to a public school
program. To terminate the contract either party shall give 20 days'
notice.
(5) The nonpublic, nonsectarian school or agency shall provide all
services specified in an individualized education program, unless
the nonpublic, nonsectarian school or agency and the local
educational agency agree otherwise in the contract or individual
services agreement.
(6) Related services provided pursuant to a nonpublic,
nonsectarian agency master contract shall only be provided during the
period of a pupil's regular or extended school year program, or
both, unless otherwise specified by the pupil's individualized
education program.
(7) The nonpublic, nonsectarian school or agency shall report
attendance of pupils receiving special education and designated
instruction and services, as defined by Section 46307, for purposes
of submitting a warrant for tuition to each contracting local
educational agency.
(8) (A) A nonpublic, nonsectarian school is subject to the
alternative accountability system developed pursuant to Section 52052
in the same manner as public schools and each pupil placed in the
nonpublic, nonsectarian school by a local educational agency shall be
tested by qualified staff of the nonpublic, nonsectarian school in
accordance with that accountability program. The test results shall
be reported by the nonpublic, nonsectarian school to the department.
(B) Beginning with the 2006-07 school year testing cycle, each
nonpublic, nonsectarian school shall determine its STAR testing
period subject to subdivisions (b) and (c) of Section 60640. The
nonpublic, nonsectarian school shall determine this period based on
completion of 85 percent of the instructional year at that nonpublic,
nonsectarian school, plus and minus 10 days, resulting in a 21-day
period. Each nonpublic, nonsectarian school shall notify the district
of residence of a pupil enrolled in the school of its testing
period. Staff at the nonpublic, nonsectarian school who administer
the assessments shall attend the regular testing training sessions
provided by the district of residence. If staff from a nonpublic,
nonsectarian school have received training from one local educational
agency, that training will be sufficient for all local educational
agencies that send pupils to the nonpublic, nonsectarian school. The
district of residence shall order testing materials for its pupils
that have been placed in the nonpublic, nonsectarian school. The
board shall adopt regulations to facilitate the distribution of and
collection of testing materials.
(9) With respect to a nonpublic, nonsectarian school, the school
shall prepare a school accountability report card in accordance with
Section 33126.
(b) The master contract or individual services agreement shall not
include special education transportation provided through the use of
services or equipment owned, leased, or contracted by a local
educational agency for pupils enrolled in the nonpublic, nonsectarian
school or agency unless provided directly or subcontracted by that
nonpublic, nonsectarian school or agency.
The superintendent shall withhold 20 percent of the amount
apportioned to a local educational agency for costs related to the
provision of nonpublic, nonsectarian school or agency placements if
the superintendent finds that the local educational agency is in
noncompliance with this subdivision. This amount shall be withheld
from the apportionments in the fiscal year following the
superintendent's finding of noncompliance. The superintendent shall
take other appropriate actions to prevent noncompliant practices from
occurring and report to the Legislature on those actions.
(c) (1) If a pupil is enrolled in a nonpublic, nonsectarian school
or agency with the approval of the local educational agency prior to
agreement to a contract or individual services agreement, the local
educational agency shall issue a warrant, upon submission of an
attendance report and claim, for an amount equal to the number of
creditable days of attendance at the per diem tuition rate agreed
upon prior to the enrollment of the pupil. This provision shall be
allowed for 90 days during which time the contract shall be
consummated.
(2) If after 60 days the master contract or individual services
agreement has not been finalized as prescribed in paragraph (1) of
subdivision (a), either party may appeal to the county superintendent
of schools, if the county superintendent is not participating in the
local plan involved in the nonpublic, nonsectarian school or agency
contract, or the superintendent, if the county superintendent is
participating in the local plan involved in the contract, to
negotiate the contract. Within 30 days of receipt of this appeal, the
county superintendent or the superintendent, or his or her designee,
shall mediate the formulation of a contract, which shall be binding
upon both parties.
(d) A master contract for special education and related services
provided by a nonpublic, nonsectarian school or agency may not be
authorized under this part, unless the school or agency has been
certified as meeting those standards relating to the required special
education and specified related services and facilities for
individuals with exceptional needs. The certification shall result in
the school or agency receiving approval to educate pupils under this
part for a period no longer than 18 months from the date of the
initial approval.
(e) By September 30, 1998, the procedures, methods, and
regulations for the purposes of contracting for nonpublic,
nonsectarian school and agency services pursuant to this section and
for reimbursement pursuant to Sections 56836.16 and 56836.20 shall be
developed by the superintendent in consultation with statewide
organizations representing providers of special education and
designated instruction and services. The regulations shall be
established by rules and regulations issued by the board.
SEC. 48. Section 56366.1 of the Education Code is amended to read:
56366.1.
(a) A nonpublic, nonsectarian school or agency that seeks
certification shall file an application with the superintendent on
forms provided by the department, and include the following
information on the application:
(1) A description of the special education and designated
instruction and services provided to individuals with exceptional
needs if the application is for nonpublic, nonsectarian school
certification.
(2) A description of the designated instruction and services
provided to individuals with exceptional needs if the application is
for nonpublic, nonsectarian agency certification.
(3) A list of appropriately qualified staff, a description of the
credential, license, or registration that qualifies each staff member
rendering special education or designated instruction and services
to do so, and copies of their credentials, licenses, or certificates
of registration with the appropriate state or national organization
that has established standards for the service rendered.
(4) An annual operating budget.
(5) Affidavits and assurances necessary to comply with all
applicable federal, state, and local laws and regulations which
include criminal record summaries required of all nonpublic school or
agency personnel having contact with minor children under Section
44237.
(b) (1) The applicant shall provide the special education local
plan area in which the applicant is located with the written
notification of its intent to seek certification or renewal of its
certification. The applicant shall submit on a form, developed by the
department, a signed verification by local educational agency
representatives that they have been notified of the intent to certify
or renew certification. The verification shall include a statement
that representatives of the local educational agency for the area in
which the applicant is located have had the opportunity to review the
application at least 60 calendar days prior to submission of an
initial application to the superintendent, or at least 30 calendar
days prior to submission of a renewal application to the
superintendent. The signed verification shall provide assurances that
local educational agency representatives have had the opportunity to
provide input on all required components of the application.
(2) If the applicant has not received a response from the local
educational agency 30 days from the date of the return receipt, the
applicant may file the application with the superintendent. A copy of
the return receipt shall be included with the application as
verification of notification efforts to the local educational agency.
(3) The department shall mail renewal application materials to
certified nonpublic, nonsectarian schools and agencies at least 120
days prior to the date their current certification expires.
(c) If the applicant operates a facility or program on more than
one site, each site shall be certified.
(d) If the applicant is part of a larger program or facility on
the same site, the superintendent shall consider the effect of the
total program on the applicant. A copy of the policies and standards
for the nonpublic, nonsectarian school or agency and the larger
program shall be available to the superintendent.
(e) Prior to certification, the superintendent shall conduct an
onsite review of the facility and program for which the applicant
seeks certification. The superintendent may be assisted by
representatives of the special education local plan area in which the
applicant is located and a nonpublic, nonsectarian school or agency
representative who does not have a conflict of interest with the
applicant. The superintendent shall conduct an additional onsite
review of the facility and program within four years of the effective
date of the certification, unless the superintendent conditionally
certifies the school or agency or unless the superintendent receives
a formal complaint against the school or agency. In the latter two
cases, the superintendent shall conduct an onsite review at least
annually.
(f) The superintendent shall make a determination on an
application within 120 days of receipt of the application and shall
certify, conditionally certify, or deny certification to the
applicant. If the superintendent fails to take one of these actions
within 120 days, the applicant is automatically granted conditional
certification for a period terminating on August 31 of the current
school year. If certification is denied, the superintendent shall
provide reasons for the denial. The superintendent may certify the
school or agency for a period of not longer than one year.
(g) Certification becomes effective on the date the nonpublic,
nonsectarian school or agency meets all the application requirements
and is approved by the superintendent. Certification may be
retroactive if the
school or agency met all the requirements of this section on the date
the retroactive certification is effective. Certification expires on
December 31 of the terminating year.
(h) The superintendent shall annually review the certification of
each nonpublic, nonsectarian school and agency. For this purpose, a
certified school or agency shall annually update its application
between August 1 and October 31, unless the board grants a waiver
pursuant to Section 56101. The superintendent may conduct an onsite
review as part of the annual review.
(i) (1) The superintendent shall conduct an investigation of a
nonpublic, nonsectarian school or agency onsite at any time without
prior notice if there is substantial reason to believe that there is
an immediate danger to the health, safety, or welfare of a child. The
superintendent shall document the concern and submit it to the
nonpublic, nonsectarian school or agency at the time of the onsite
investigation. The superintendent shall require a written response to
any noncompliance or deficiency found.
(2) With respect to a nonpublic, nonsectarian school, the
superintendent shall conduct an investigation, which may include an
unannounced onsite visit, if the superintendent receives evidence of
a significant deficiency in the quality of educational services
provided, a violation of Section 56366.9, or noncompliance with the
policies expressed by subdivision (b) of Section 1501 of the Health
and Safety Code by the nonpublic, nonsectarian school. The
superintendent shall document the complaint and the results of the
investigation and shall provide copies of the documentation to the
complainant, the nonpublic, nonsectarian school, and the contracting
local educational agency.
(3) Violations or noncompliance documented pursuant to paragraph
(1) or (2) shall be reflected in the status of the certification of
the school, at the discretion of the superintendent, pending an
approved plan of correction by the nonpublic, nonsectarian school.
The department shall retain, for a period of 10 years, all violations
pertaining to certification of the nonpublic, nonsectarian school or
agency.
(j) The superintendent shall monitor the facilities, the
educational environment, and the quality of the educational program,
including the teaching staff, the credentials authorizing service,
the standards-based core curriculum being employed, and the standard
focused instructional materials used, of an existing certified
nonpublic, nonsectarian school or agency on a three-year cycle, as
follows:
(1) The nonpublic, nonsectarian school or agency shall complete a
self-review in year one.
(2) The superintendent shall conduct an onsite review of the
nonpublic, nonsectarian school or agency in year two.
(3) The superintendent shall conduct a followup visit to the
nonpublic, nonsectarian school or agency in year three.
(k) (1) Notwithstanding any other provision of law, the
superintendent may not certify a nonpublic, nonsectarian school or
agency that proposes to initiate or expand services to pupils
currently educated in the immediate prior fiscal year in a juvenile
court program, community school pursuant to Section 56150, or other
nonspecial education program, including independent study or adult
school, or both, unless the nonpublic, nonsectarian school or agency
notifies the county superintendent of schools and the special
education local plan area in which the proposed new or expanded
nonpublic, nonsectarian school or agency is located of its intent to
seek certification.
(2) The notification shall occur no later than the December 1
prior to the new fiscal year in which the proposed or expanding
school or agency intends to initiate services. The notice shall
include the following:
(A) The specific date upon which the proposed nonpublic,
nonsectarian school or agency is to be established.
(B) The location of the proposed program or facility.
(C) The number of pupils proposed for services, the number of
pupils currently served in the juvenile court, community school, or
other nonspecial education program, the current school services
including special education and related services provided for these
pupils, and the specific program of special education and related
services to be provided under the proposed program.
(D) The reason for the proposed change in services.
(E) The number of staff that will provide special education and
designated instruction and services and hold a current valid
California credential or license in the service rendered or
certificate of registration to provide occupational therapy.
(3) In addition to the requirements in subdivisions (a) to (f),
inclusive, the superintendent shall require and consider the
following in determining whether to certify a nonpublic, nonsectarian
school or agency as described in this subdivision:
(A) A complete statement of the information required as part of
the notice under paragraph (1).
(B) Documentation of the steps taken in preparation for the
conversion to a nonpublic, nonsectarian school or agency, including
information related to changes in the population to be served and the
services to be provided pursuant to each pupil's individualized
education program.
(4) Notwithstanding any other provision of law, the certification
becomes effective no earlier than July 1 if the school or agency
provided the notification required pursuant to paragraph (1).
(l) (1) Commencing July 1, 2006, notwithstanding any other
provision of law, the superintendent may not certify or renew the
certification of a nonpublic, nonsectarian school or agency, unless
all of the following conditions are met:
(A) The entity operating the nonpublic, nonsectarian school or
agency maintains separate financial records for each entity that it
operates, with each nonpublic, nonsectarian school or agency
identified separately from any licensed children's institution that
it operates.
(B) The entity submits an annual budget that identifies the
projected costs and revenues for each entity and demonstrates that
the rates to be charged are reasonable to support the operation of
the entity.
(C) The entity submits an entity-wide annual audit that identifies
its costs and revenues, by entity, in accordance with generally
accepted accounting and auditing principles. The audit shall clearly
document the amount of moneys received and expended on the education
program provided by the nonpublic, nonsectarian school.
(D) The relationship between various entities operated by the same
entity are documented, defining the responsibilities of the
entities. The documentation shall clearly identify the services to be
provided as part of each program, for example, the residential or
medical program, the mental health program, or the educational
program. The entity shall not seek funding from a public agency for a
service, either separately or as part of a package of services, if
the service is funded by another public agency, either separately or
as part of a package of services.
(2) For purposes of this section, the term "licensed children's
institution" has the same meaning as it is defined by Section
56155.5.
(m) The school or agency shall be charged a reasonable fee for
certification. The superintendent may adjust the fee annually
commensurate with the statewide average percentage inflation
adjustment computed for revenue limits of unified school districts
with greater than 1,500 units of average daily attendance if the
percentage increase is reflected in the district revenue limit for
inflation purposes. For purposes of this section, the base fee shall
be the following:
(1) 1-5 pupils ............... $ 300
(2) 6-10 pupils .............. 500
(3) 11-24 pupils ............. 1,000
(4) 25-75 pupils ............. 1,500
(5) 76 pupils and over ....... 2,000
The school or agency shall pay this fee when it applies for
certification and when it updates its application for annual review
by the superintendent. The superintendent shall use these fees to
conduct onsite reviews, which may include field experts. No fee shall
be refunded if the application is withdrawn or is denied by the
superintendent.
(n) (1) Notwithstanding any other provision of law, only those
nonpublic, nonsectarian schools and agencies that provide special
education and designated instruction and services utilizing staff who
hold a certificate, permit, or other document equivalent to that
which staff in a public school are required to hold in the service
rendered are eligible to receive certification. Only those nonpublic,
nonsectarian schools or agencies located outside of California that
employ staff who hold a current valid credential or license to render
special education and related services as required by that state
shall be eligible to be certified.
(2) The board shall develop regulations to implement this
subdivision.
(o) In addition to meeting the standards adopted by the board, a
nonpublic, nonsectarian school or agency shall provide written
assurances that it meets all applicable standards relating to fire,
health, sanitation, and building safety.
SEC. 49. Section 56366.11 of the Education Code is amended to
read:
56366.11.
(a) The department shall implement a program to integrate
individuals with exceptional needs placed in nonpublic, nonsectarian
schools into public schools, as appropriate. Under the program, a
pupil placed in a nonpublic, nonsectarian school and each individual
who has the right to make educational decisions for the pupil shall
be informed of all his or her rights relating to the educational
placement of the pupil. Existing dispute resolution procedures
involving public school enrollment or attendance shall be explained
to a pupil placed in a nonpublic, nonsectarian school in an age- and
developmentally appropriate manner. The Foster Child Ombudsman shall
disseminate the information on education rights to every foster child
residing in a licensed children's institution or foster family home.
(b) Following the development of the next statewide assessment
contract, the department shall submit to the Legislature a report on
the academic progress of pupils attending nonpublic, nonsectarian
schools serving individuals with exceptional needs. Using the results
of the two most recent years of the Standardized Testing and
Reporting (STAR) Program and the California Alternative Performance
Assessment, the report shall summarize by district the achievement of
all pupils attending a nonpublic, nonsectarian school. The
department shall ensure that the report does not violate the
confidentiality of individual pupil scores. In addition, the report
shall include an academic performance index score for pupils
attending nonpublic, nonsectarian schools for each district using the
same procedures as under Section 52052.
SEC. 50. Section 56505 of the Education Code is amended to read:
56505.
(a) The state hearing shall be conducted in accordance with
regulations adopted by the board.
(b) The hearing shall be held at a time and place reasonably
convenient to the parent or guardian and the pupil.
(c) The hearing shall be conducted by a person knowledgeable in
the laws and regulations governing special education and
administrative hearings pursuant to Section 56504.5, and who has
satisfactorily completed training pursuant to this subdivision. The
Superintendent shall establish standards for the training of hearing
officers, the degree of specialization of the hearing officers, and
the quality control mechanisms to be used to ensure that the hearings
are fair and the decisions are accurate. A due process hearing may
not be conducted by any individual listed in subsection (a) of
Section 300.508 of Title 34 of the Code of Federal Regulations.
Pursuant to subsection (b) of Section 300.508 of Title 34 of the Code
of Federal Regulations, a person who is qualified to conduct a
hearing is not an employee of the agency solely because he or she is
paid by the agency to serve as a hearing officer. The hearing officer
shall encourage the parties to a hearing to consider the option of
mediation as an alternative to a hearing.
(d) Pursuant to subsection (a) of Section 300.514 of Title 34 of
the Code of Federal Regulations, during the pendency of the hearing
proceedings, including the actual state-level hearing, or judicial
proceeding regarding a due process hearing, the pupil shall remain in
his or her present placement, except as provided in Section 300.526
of Title 34 of the Code of Federal Regulations, unless the public
agency and the parent or guardian agree otherwise. A pupil applying
for initial admission to a public school shall, with the consent of
his or her parent or guardian, be placed in the public school program
until all proceedings have been completed. As provided in subsection
(c) of Section 300.514 of Title 34 of the Code of Federal
Regulations, if the decision of a hearing officer in a due process
hearing or a state review official in an administrative appeal agrees
with the parent or guardian of the pupil that a change of placement
is appropriate, that placement shall be treated as an agreement
between the state or local agency and the parent or guardian.
(e) Any party to the hearing held pursuant to this section shall
be afforded the following rights consistent with state and federal
statutes and regulations:
(1) The right to be accompanied and advised by counsel and by
individuals with special knowledge or training relating to the
problems of individuals with exceptional needs.
(2) The right to present evidence, written arguments, and oral
arguments.
(3) The right to confront, cross-examine, and compel the
attendance of witnesses.
(4) The right to a written, or, at the option of the parents or
guardians, electronic verbatim record of the hearing.
(5) The right to written, or, at the option of the parent or
guardian, electronic findings of fact and decisions. The record of
the hearing and the findings of fact and decisions shall be provided
at no cost to parents or guardians in accordance with paragraph (2)
of subsection (c) of Section 300.509 of Title 34 of the Code of
Federal Regulations. The findings and decisions shall be made
available to the public after any personally identifiable information
has been deleted consistent with the confidentiality requirements of
subsection (c) of Section 1417 of Title 20 of the United States Code
and shall also be transmitted to the Advisory Commission on Special
Education pursuant to paragraph (4) of subsection (h) of Section 1415
of Title 20 of the United States Code.
(6) The right to be informed by the other parties to the hearing,
at least 10 days prior to the hearing, as to what those parties
believe are the issues to be decided at the hearing and their
proposed resolution of those issues. Upon the request of a parent
who is not represented by an attorney, the agency responsible for
conducting hearings shall provide a mediator to assist the parent in
identifying the issues and the proposed resolution of the issues.
(7) The right to receive from other parties to the hearing, at
least five business days prior to the hearing, a copy of all
documents and a list of all witnesses and their general area of
testimony that the parties intend to present at the hearing. Included
in the material to be disclosed to all parties at least five
business days prior to a hearing shall be all assessments completed
by that date and recommendations based on the assessments that the
parties intend to use at the hearing.
(8) The right, pursuant to paragraph (3) of subsection (a) of
Section 300.509 of Title 34 of the Code of Federal Regulations, to
prohibit the introduction of any evidence at the hearing that has not
been disclosed to that party at least five business days before the
hearing.
(f) The hearing conducted pursuant to this section shall be
completed and a written, reasoned decision, including the reasons for
any nonpublic, nonsectarian school placement, the provision of
nonpublic, nonsectarian agency services, or the reimbursement for
such placement or services, taking into account the requirements of
subdivision (a) of Section 56365, shall be mailed to all parties to
the hearing within 45 days from the receipt by the Superintendent of
the request for a hearing. Either party to the hearing may request
the hearing officer to grant an extension. The extension shall be
granted upon a showing of good cause. Any extension shall extend the
time for rendering a final administrative decision for a period only
equal to the length of the extension.
(g) Subdivision (f) does not alter the burden of proof required in
a due process hearing, or prevent a hearing officer from ordering a
compensatory remedy for an individual with exceptional needs.
(h) The hearing conducted pursuant to this section shall be the
final administrative determination and binding on all parties.
(i) In decisions relating to the placement of individuals with
exceptional needs, the person conducting the state hearing shall
consider cost, in addition to all other factors that are considered.
(j) In a hearing conducted pursuant to this section, the hearing
officer may not base a decision solely on nonsubstantive procedural
errors, unless the hearing officer finds that the nonsubstantive
procedural errors resulted in the loss of an educational opportunity
to the pupil or interfered with the opportunity of the parent or
guardian of the pupil to participate in the formulation process of
the individualized education program.
(k) This chapter does not preclude a party aggrieved by the
findings and decisions in a hearing under this section from
exercising the right to appeal the decision to a state court of
competent jurisdiction. An aggrieved party may also exercise the
right to bring a civil action in a district court of the United
States without regard to the amount in controversy, pursuant to
Section 300.512 of Title 34 of the Code of Federal Regulations. An
appeal shall be made within 90 days of receipt of the hearing
decision. During the pendency of any administrative or judicial
proceeding conducted pursuant to Chapter 5 (commencing with Section
56500), the child involved in the hearing shall remain in his or her
present educational placement, unless the public education agency and
the parent or guardian of the child agree otherwise. Any action
brought under this subdivision shall adhere to the provisions of
subsection (b) of Section 300.512 of Title 34 of the Code of Federal
Regulations.
(l) Any request for a due process hearing arising under
subdivision (a) of Section 56501 shall be filed within three years
from the date the party initiating the request knew or had reason to
know of the facts underlying the basis for the request.
(m) Pursuant to subsection (c) of Section 300.508 of Title 34 of
the Code of Federal Regulations, each public education agency shall
keep a list of the persons who serve as due process hearing officers,
in accordance with Section 56504.5, and the list shall include a
statement of the qualifications of each of those persons. The list of
hearing officers shall be provided to the public education agencies
by the organization or entity under contract with the department to
conduct due process hearings.
SEC. 51. Section 59052 of the Education Code is amended to read:
59052.
(a) Commencing with the 2004-05 school year, an individual may not
be hired as a certificated employee to instruct deaf pupils unless
the individual achieves a minimum score of 2.5 on the American Sign
Language Proficiency Interview (ASLPI) or an equivalent score on an
alternate test selected by the American Sign Language Competency
Evaluation Committee of the California School for the Deaf that
assesses American Sign Language linguistic competency.
(b) Commencing with the 2005-06 school year, an individual may not
be hired as a certificated employee to instruct deaf pupils unless
the individual achieves a minimum score of 3 on the ASLPI or an
equivalent score on an alternate test, as described in subdivision
(a).
(c) Commencing with the 2006-07 school year, an individual may not
be hired as a certificated employee to instruct deaf pupils unless
the individual achieves a minimum score of 3.5 on the ASLPI or an
equivalent score on an alternate test, as described in subdivision
(a).
(d) The minimum score requirements specified in subdivisions (a)
to (c), inclusive, may be waived by the superintendent of the school
if he or she certifies that no candidate who meets those requirements
and all other selection criteria has applied to instruct deaf pupils
and open positions remain.
SEC. 52. Section 66739.5 of the Education Code is amended to read:
66739.5.
(a) The Legislature finds and declares all of the following:
(1) The California Master Plan and supporting statutes place
utmost importance on the effective transfer of community college
students to the University of California (UC) and the California
State University (CSU) as a means of providing access to the
baccalaureate degree.
(2) In 2002, CSU enrolled 55,000 transfer students from community
colleges.
(3) Two out of three students who earn CSU baccalaureate degrees
begin in a community college.
(4) Effective use of state and student time and resources would be
maximized by students accruing fewer unrequired units in earning
their degrees.
(5) Additional access to community colleges and CSU will be
created by higher graduation rates and fewer nonessential units
taken.
(6) The state budget situation makes it urgent to streamline the
path of the transfer student to the baccalaureate degree.
(b) It is, therefore, the intent of the Legislature to ensure that
community college students who wish to earn the baccalaureate degree
at CSU are provided with a clear and effective path to this degree.
(c) This section shall not be construed to limit in any way the
ability of students to gain admission through alternative paths to
transfer, such as the Intersegmental General Education Transfer
Curriculum (IGETC) or the California State University General
Education-Breadth Requirements.
(d) On or before February 1, 2005, the Chancellor of CSU shall
establish transfer student admissions requirements that give highest
priority to transfer students who are qualified in accordance with
subdivision (f) and paragraph (3) of subdivision (g).
(e) (1) CSU campuses admitting students qualified in accordance
with subdivision (f) and paragraph (3) of subdivision (g) will make
it possible for these students to complete their baccalaureate degree
in the minimum number of remaining units required for that degree
major.
(2) For purposes of this subdivision, the "minimum number of
remaining units" is the minimum number of units required for a degree
major after subtracting the number of fully degree-transferable
units earned at the community college.
(f) The Chancellor of CSU, in consultation with the Academic
Senate of CSU, shall establish the following components necessary for
a clear degree path for transfer students:
(1) On or before June 1, 2005, the Chancellor of CSU, in
consultation with the Academic Senate of CSU and with the faculty
responsible for each high-demand baccalaureate degree major program,
shall specify for each high-demand baccalaureate program major a
systemwide lower division transfer curriculum composed of at least 45
semester course units, or the quarter-unit equivalent, that will be
common across all CSU campuses offering specific major programs.
(2) (A) The systemwide lower division transfer curriculum for each
high-demand baccalaureate degree major program shall be composed of
at least 45 semester units, or the quarter-unit equivalent, and shall
include all of the following:
(i) General education courses.
(ii) Any other lower division courses required for graduation.
(iii) Lower division components of the student's declared major.
(iv) Elective units, as appropriate.
(B) The coursework described in subparagraph (A) shall be
designated by the CSU faculty responsible for the student's major
degree program.
(3) The systemwide lower division transfer curriculum shall be
specified in sufficient manner and detail so that existing and future
community college lower division courses may be articulated,
according to the usual procedures, to the corresponding CSU courses
or course descriptions.
(g) (1) On or before June 1, 2006, the Chancellor of CSU and the
Chancellor of the California Community Colleges, in consultation with
the Academic Senate of the California Community Colleges, shall
articulate those lower division, baccalaureate-level courses at each
campus of the California Community Colleges that meet for each degree
major the systemwide lower division transfer curriculum requirements
specified in paragraph (1) of subdivision (f).
(2) To the extent that the goals of efficiency and urgency are
advanced, existing articulation procedures such as the California
Articulation Number (CAN) program shall be employed.
(3) On or before June 1, 2006, each CSU campus shall have
identified any additional specific, nonelective course requirements
beyond the systemwide lower division transfer curriculum requirements
for each major, up to a maximum of 60 semester units or the
quarter-unit equivalent, for the systemwide and campus-specific
requirements combined. To the extent these additional course
requirements are identified, each CSU campus shall provide that
information to all community colleges.
(4) The Chancellor of CSU shall amend CSU's transfer admissions
procedures to encourage prospective community college transfer
students to identify and, to the extent possible, commit to, a
specific CSU transfer destination campus before earning more than 45
semester units, or the quarter-unit equivalent, of lower division,
baccalaureate-level courses, as described in subdivision (f).
(h) As allowed by enrollment demand and available space, each CSU
campus shall develop a transfer admission agreement with each student
who intends to meet the requirements of this section, including the
declaration of a major and identification of a choice of a
destination campus, before earning more than 45 systemwide semester
units, or the quarter-unit equivalent. The transfer admission
agreement shall guarantee admission to the campus and major
identified in that agreement and transfer of all 60 semester units,
or the quarter-unit equivalent,
as creditable to the baccalaureate degree, subject to
the student's meeting the following conditions:
(1) Completion of the 60 semester units of college-level
coursework, or the quarter-unit equivalent, specified for the student'
s major degree program.
(2) Declaration of a major.
(3) Satisfactory completion of the systemwide lower division
transfer curriculum requirements for the student's declared major.
(4) Satisfactory completion of any requirements beyond the
systemwide lower division transfer curriculum that are specified by
the CSU destination campus.
(5) Any impaction criteria for that campus or major.
(i) A CSU campus shall guarantee that the transfer students
admitted under this section will be able to complete the
baccalaureate degree in the minimum number of course units required
for that degree.
SEC. 53. Section 71093 of the Education Code is amended to read:
71093.
Notwithstanding any other provision of law:
(a) The board of governors may authorize the chancellor to
suspend, for a period of up to one year, the authority of the Board
of Trustees of the Compton Community College District, or of any of
the members of that board, to exercise any powers or responsibilities
or to take any official actions with respect to the management of
the district, including any of the district's assets, contracts,
expenditures, facilities, funds, personnel, or property. With the
prior approval of the board of governors, the chancellor may renew a
suspension under this section as many times, and as often, as he or
she finds it necessary during the period of operation of this
section.
(b) A suspension authorized by this section becomes effective
immediately upon the delivery of a document to the administrative
offices of the Compton Community College District that sets forth the
finding of the chancellor that a suspension pursuant to this section
is necessary for the establishment of fiscal integrity and security
in that district.
(c) If and when the chancellor suspends the authority of the Board
of Trustees of the Compton Community College District or any of its
members pursuant to this section, the chancellor may appoint a
special trustee as provided in paragraph (3) of subdivision (c) of
Section 84040, at district expense, to manage the district. The
chancellor is authorized to assume, and delegate to the special
trustee, those powers and duties of the Board of Trustees of the
Compton Community College District that the chancellor determines,
with the approval of the board of governors, are necessary for the
management of that district. The Board of Trustees of the Compton
Community College District may not exercise any of the duties or
powers assumed by the chancellor under this section. The chancellor
may appoint as a special trustee under this section a person who has
served in a similar capacity prior to the enactment of the act that
adds this section. A special trustee appointed under this section
shall serve at the pleasure of the chancellor.
(d) This section shall remain in effect only until January 1,
2008, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2008, deletes or extends
that date.
SEC. 54. Section 89539.2 of the Education Code is amended to read:
89539.2.
(a) Any party claiming that his or her request for discovery
pursuant to Section 89539.1 has not been complied with may serve and
file a petition to compel discovery with the Hearing Office of the
State Personnel Board, naming as the respondent the party refusing or
failing to comply with Section 89539.1. The petition shall state
facts showing that the respondent failed or refused to comply with
Section 89539.1, a description of the matters sought to be
discovered, the reason or reasons why the matter is discoverable
under Section 89539.1, and the ground or grounds for the respondent's
refusal so far as known to the petitioner.
(b) (1) The petition shall be served upon the respondent, and
filed within 14 days after the respondent first evidenced his or her
failure or refusal to comply with Section 89539.1, or within 30 days
after the request was made and the party has failed to reply to the
request, whichever period is longer. However, no petition may be
filed within 15 days of the date set for commencement of the
administrative hearing, except upon a petition and a determination by
the administrative law judge of good cause. In determining good
cause, the administrative law judge shall consider the necessity and
reasons for the discovery, the diligence or lack of diligence of the
moving party, whether the granting of the petition will delay the
commencement of the administrative hearing on the date set, and the
possible prejudice of the action to any party.
(2) The respondent shall have a right to file a written answer to
the petition. Any answer shall be filed with the Hearing Office of
the State Personnel Board and the petitioner within 15 days of
service of the petition.
(3) Unless otherwise stipulated by the parties and as provided by
this section, the administrative law judge shall review the petition
and any response filed by the respondent, and issue a decision
granting or denying the petition within 20 days after the filing of
the petition. Nothing in this section shall preclude the
administrative law judge from determining that an evidentiary hearing
shall be conducted prior to the issuance of a decision on the
petition. In the event that a hearing is ordered, the decision of the
administrative law judge shall be issued within 20 days of the
closing of the hearing.
(4) A party aggrieved by the decision of the administrative law
judge may, within 30 days of service of the decision, file a petition
to compel discovery in the superior court for the county in which
the administrative hearing will be held or in the county in which the
headquarters of the trustees is located. The petition shall be
served on the respondent.
(c) If, from a reading of the petition, the court is satisfied
that the petition sets forth good cause for relief, the court shall
issue an order to show cause directed to the respondent; otherwise
the court shall enter an order denying the petition. The order to
show cause shall be served upon the respondent and his or her
attorney of record in the administrative proceeding by personal
delivery or certified mail, and shall be returnable no earlier than
10 days from its issuance nor later than 30 days after the filing of
the petition. The respondent shall have the right to serve and file a
written answer or other response to the petition and order to show
cause.
(d) The court may, in its discretion, order the administrative
proceeding stayed during the pendency of the proceeding, and, if
necessary, for a reasonable time thereafter to afford the parties
time to comply with the court order.
(e) If the matter sought to be discovered is under the custody or
control of the respondent and the respondent asserts that the matter
is not a discoverable matter under Section 89539.1, or is privileged
against disclosure under Section 89539.1, the court may order lodged
with it matters that are provided in subdivision (b) of Section 915
of the Evidence Code, and shall examine the matters in accordance
with the provisions thereof.
(f) The court shall decide the case on the matters examined by the
court in camera, the papers filed by the parties, and any oral
argument and additional evidence as the court may allow.
(g) Unless otherwise stipulated by the parties, the court shall,
no later than 45 days after the filing of the petition, file its
order denying or granting the petition. However, the court may, on
its own motion, for good cause, extend the time an additional 45
days. The order of the court shall be in writing, setting forth the
matters or parts the petitioner is entitled to discover under Section
89539.1. A copy of the order shall forthwith be served by mail by
the clerk upon the parties. If the order grants the petition in whole
or in part, the order shall not become effective until 10 days after
the date the order is served by the clerk. If the order denies
relief to the petitioning party, the order shall be effective on the
date it is served by the clerk.
(h) (1) The order of the superior court shall be final and, except
for this subdivision, shall not be subject to review by appeal. A
party aggrieved by the order, or any part thereof, may, within 30
days after the service of the superior court's order, serve and file
in the district court of appeal for the district in which the
superior court is located, a petition for a writ of mandamus to
compel the superior court to set aside, or otherwise modify, its
order.
(2) If a review is sought from an order granting discovery, the
order of the trial court and the administrative proceeding shall be
stayed upon the filing of the petition for writ of mandamus. However,
the court of appeal may dissolve or modify the stay thereafter, if
it is in the public interest to do so. If the review is sought from a
denial of discovery, neither the trial court's order nor the
administrative proceeding shall be stayed by the court of appeal
except upon a clear showing of probable error.
(i) If the superior court finds that a party or his or her
attorney, without substantial justification, failed or refused to
comply with Section 89539.1, or, without substantial justification,
filed a petition to compel discovery pursuant to this section, or,
without substantial justification, failed to comply with any order of
court made pursuant to this section, the court may award court costs
and reasonable attorney's fees to the opposing party. Nothing in
this subdivision shall limit the power of the superior court to
compel obedience to its orders by contempt proceedings.
SEC. 55. Section 94742.3 of the Education Code is amended to read:
94742.3.
"Short-term education program" means an educational service
meeting all of the following criteria:
(a) The total charge to the student is more than five hundred
dollars ($500) and not more than two thousand dollars ($2,000).
(b) The length of training is 250 hours or less.
(c) The service is not any of the following:
(1) Instruction leading to a degree.
(2) Instruction financed by a federal or state loan or grant.
(3) Any educational service that was originally longer than 250
hours or cost more than two thousand dollars ($2,000), but has been
structured into segments to meet the requirement of subdivision (a).
(d) The service is offered by approved institutions or
institutions registered pursuant to Article 9.5 (commencing with
Section 94931).
SEC. 56. Section 94931 of the Education Code is amended to read:
94931.
(a) No private postsecondary educational institution, except those
offering degrees and approved under Article 8 (commencing with
Section 94900) or offering vocational and nondegree granting programs
and approved under Article 9 (commencing with Section 94915), or
those that are exempt from this chapter, may offer educational
services or programs or short-term educational programs unless the
institution has been registered by the bureau as meeting the
requirements of this article.
(b) An institution approved to offer degrees under Article 8
(commencing with Section 94900) or approved to offer vocational and
nondegree granting programs under Article 9 (commencing with Section
94915) may offer registered short-term education programs without
affecting its status under either of those articles so long as the
registered short-term education program is disclosed in its approval
to operate application or the institution completes a registration
application and receives specific authorization for the program,
maintains compliance for all registered programs in conformity with
this article, and maintains a set of student records for registered
programs separate from its approved programs. Any registered
institution that offers an educational program not specified in
subdivision (c) or not otherwise exempt from this chapter shall be
approved under Article 8 (commencing with Section 94900) or Article 9
(commencing with Section 94915) and shall comply with this chapter.
(c) Except as otherwise provided in this article, this chapter
does not apply to an educational service that qualifies for
registration status and that complies with this article. The
educational services that qualify for registration status are limited
to:
(1) An educational service, as described in Section 94733, that is
offered to provide an intensive English language program.
(2) An educational service, as described in Section 94742.1, that
is offered to provide short-term career training.
(3) An educational service, as described in Section 94742.3, that
is offered to provide short-term seminar training.
(4) An educational service that is offered to assist students to
prepare for an examination for licensure, except as provided in
Section 94787.
(5) An educational service that consists of continuing education
not otherwise exempt from this chapter.
(d) An institution that qualifies under any of paragraphs (1) to
(4), inclusive, of subdivision (c) shall complete a registration form
provided by the bureau, including a signed declaration by the chief
executive officer of the institution under penalty of perjury, and
provide all of the following information for public disclosure:
(1) The owner's legal name, headquarters address, and the name of
an agent for the service of process within California.
(2) All names, whether real or fictitious, under which the owner
is doing and will do business.
(3) The names and addresses of the principal officers of the
institution.
(4) A list of all California locations at which the institution
operates, its offerings, and, if previously registered, the number of
students enrolled in California during the preceding year.
(5) A copy of the registration form or agreement that enrolls the
student in the educational service that contains all of the
following:
(A) The name and address of the location where instruction will be
provided.
(B) The title of the educational program.
(C) The total amount the student is obligated to pay for the
educational service.
(D) A clear and conspicuous statement that the enrollment form or
agreement is a legally binding instrument when signed by the student
and accepted by the institution.
(E) The refund policy developed by the institution unless this
article specifies a different refund policy.
(F) Unless this article specifies that the institution is required
to participate in the Student Tuition Recovery Fund, a statement
that the institution does not participate in that fund.
(G) In 10-point boldface type or larger, the following statement:
"Any questions or problems concerning this school that have not been
satisfactorily answered or resolved by the school should be directed
to the Bureau for Private Postsecondary and Vocational Education in
the Department of Consumer Affairs (insert city, address, CA ZIP Code
number, and telephone number)."
(H) Schools approved under paragraph (1) of subdivision (c) of
Section 94931 shall also include with the statement required by
subparagraph (G) information referring the student to a consulate of
his or her country and the United States Immigration and
Naturalization Service.
(6) A brochure or catalog and a sample advertisement used to
promote the educational service.
(7) A copy of its certificate of completion.
(8) If the educational service offers short-term career training,
the institution shall comply with the requirements of Sections 94804
and 94806.
(9) If the institution assists students in obtaining financing
from a third party for the cost of the educational services at the
institution, a copy of the contract or finance agreement reflecting
that financing.
(e) The bureau shall establish the initial registration fee and
the annual fee to be paid by institutions registered under this
article. No institution shall be registered pursuant to this article
unless it has paid the appropriate fees required by the bureau. Upon
receipt of an institution's initial application for registration for
a program, the bureau may conduct a site visit pursuant to
subdivision (c) of Section 94915.
(f) For the purposes of communication with other state agencies,
any organization or individual registered to offer short-term seminar
training may state that he, she, or it is "authorized" by the State
of California.
(g) (1) Except as provided by subdivision (f), any institution
registered pursuant to this article shall be restricted to stating
that its training is "registered" with the State of California and is
prohibited from using the words "approval," "approved," "approval to
operate," "approved to operate," "authorized," "licensed," or
"licensed to operate."
(2) The institution shall place the following statement in all
brochures, catalogues, enrollment agreements, and registration forms,
in a conspicuous location in at least 12-point boldfaced type:
"We are registered with the State of California. Registration
means we have met certain minimum standards imposed by the state for
registered schools on the basis of our written application to the
state. Registration does not mean we have met all of the more
extensive standards required by the state for schools that are
approved to operate or licensed or that the state has verified the
information we submitted with our registration form."
(h) The bureau may require, at least every three years following
the initial registration date, that a registered institution verify
all or part of the information required to be provided with the
registration form under subdivision (d).
(i) Sections 94812 and 94818, Sections 94822 to 94825, inclusive,
Sections 94829 to 94838, inclusive, and Sections 94841 and 94846
apply to any institution registered pursuant to this article.
(j) Article 1 (commencing with Section 94700), Article 2
(commencing with Section 94710), Article 3 (commencing with Section
94750), Article 3.5 (commencing with Section 94760), Article 4
(commencing with Section 94770), and Article 13 (commencing with
Section 94950) apply to any institution registered pursuant to this
article.
SEC. 57. Section 99235 of the Education Code is amended to read:
99235.
(a) The Superintendent of Public Instruction shall notify local
educational agencies that they are eligible to receive funding to
provide instructional aides and paraprofessionals who directly assist
with classroom instruction in mathematics and reading with
professional development training in mathematics and reading, in an
amount equal to one thousand dollars ($1,000) per qualifying
instructional aide. Funding will be provided to local educational
agencies on a first-come, first-served basis. A local educational
agency that chooses to participate in the program is eligible to
receive funding for no greater than the percentage calculated in
accordance with provisions of an item of appropriation in the annual
Budget Act for its instructional aides and paraprofessionals.
However, the statewide total number of instructional aides and
paraprofessionals who directly assist with classroom instruction in
mathematics and reading served under this program may not exceed
9,600 over the two fiscal years.
(b) Of the incentive provided pursuant to subdivision (a), a local
educational agency may not use more than five hundred dollars ($500)
of the amount per instructional aide and paraprofessional who
directly assists with classroom instruction in mathematics and
reading to provide an individual instructional aide stipend.
SEC. 58. Section 9042 of the Elections Code is amended to read:
9042.
If a measure submitted to the voters by the Legislature was not
adopted unanimously, one Member of the Senate who voted against it
shall be appointed by the President pro Tempore of the Senate and one
Member of the Assembly who voted against it shall be appointed by
the Speaker of the Assembly, at the same time as appointments to
draft an argument in its favor are made, to write an argument against
the measure. An argument shall not exceed 500 words.
If those members appointed to write an argument against the
measure choose, each may write a separate argument opposing it, but
the combined length of the two arguments shall not exceed 500 words.
SEC. 59. Section 299.3 of the Family Code is amended to read:
299.3.
(a) On or before June 30, 2004, and again on or before December 1,
2004, and again on or before January 31, 2005, the Secretary of
State shall send the following letter to the mailing address on file
of each registered domestic partner who registered more than one
month prior to each of those dates: "Dear Registered Domestic
Partner:
This letter is being sent to all persons who have registered with
the Secretary of State as a domestic partner.
Effective January 1, 2005, California's law related to the rights
and responsibilities of registered domestic partners will change (or,
if you are receiving this letter after that date, the law has
changed, as of January 1, 2005). With this new legislation, for
purposes of California law, domestic partners will have a great many
new rights and responsibilities, including laws governing community
property, those governing property transfer, those regarding duties
of mutual financial support and mutual responsibilities for certain
debts to third parties, and many others. The way domestic
partnerships are terminated is also changing. After January 1, 2005,
under certain circumstances, it will be necessary to participate in a
dissolution proceeding in court to end a domestic partnership.
Domestic partners who do not wish to be subject to these new
rights and responsibilities MUST terminate their domestic partnership
before January 1, 2005. Under the law in effect until January 1,
2005, your domestic partnership is automatically terminated if you or
your partner marry or die while you are registered as domestic
partners. It is also terminated if you send to your partner or your
partner sends to you, by certified mail, a notice terminating the
domestic partnership, or if you and your partner no longer share a
common residence. In all cases, you are required to file a Notice of
Termination of Domestic Partnership.
If you do not terminate your domestic partnership before January
1, 2005, as provided above, you will be subject to these new rights
and responsibilities and, under certain circumstances, you will only
be able to terminate your domestic partnership, other than as a
result of your domestic partner's death, by the filing of a court
action.
Further, if you registered your domestic partnership with the
state prior to January 1, 2005, you have until June 30, 2005, to
enter into a written agreement with your domestic partner that will
be enforceable in the same manner as a premarital agreement under
California law, if you intend to be so governed.
If you have any questions about any of these changes, please
consult an attorney. If you cannot find an attorney in your locale,
please contact your county bar association for a
referral.Sincerely,The Secretary of State"
(b) From January 1, 2004, to December 31, 2004, inclusive, the
Secretary of State shall provide the following notice with all
requests for the Declaration of Domestic Partnership form. The
Secretary of State also shall attach the Notice to the Declaration of
Domestic Partnership form that is provided to the general public on
the Secretary of State's Web site:
"NOTICE TO POTENTIAL DOMESTIC PARTNER REGISTRANTS
As of January 1, 2005, California's law of domestic partnership
will change.
Beginning at that time, for purposes of California law, domestic
partners will have a great many new rights and responsibilities,
including laws governing community property, those governing property
transfer, those regarding duties of mutual financial support and
mutual responsibilities for certain debts to third parties, and many
others. The way domestic partnerships are terminated will also
change. Unlike current law, which allows partners to end their
partnership simply by filing a "Termination of Domestic Partnership"
form with the Secretary of State, after January 1, 2005, it will be
necessary under certain circumstances to participate in a dissolution
proceeding in court to end a domestic partnership.
If you have questions about these changes, please consult an
attorney. If you cannot find an attorney in your area, please contact
your county bar association for a referral."
SEC. 60. Section 420 of the Family Code is amended to read:
420.
(a) No particular form for the ceremony of marriage is required
for solemnization of the marriage, but the parties shall declare, in
the presence of the person solemnizing the marriage and necessary
witnesses, that they take each other as husband and wife.
(b) Notwithstanding subdivision (a), a member of the Armed Forces
of the United States who is stationed overseas and serving in a
conflict or a war and is unable to appear for the licensure and
solemnization of the marriage may enter into that marriage by the
appearance of an attorney-in-fact, commissioned and empowered in
writing for that purpose through a power of attorney. The
attorney-in-fact must personally appear at the county clerk's office
with the party who is not stationed overseas, and present the
original power of attorney duly signed by the party stationed
overseas and acknowledged by a notary or witnessed by two officers of
the United States Armed Forces. The power of attorney shall state
the true legal names of the parties to be married, and that the power
of attorney is solely for the purpose of authorizing the
attorney-in-fact to obtain a marriage license on the person's behalf
and participate in the solemnization of the marriage. The original
power of attorney shall be a part of the marriage certificate upon
registration.
(c) No contract of marriage, if otherwise duly made, shall be
invalidated for want of conformity to the requirements of any
religious sect.
SEC. 61. Section 2024.6 of the Family Code is amended to read:
2024.6.
(a) Upon request by a party to a petition for dissolution of
marriage, nullity of marriage, or legal separation, the court shall
order a pleading that lists the parties' financial assets and
liabilities and provides the location or identifying information
about those assets and liabilities sealed. The
request may be made by ex parte application.
Nothing sealed pursuant to this section may be unsealed except upon
petition to the court and good cause shown.
(b) Commencing not later than July 1, 2005, the Judicial Council
form used to declare assets and liabilities of the parties in a
proceeding for dissolution of marriage, nullity of marriage, or legal
separation of the parties shall require the party filing the form to
state whether the declaration contains identifying information on
the assets and liabilities listed therein. If the party making the
request uses a pleading other than the Judicial Council form, the
pleading shall exhibit a notice on the front page, in bold capital
letters, that the pleading lists and identifies financial information
and is therefore subject to this section.
(c) For purposes of this section, "pleading" means a document that
sets forth or declares the parties' assets and liabilities, income
and expenses, a marital settlement agreement that lists and
identifies the parties' assets and liabilities, or any document filed
with the court incidental to the declaration or agreement that lists
and identifies financial information.
(d) The party making the request to seal a pleading pursuant to
subdivision (a) shall serve a copy of the pleading on the other party
to the proceeding and file a proof of service with the request to
seal the pleading.
(e) Nothing in this section precludes a party to a proceeding
described in this section from using any document or information
contained in a sealed pleading in any manner that is not otherwise
prohibited by law.
SEC. 62. Section 3111 of the Family Code is amended to read:
3111.
(a) In any contested proceeding involving child custody or
visitation rights, the court may appoint a child custody evaluator to
conduct a child custody evaluation in cases where the court
determines it is in the best interests of the child. The child
custody evaluation shall be conducted in accordance with the
standards adopted by the Judicial Council pursuant to Section 3117,
and all other standards adopted by the Judicial Council regarding
child custody evaluations. If directed by the court, the
court-appointed child custody evaluator shall file a written
confidential report on his or her evaluation. At least 10 days before
any hearing regarding custody of the child, the report shall be
filed with the clerk of the court in which the custody hearing will
be conducted and served on the parties or their attorneys, and any
other counsel appointed for the child pursuant to Section 3150. The
report may be considered by the court.
(b) The report shall not be made available other than as provided
in subdivision (a), or as described in Section 204 of the Welfare and
Institutions Code or Section 1514.5 of the Probate Code. Any
information obtained from access to a juvenile court case file, as
defined in subdivision (e) of Section 827 of the Welfare and
Institutions Code, is confidential and shall only be disseminated as
provided by paragraph (4) of subdivision (a) of Section 827 of the
Welfare and Institutions Code.
(c) The report may be received in evidence on stipulation of all
interested parties and is competent evidence as to all matters
contained in the report.
SEC. 63. Section 6341 of the Family Code is amended to read:
6341.
(a) If the parties are married to each other and no other child
support order exists or if there is a presumption under Section 7611
that the respondent is the natural father of a minor child and the
child is in the custody of the petitioner, after notice and a
hearing, the court may, if requested by the petitioner, order a party
to pay an amount necessary for the support and maintenance of the
child if the order would otherwise be authorized in an action brought
pursuant to Division 9 (commencing with Section 3500) or the Uniform
Parentage Act (Part 3 (commencing with Section 7600) of Division
12). When determining whether to make any orders under this
subdivision, the court shall consider whether failure to make any of
these orders may jeopardize the safety of the petitioner and the
children for whom child support is requested, including safety
concerns related to the financial needs of the petitioner and the
children. The Judicial Council shall provide notice of this provision
on any Judicial Council forms related to this subdivision.
(b) An order issued pursuant to subdivision (a) of this section
shall be without prejudice in an action brought pursuant to the
Uniform Parentage Act (Part 3 (commencing with Section 7600) of
Division 12).
(c) If the parties are married to each other and no spousal
support order exists, after notice and a hearing, the court may order
the respondent to pay spousal support in an amount, if any, that
would otherwise be authorized in an action pursuant to Part 1
(commencing with Section 3500) or Part 3 (commencing with Section
4300) of Division 9. When determining whether to make any orders
under this subdivision, the court shall consider whether failure to
make any of these orders may jeopardize the safety of the petitioner,
including safety concerns related to the financial needs of the
petitioner. The Judicial Council shall provide notice of this
provision on any Judicial Council forms related to this subdivision.
(d) An order issued pursuant to subdivision (c) shall be without
prejudice in a proceeding for dissolution of marriage, nullity of
marriage, or legal separation of the parties.
SEC. 64. Section 14252 of the Financial Code is amended to read:
14252.
(a) A credit union with total assets equal to or greater than ten
million dollars ($10,000,000) shall, within 105 days after the end of
each fiscal year or within any extended time that the commissioner
may specify, file with the commissioner an audit report for the
fiscal year.
(b) The audit report called for in subdivision (a) shall comply
with all of the following provisions:
(1) The audit report shall contain the audited financial
statements of the credit union for, or as of the end of, the fiscal
year, prepared in accordance with generally accepted accounting
principles that the commissioner may specify, and any other
information that the commissioner may specify.
(2) The audit report shall be based upon an audit of the credit
union, conducted in accordance with generally accepted auditing
standards, and any other requirements that the commissioner may
specify.
(3) The audit report shall be prepared by an independent certified
public accountant or independent public accountant who is acceptable
to the commissioner.
(4) The audit report shall include, or be accompanied by, a
certificate or opinion of the independent certified public accountant
or independent public accountant that is satisfactory in form and
content to the commissioner. If the certificate or opinion is
qualified, the commissioner may order the credit union to take any
action that the commissioner may find necessary or advisable to
enable the independent certified public accountant or independent
public accountant to remove the qualification.
(c) A credit union with total assets of less than ten million
dollars ($10,000,000) shall, within 105 days after the end of each
fiscal year or within any extended time that the commissioner may
specify, file with the commissioner an audit report for the fiscal
year.
(d) The audit report called for in subdivision (c) may comply with
all the provisions of subdivision (b), or may consist of alternative
procedures acceptable to the commissioner. An alternative procedures
audit may be performed by any of the following:
(1) An independent certified public accountant.
(2) An independent public accountant.
(3) The credit union's supervisory committee, provided that the
audit complies with the requirements of Section 14253.
(e) Notwithstanding subdivision (d), the commissioner may reject
an alternative procedures audit that he or she determines is not
satisfactory. If the commissioner rejects an alternative procedures
audit for any reason, he or she may order a credit union to obtain an
audit that is satisfactory to the commissioner.
(f) The commissioner may, by order or regulation, either
unconditionally or upon specified terms and conditions, grant an
exemption from this section in any case where the commissioner finds
that the requirements of this section are not necessary or advisable.
SEC. 65. Section 1053 of the Fish and Game Code is amended to
read:
1053.
No person shall obtain more than one license, permit, reservation,
or other entitlement of the same class, or more than the number of
tags authorized by statute or regulation for the same license year,
except under one of the following conditions:
(a) Licenses issued pursuant to paragraphs (3), (4), and (5) of
subdivision (a) of Section 7149, paragraphs (3), (4), and (5) of
subdivision (a) of Section 7149.05, and paragraphs (4) and (5) of
subdivision (a) of Section 3031.
(b) The loss or destruction of an unexpired license, tag, permit,
reservation, or other entitlement as certified by the applicant's
signed affidavit and proof, as determined by the department, that the
original license, tag, permit, reservation, or other entitlement was
issued, and payment of a base fee of five dollars ($5), adjusted
pursuant to Section 713, not to exceed the fee for the original
entitlement.
(c) The adjustment of the base fee pursuant to Section 713 applies
to the hunting license years commencing on or after July 1, 1996,
and the fishing license years commencing on or after January 1, 1996.
SEC. 66. Section 1363.5 of the Fish and Game Code is amended to
read:
1363.5.
(a) Commencing on June 30, 2003, and every two years thereafter,
the board shall report to the Legislature and the Governor concerning
the activities and expenditures of the fund.
(b) (1) In the first report to the Legislature, the board shall
provide its best estimate of the total amount, in terms of acreage,
species, and coverage, of oak woodlands habitat purchased with funds
from the Habitat Conservation Fund and other funds pursuant to the
California Wildlife Protection Act of 1990 (Chapter 9 (commencing
with Section 2780) of Division 3).
(2) In each subsequent report, the board shall update the
information required by paragraph (1) to reflect additional oak
woodlands habitat purchased with funds from the Habitat Conservation
Fund pursuant to Chapter 9 (commencing with Section 2780) of Division
3, and any purchases made with moneys deposited in the Oak Woodlands
Conservation Fund.
(c) The board shall provide its best estimate in each report of
the acreage, cover, and species of oak woodlands habitat purchased
with all moneys from the Safe Neighborhood Parks, Clean Water, Clean
Air, and Coastal Protection Bond Fund.
(d) The board shall make all information available online at its
Web site.
(e) This section shall become inoperative on July 1, 2020, and, as
of January 1, 2021, is repealed, unless a later enacted statute that
is enacted before January 1, 2021, deletes or extends the dates on
which it becomes inoperative and is repealed.
SEC. 67. Section 8494 of the Fish and Game Code is amended to
read:
8494.
(a) Commencing April 1, 2006, any vessel using bottom trawl gear
in state-managed halibut fisheries, as described in subdivision (a)
of Section 8841, shall possess a halibut bottom trawl permit issued
by the department that authorizes the use of trawl gear by that
vessel for the take of California halibut. An application for a
California halibut bottom trawl vessel permit for the 2006-07 season
shall be received by the department not later than January 1, 2006.
(b) A halibut bottom trawl vessel permit shall be issued annually,
commencing with the 2006 permit year. Commencing with the 2007-08
season, in order to be eligible for that permit, an applicant shall
have previously held a valid California halibut bottom trawl vessel
permit.
(c) The department shall not issue a bottom trawl vessel permit
pursuant to this section for use in the halibut fishery unless that
vessel has landed a minimum of 200 pounds of California halibut and
reported that landing on fish tickets as being caught with bottom
trawl gear in at least one of the following:
(1) At least two of the calendar years 1995 to 2003, inclusive.
(2) At least one of the calendar years 1995 to 2003, inclusive,
and from January 1, 2004, to February 19, 2004, inclusive.
(d) Permits issued pursuant to this section may be transferred
only if at least one of the following occurs:
(1) The commission adopts a restricted access program for the
fishery, including, but not limited to, if necessary, a plan for
reducing capacity in this fishery in a manner that is consistent with
the commission's policies regarding restricted access to commercial
fisheries.
(2) Prior to the implementation of a restricted access program,
the permit is transferred to another vessel owned by the same
permitholder of equal or less capacity, as determined by the
department based on the United States Coast Guard documentation
papers, and if the originally permitted vessel was lost, stolen,
destroyed, or suffered a major irreparable mechanical breakdown. The
department may not issue a permit for a replacement vessel if the
department determines that the originally permitted vessel was
fraudulently reported as lost, stolen, destroyed, or damaged. Only
the permitholder at the time of the loss, theft, destruction, or
irreparable mechanical breakdown of a vessel may apply to transfer
the vessel permit. Evidence that a vessel is lost, stolen, or
destroyed shall be in the form of a copy of the report filed with the
United States Coast Guard, or any other law enforcement agency or
fire department that conducted an investigation of the loss.
(3) Prior to the implementation of a halibut trawl restricted
access program, a vessel permitholder, or his or her heirs or
assigns, requests to transfer the permit because of the death or
permanent disability of the permitholder or the decision by the
permitholder to retire from fishing upon reaching or exceeding the
age of 65 years, and halibut landings contributed significantly to
the catch record and economic income derived from the vessel, and the
permit is authorized by the department to be transferred with the
vessel. The department may request information that it determines is
reasonably necessary from the permitholder or his or her heirs and
assigns for the purpose of verifying statements in the request prior
to authorizing the transfer of the permit.
(e) The commission shall establish California halibut bottom trawl
vessel permit fees based on the recommendations of the department
and utilizing the guidelines outlined in subdivision (b) of Section
711 to cover the costs of administering this section. Prior to the
adoption of a restricted access program pursuant to subdivision (d),
fees may not exceed one thousand dollars ($1,000) per permit.
(f) Individuals holding a federal groundfish trawl permit may
retain and land up to 150 pounds of California halibut per trip
without a California halibut trawl permit in accordance with federal
and state regulations, including, but not limited to, regulations
developed under a halibut fishery management plan.
(g) This section shall become inoperative upon the adoption by the
commission of a halibut fishery management plan in accordance with
the requirements of Part 1.7 (commencing with Section 7050).
SEC. 68. Section 77253 of the Food and Agricultural Code is
amended to read:
77253.
The commission or the secretary may bring an action for judicial
relief from the secretary's written notice, or from noncompliance by
the commission with the written notice, as the case may be, in a
court of competent jurisdiction, which may issue a temporary
restraining order, permanent injunction, or other applicable relief.
SEC. 69. Section 77265 of the Food and Agricultural Code is
amended to read:
77265.
The secretary or his or her representative shall be notified and
may attend each meeting of the commission and any committee meeting
of the commission.
SEC. 70. Section 3309.5 of the Government Code is amended to read:
3309.5.
(a) It shall be unlawful for any public safety department to deny
or refuse to any public safety officer the rights and protections
guaranteed to him or her by this chapter.
(b) Nothing in subdivision (h) of Section 11181 shall be construed
to affect the rights and protections afforded to state public safety
officers under this chapter or under Section 832.5 of the Penal
Code.
(c) The superior court shall have initial jurisdiction over any
proceeding brought by any public safety officer against any public
safety department for alleged violations of this chapter.
(d) (1) In any case where the superior court finds that a public
safety department has violated any of the provisions of this chapter,
the court shall render appropriate injunctive or other extraordinary
relief to remedy the violation and to prevent future violations of a
like or similar nature, including, but not limited to, the granting
of a temporary restraining order, preliminary injunction, or
permanent injunction prohibiting the public safety department from
taking any punitive action against the public safety officer.
(2) If the court finds that a bad faith or frivolous action or a
filing for an improper purpose has been brought pursuant to this
chapter, the court may order sanctions against the party filing the
action, the party's attorney, or both, pursuant to Sections 128.6 and
128.7 of the Code of Civil Procedure. Those sanctions may include,
but not be limited to, reasonable expenses, including attorney's
fees, incurred by a public safety department as the court deems
appropriate. Nothing in this paragraph is intended to subject actions
or filings under this section to rules or standards that are
different from those applicable to other civil actions or filings
subject to Section 128.6 or 128.7 of the Code of Civil Procedure.
(e) In addition to the extraordinary relief afforded by this
chapter, upon a finding by a superior court that a public safety
department, its employees, agents, or assigns, with respect to acts
taken within the scope of employment, maliciously violated any
provision of this chapter with the intent to injure the public safety
officer, the public safety department shall, for each and every
violation, be liable for a civil penalty not to exceed twenty-five
thousand dollars ($25,000) to be awarded to the public safety officer
whose right or protection was denied and for reasonable attorney's
fees as may be determined by the court. If the court so finds, and
there is sufficient evidence to establish actual damages suffered by
the officer whose right or protection was denied, the public safety
department shall also be liable for the amount of the actual damages.
Notwithstanding these provisions, a public safety department may not
be required to indemnify a contractor for the contractor's liability
pursuant to this subdivision if there is, within the contract
between the public safety department and the contractor, a "hold
harmless" or similar provision that protects the public safety
department from liability for the actions of the contractor. An
individual shall not be liable for any act for which a public safety
department is liable under this section.
SEC. 71. Section 6254 of the Government Code is amended to read:
6254.
Except as provided in Sections 6254.7 and 6254.13, nothing in this
chapter shall be construed to require disclosure of records that are
any of the following:
(a) Preliminary drafts, notes, or interagency or intra-agency
memoranda that are not retained by the public agency in the ordinary
course of business, provided that the public interest in withholding
those records clearly outweighs the public interest in disclosure.
(b) Records pertaining to pending litigation to which the public
agency is a party, or to claims made pursuant to Division 3.6
(commencing with Section 810), until the pending litigation or claim
has been finally adjudicated or otherwise settled.
(c) Personnel, medical, or similar files, the disclosure of which
would constitute an unwarranted invasion of personal privacy.
(d) Contained in or related to any of the following:
(1) Applications filed with any state agency responsible for the
regulation or supervision of the issuance of securities or of
financial institutions, including, but not limited to, banks, savings
and loan associations, industrial loan companies, credit unions, and
insurance companies.
(2) Examination, operating, or condition reports prepared by, on
behalf of, or for the use of, any state agency referred to in
paragraph (1).
(3) Preliminary drafts, notes, or interagency or intra-agency
communications prepared by, on behalf of, or for the use of, any
state agency referred to in paragraph (1).
(4) Information received in confidence by any state agency
referred to in paragraph (1).
(e) Geological and geophysical data, plant production data, and
similar information relating to utility systems development, or
market or crop reports, that are obtained in confidence from any
person.
(f) Records of complaints to, or investigations conducted by, or
records of intelligence information or security procedures of, the
office of the Attorney General and the Department of Justice, and any
state or local police agency, or any investigatory or security files
compiled by any other state or local police agency, or any
investigatory or security files compiled by any other state or local
agency for correctional, law enforcement, or licensing purposes,
except that state and local law enforcement agencies shall disclose
the names and addresses of persons involved in, or witnesses other
than confidential informants to, the incident, the description of any
property involved, the date, time, and location of the incident, all
diagrams, statements of the parties involved in the incident, the
statements of all witnesses, other than confidential informants, to
the victims of an incident, or an authorized representative thereof,
an insurance carrier against which a claim has been or might be made,
and any person suffering bodily injury or property damage or loss,
as the result of the incident caused by arson, burglary, fire,
explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or
a crime as defined by subdivision (b) of Section 13951, unless the
disclosure would endanger the safety of a witness or other person
involved in the investigation, or unless disclosure would endanger
the successful completion of the investigation or a related
investigation. However, nothing in this division shall require the
disclosure of that portion of those investigative files that reflect
the analysis or conclusions of the investigating officer.
Customer lists provided to a state or local police agency by an
alarm or security company at the request of the agency shall be
construed to be records subject to this subdivision.
Notwithstanding any other provision of this subdivision, state and
local law enforcement agencies shall make public the following
information, except to the extent that disclosure of a particular
item of information would endanger the safety of a person involved in
an investigation or would endanger the successful completion of the
investigation or a related investigation:
(1) The full name and occupation of every individual arrested by
the agency, the individual's physical description including date of
birth, color of eyes and hair, sex, height and weight, the time and
date of arrest, the time and date of booking, the location of the
arrest, the factual circumstances surrounding the arrest, the amount
of bail set, the time and manner of release or the location where the
individual is currently being held, and all charges the individual
is being held upon, including any outstanding warrants from other
jurisdictions and parole or probation holds.
(2) Subject to the restrictions imposed by Section 841.5 of the
Penal Code, the time, substance, and location of all complaints or
requests for assistance received by the agency and the time and
nature of the response thereto, including, to the extent the
information regarding crimes alleged or committed or any other
incident investigated is recorded, the time, date, and location of
occurrence, the time and date of the report, the name and age of the
victim, the factual circumstances surrounding the crime or incident,
and a general description of any injuries, property, or weapons
involved. The name of a victim of any crime defined by Section 220,
261, 261.5, 262, 264, 264.1, 273a, 273d, 273.5, 286, 288, 288a, 289,
422.6, 422.7, 422.75, or 646.9 of the Penal Code may be withheld at
the victim's request, or at the request of the victim's parent or
guardian if the victim is a minor. When a person is the victim of
more than one crime, information disclosing that the person is a
victim of a crime defined by Section 220, 261, 261.5, 262, 264,
264.1, 273a, 273d, 286, 288, 288a, 289, 422.6, 422.7, 422.75, or
646.9 of the Penal Code may be deleted at the request of the victim,
or the victim's parent or guardian if the victim is a minor, in
making the report of the crime, or of any crime or incident
accompanying the crime, available to the public in compliance with
the requirements of this paragraph.
(3) Subject to the restrictions of Section 841.5 of the Penal Code
and this subdivision, the current address of every individual
arrested by the agency and the current address of the victim of a
crime, where the requester declares under penalty of perjury that the
request is made for a scholarly, journalistic, political, or
governmental purpose, or that the request is made for investigation
purposes by a licensed private investigator as described in Chapter
11.3 (commencing with Section 7512) of Division 3 of the Business and
Professions Code, except that the address of the victim of any crime
defined by Section 220, 261, 261.5, 262, 264, 264.1, 273a, 273d,
273.5, 286, 288, 288a, 289, 422.6, 422.7, 422.75, or 646.9 of the
Penal Code shall remain confidential. Address information obtained
pursuant to this paragraph may not be used directly or indirectly, or
furnished to another, to sell a product or service to any individual
or group of individuals, and the requester shall execute a
declaration to that effect under penalty of perjury. Nothing in this
paragraph shall be construed to prohibit
or limit a scholarly, journalistic, political, or
government use of address information obtained pursuant to this
paragraph.
(g) Test questions, scoring keys, and other examination data used
to administer a licensing examination, examination for employment, or
academic examination, except as provided for in Chapter 3
(commencing with Section 99150) of Part 65 of the Education Code.
(h) The contents of real estate appraisals or engineering or
feasibility estimates and evaluations made for or by the state or
local agency relative to the acquisition of property, or to
prospective public supply and construction contracts, until all of
the property has been acquired or all of the contract agreement
obtained. However, the law of eminent domain shall not be affected by
this provision.
(i) Information required from any taxpayer in connection with the
collection of local taxes that is received in confidence and the
disclosure of the information to other persons would result in unfair
competitive disadvantage to the person supplying the information.
(j) Library circulation records kept for the purpose of
identifying the borrower of items available in libraries, and library
and museum materials made or acquired and presented solely for
reference or exhibition purposes. The exemption in this subdivision
shall not apply to records of fines imposed on the borrowers.
(k) Records, the disclosure of which is exempted or prohibited
pursuant to federal or state law, including, but not limited to,
provisions of the Evidence Code relating to privilege.
(l) Correspondence of and to the Governor or employees of the
Governor's office or in the custody of or maintained by the Governor'
s Legal Affairs Secretary, provided that public records shall not be
transferred to the custody of the Governor's Legal Affairs Secretary
to evade the disclosure provisions of this chapter.
(m) In the custody of or maintained by the Legislative Counsel,
except those records in the public database maintained by the
Legislative Counsel that are described in Section 10248.
(n) Statements of personal worth or personal financial data
required by a licensing agency and filed by an applicant with the
licensing agency to establish his or her personal qualification for
the license, certificate, or permit applied for.
(o) Financial data contained in applications for financing under
Division 27 (commencing with Section 44500) of the Health and Safety
Code, where an authorized officer of the California Pollution Control
Financing Authority determines that disclosure of the financial data
would be competitively injurious to the applicant and the data is
required in order to obtain guarantees from the United States Small
Business Administration. The California Pollution Control Financing
Authority shall adopt rules for review of individual requests for
confidentiality under this section and for making available to the
public those portions of an application that are subject to
disclosure under this chapter.
(p) Records of state agencies related to activities governed by
Chapter 10.3 (commencing with Section 3512), Chapter 10.5 (commencing
with Section 3525), and Chapter 12 (commencing with Section 3560) of
Division 4 of Title 1, that reveal a state agency's deliberative
processes, impressions, evaluations, opinions, recommendations,
meeting minutes, research, work product, theories, or strategy, or
that provide instruction, advice, or training to employees who do not
have full collective bargaining and representation rights under
these chapters. Nothing in this subdivision shall be construed to
limit the disclosure duties of a state agency with respect to any
other records relating to the activities governed by the employee
relations acts referred to in this subdivision.
(q) Records of state agencies related to activities governed by
Article 2.6 (commencing with Section 14081), Article 2.8 (commencing
with Section 14087.5), and Article 2.91 (commencing with Section
14089) of Chapter 7 of Part 3 of Division 9 of the Welfare and
Institutions Code, that reveal the special negotiator's deliberative
processes, discussions, communications, or any other portion of the
negotiations with providers of health care services, impressions,
opinions, recommendations, meeting minutes, research, work product,
theories, or strategy, or that provide instruction, advice, or
training to employees.
Except for the portion of a contract containing the rates of
payment, contracts for inpatient services entered into pursuant to
these articles, on or after April 1, 1984, shall be open to
inspection one year after they are fully executed. In the event that
a contract for inpatient services that is entered into prior to April
1, 1984, is amended on or after April 1, 1984, the amendment, except
for any portion containing the rates of payment, shall be open to
inspection one year after it is fully executed. If the California
Medical Assistance Commission enters into contracts with health care
providers for other than inpatient hospital services, those contracts
shall be open to inspection one year after they are fully executed.
Three years after a contract or amendment is open to inspection
under this subdivision, the portion of the contract or amendment
containing the rates of payment shall be open to inspection.
Notwithstanding any other provision of law, the entire contract or
amendment shall be open to inspection by the Joint Legislative Audit
Committee and the Legislative Analyst's Office. The committee and
that office shall maintain the confidentiality of the contracts and
amendments until the time a contract or amendment is fully open to
inspection by the public.
(r) Records of Native American graves, cemeteries, and sacred
places maintained by the Native American Heritage Commission.
(s) A final accreditation report of the Joint Commission on
Accreditation of Hospitals that has been transmitted to the State
Department of Health Services pursuant to subdivision (b) of Section
1282 of the Health and Safety Code.
(t) Records of a local hospital district, formed pursuant to
Division 23 (commencing with Section 32000) of the Health and Safety
Code, or the records of a municipal hospital, formed pursuant to
Article 7 (commencing with Section 37600) or Article 8 (commencing
with Section 37650) of Chapter 5 of Division 3 of Title 4 of this
code, that relate to any contract with an insurer or nonprofit
hospital service plan for inpatient or outpatient services for
alternative rates pursuant to Section 10133 or 11512 of the Insurance
Code. However, the record shall be open to inspection within one
year after the contract is fully executed.
(u) (1) Information contained in applications for licenses to
carry firearms issued pursuant to Section 12050 of the Penal Code by
the sheriff of a county or the chief or other head of a municipal
police department that indicates when or where the applicant is
vulnerable to attack or that concerns the applicant's medical or
psychological history or that of members of his or her family.
(2) The home address and telephone number of peace officers,
judges, court commissioners, and magistrates that are set forth in
applications for licenses to carry firearms issued pursuant to
Section 12050 of the Penal Code by the sheriff of a county or the
chief or other head of a municipal police department.
(3) The home address and telephone number of peace officers,
judges, court commissioners, and magistrates that are set forth in
licenses to carry firearms issued pursuant to Section 12050 of the
Penal Code by the sheriff of a county or the chief or other head of a
municipal police department.
(v) (1) Records of the Major Risk Medical Insurance Program
related to activities governed by Part 6.3 (commencing with Section
12695) and Part 6.5 (commencing with Section 12700) of Division 2 of
the Insurance Code, and that reveal the deliberative processes,
discussions, communications, or any other portion of the negotiations
with health plans, or the impressions, opinions, recommendations,
meeting minutes, research, work product, theories, or strategy of the
board or its staff, or records that provide instructions, advice, or
training to employees.
(2) (A) Except for the portion of a contract that contains the
rates of payment, contracts for health coverage entered into pursuant
to Part 6.3 (commencing with Section 12695) or Part 6.5 (commencing
with Section 12700) of Division 2 of the Insurance Code, on or after
July 1, 1991, shall be open to inspection one year after they have
been fully executed.
(B) In the event that a contract for health coverage that is
entered into prior to July 1, 1991, is amended on or after July 1,
1991, the amendment, except for any portion containing the rates of
payment, shall be open to inspection one year after the amendment has
been fully executed.
(3) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto, until
the contract or amendments to a contract is open to inspection
pursuant to paragraph (3).
(w) (1) Records of the Major Risk Medical Insurance Program that
are related to activities governed by Chapter 14 (commencing with
Section 10700) of Part 2 of Division 2 of the Insurance Code, and
that reveal for agreement the deliberative processes, discussions,
communications, or any other portion of the negotiations with health
plans, or the impressions, opinions, recommendations, meeting
minutes, research, work product, theories, or strategy of the board
or its staff, or records that provide instructions, advice, or
training to employees.
(2) Except for the portion of a contract that contains the rates
of payment, contracts for health coverage entered into pursuant to
Chapter 14 (commencing with Section 10700) of Part 2 of Division 2 of
the Insurance Code, on or after January 1, 1993, shall be open to
inspection one year after they have been fully executed.
(3) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto, until
the contract or amendments to a contract are open to inspection
pursuant to paragraph (2).
(x) Financial data contained in applications for registration, or
registration renewal, as a service contractor filed with the Director
of the Department of Consumer Affairs pursuant to Chapter 20
(commencing with Section 9800) of Division 3 of the Business and
Professions Code, for the purpose of establishing the service
contractor's net worth, or financial data regarding the funded
accounts held in escrow for service contracts held in force in this
state by a service contractor.
(y) (1) Records of the Managed Risk Medical Insurance Board
related to activities governed by Part 6.2 (commencing with Section
12693) or Part 6.4 (commencing with Section 12699.50) of Division 2
of the Insurance Code that reveal the deliberative processes,
discussions, communications, or any other portion of the negotiations
with health plans, or the impressions, opinions, recommendations,
meeting minutes, research, work product, theories, or strategy of the
board or its staff, or records that provide instructions, advice, or
training to employees.
(2) (A) Except for the portion of a contract that contains the
rates of payment, contracts entered into pursuant to Part 6.2
(commencing with Section 12693) or Part 6.4 (commencing with Section
12699.50) of Division 2 of the Insurance Code, on or after January 1,
1998, shall be open to inspection one year after they have been
fully executed.
(B) In the event that a contract entered into pursuant to Part 6.2
(commencing with Section 12693) or Part 6.4 (commencing with Section
12699.50) of Division 2 of the Insurance Code is amended, the
amendment shall be open to inspection one year after the amendment
has been fully executed.
(3) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto until the
contract or amendments to a contract are open to inspection pursuant
to paragraph (2) or (3).
(5) The exemption from disclosure provided pursuant to this
subdivision for the contracts, deliberative processes, discussions,
communications, negotiations with health plans, impressions,
opinions, recommendations, meeting minutes, research, work product,
theories, or strategy of the board or its staff shall also apply to
the contracts, deliberative processes, discussions, communications,
negotiations with health plans, impressions, opinions,
recommendations, meeting minutes, research, work product, theories,
or strategy of applicants pursuant to Part 6.4 (commencing with
Section 12699.50) of Division 2 of the Insurance Code.
(z) Records obtained pursuant to paragraph (2) of subdivision (c)
of Section 2891.1 of the Public Utilities Code.
(aa) A document prepared by or for a state or local agency that
assesses its vulnerability to terrorist attack or other criminal acts
intended to disrupt the public agency's operations and that is for
distribution or consideration in a closed session.
(bb) All information provided to the Secretary of State by a
person for the purpose of registration in the Advance Health Care
Directive Registry, except that those records shall be released at
the request of a health care provider, a public guardian, or the
registrant's legal representative.
Nothing in this section prevents any agency from opening its
records concerning the administration of the agency to public
inspection, unless disclosure is otherwise prohibited by law.
Nothing in this section prevents any health facility from
disclosing to a certified bargaining agent relevant financing
information pursuant to Section 8 of the National Labor Relations
Act.
SEC. 72. Section 7072 of the Government Code is amended to read:
7072.
For purposes of this chapter, the following definitions shall
apply:
(a) "Department" means the Department of Housing and Community
Development.
(b) "Date of original designation" means the earlier of the
following:
(1) The date the eligible area receives designation as an
enterprise zone by the department pursuant to this chapter.
(2) In the case of an enterprise zone deemed designated pursuant
to subdivision (e) of Section 7073, the date the enterprise zone or
program area received original designation by the former Trade and
Commerce Agency pursuant to Chapter 12.8 (commencing with Section
7070) or Chapter 12.9 (commencing with Section 7080), as those
chapters read prior to January 1, 1997.
(c) "Eligible area" means any of the following:
(1) An area designated as an enterprise zone pursuant to Chapter
12.8 (commencing with Section 7070), as it read prior to January 1,
1997, or as a targeted economic development area, neighborhood
development area, or program area pursuant to Chapter 12.9
(commencing with Section 7080), as it read prior to January 1, 1997.
(2) A geographic area that, based upon the determination of the
department, fulfills at least one of the following criteria:
(A) The proposed geographic area meets the Urban Development
Action Grant criteria of the United States Department of Housing and
Urban Development.
(B) The area within the proposed zone has experienced plant
closures within the past two years affecting more than 100 workers.
(C) The city or county has submitted material to the department
for a finding that the proposed geographic area meets criteria of
economic distress related to those used in determining eligibility
under the Urban Development Action Grant Program and is therefore an
eligible area.
(D) The area within the proposed zone has a history of
gang-related activity, whether or not crimes of violence have been
committed.
(3) A geographic area that meets at least two of the following
criteria:
(A) The census tracts within the proposed zone have an
unemployment rate not less than 3 percentage points above the
statewide average for the most recent calendar year as determined by
the Employment Development Department.
(B) The county of the proposed zone has more than 70 percent of
the children enrolled in public school participating in the federal
free lunch program.
(C) The median household income for a family of four within the
census tracts of the proposed zone does not exceed 80 percent of the
statewide median income for the most recently available calendar
year.
(d) "Enterprise zone" means any area within a city, county, or
city and county that is designated as such by the department in
accordance with Section 7073.
(e) "Governing body" means a county board of supervisors or a city
council, as appropriate.
(f) "High technology industries" includes, but is not limited to,
the computer, biological engineering, electronics, and
telecommunications industries.
(g) "Resident," unless otherwise defined, means a person whose
principal place of residence is within a targeted employment area.
(h) "Targeted employment area" means an area within a city,
county, or city and county that is composed solely of those census
tracts designated by the United States Department of Housing and
Urban Development as having at least 51 percent of its residents of
low- or moderate-income levels, using either the most recent United
States Department of Census data available at the time of the
original enterprise zone application or the most recent census data
available at the time the targeted employment area is designated to
determine that eligibility. The purpose of a "targeted employment
area" is to encourage businesses in an enterprise zone to hire
eligible residents of certain geographic areas within a city, county,
or city and county. A targeted employment area may be, but is not
required to be, the same as all or part of an enterprise zone. A
targeted employment area's boundaries need not be contiguous. A
targeted employment area does not need to encompass each eligible
census tract within a city, county, or city and county. The governing
body of each city, county, or city and county that has jurisdiction
of the enterprise zone shall identify those census tracts whose
residents are in the most need of this employment targeting. Only
those census tracts within the jurisdiction of the city, county, or
city and county that has jurisdiction of the enterprise zone may be
included in a targeted employment area.
At least a part of each eligible census tract within a targeted
employment area shall be within the territorial jurisdiction of the
city, county, or city and county that has jurisdiction for an
enterprise zone. If an eligible census tract encompasses the
territorial jurisdiction of two or more local governmental entities,
all of those entities shall be a party to the designation of a
targeted employment area. However, any one or more of those entities,
by resolution or ordinance, may specify that it shall not
participate in the application as an applicant, but shall agree to
complete all actions stated within the application that apply to its
jurisdiction, if the area is designated.
Each local governmental entity of each city, county, or city and
county that has jurisdiction of an enterprise zone shall approve, by
resolution or ordinance, the boundaries of its targeted employment
area, regardless of whether a census tract within the proposed
targeted employment area is outside the jurisdiction of the local
governmental entity.
SEC. 73. Section 7076.2 of the Government Code is amended to read:
7076.2.
(a) The department shall dedesignate a zone on the first day of
the month immediately following the date upon which the department
has received from each jurisdiction comprising the zone a resolution,
adopted by the governing body of that jurisdiction, requesting the
dedesignation of the zone. Upon the dedesignation of a zone pursuant
to this subdivision, the department shall initiate an application
process for a new designation as provided in Section 7073.
(b) The department shall exclude from a zone that portion of that
zone that is located within a jurisdiction on the first day of the
month immediately following the date upon which the department
receives from that jurisdiction a resolution, adopted by the
governing body of that jurisdiction, requesting that exclusion. Any
jurisdiction that provides notice to the department pursuant to this
subdivision shall concurrently provide a copy of that notice to all
other jurisdictions that comprise the affected zone.
(c) Any business, located within any jurisdiction that comprises a
zone that has been dedesignated or within a jurisdiction that has
excluded itself from a zone, that has elected to avail itself of any
state tax incentive specifically applicable to a zone for any taxable
or income year beginning prior to the dedesignation of the zone or
the exclusion of a jurisdiction comprising the zone may, to the
extent the business is still otherwise eligible for those incentives,
continue to avail itself of those incentives for a period equal to
the remaining life of the zone. However, any business, located
within any jurisdiction that comprises a zone that has been
dedesignated or within a jurisdiction that has excluded itself from a
zone, that has not availed itself of any state tax incentive in the
manner described in the preceding sentence may not, after
dedesignation of the zone, avail itself of any state incentive
specifically applicable to a zone.
(d) For purposes of this section, "dedesignation" is defined as
set forth in paragraph (1) of subdivision (d) of Section 7076.1.
SEC. 74. Section 7099 of the Government Code is amended to read:
7099.
(a) The Department of Housing and Community Development may
approve a proposed expansion of a targeted tax area subject to the
following conditions:
(1) The governing body of each city and county in which the
targeted tax area is located approves an ordinance or resolution
approving the proposed expansion of the area.
(2) The department determines that the proposed additional
territory meets the criteria specified in subdivision (a) of Section
7097 to the same extent as the existing territory of the targeted tax
area.
(3) The proposed expansion, in combination with any previous
expansions of the targeted tax area, does not exceed 15 percent of
the size of the area on the date of its original designation.
(4) The expansion area is contiguous to the targeted tax area.
(5) The expansion meets the criteria established in paragraphs
(1), (2), and (3) of subdivision (b) of Section 7074.
(b) The department shall respond in writing to any application for
a proposed expansion of the targeted tax area within 90 days of the
date on which the application is deemed complete.
SEC. 75. Section 7110 of the Government Code is amended to read:
7110.
(a) The governing body may, either by ordinance or resolution,
propose an eligible area within its respective jurisdiction as the
geographic area for a local agency military base recovery area. A
county may propose an area within the unincorporated area as the
geographic area for a local agency military base recovery area, but
shall not propose an area within an incorporated area. A city may
propose an area within the incorporated area as the geographic area
for a local agency military base recovery area, but may not propose
an area within an unincorporated area. A city and county may propose
an area within the city and county for designation as a local agency
military base recovery area. This proposed geographic area shall be
based upon findings by the governing body that the area meets the
criteria in Section 7111 and that the designation as a local agency
military base recovery area is necessary in order to assist in
attracting private sector investment in the area. The governing body
shall establish definitive boundaries, not to exceed former base
property, for the area to be included in the application for
designation and, if designated by the department, the designation
shall be binding for the period described in Section 7110.5.
(b) Following the application for designation of a local agency
military base recovery area, the governing body shall apply to the
department for designation. The department shall adopt regulations
and guidelines concerning the necessary contents of each application
for designation.
(c) Any governing body with an eligible area within its
jurisdiction may complete a preliminary application.
(d) In designating a local agency military base recovery area, the
department shall select from the applications submitted those
proposed local agency military base recovery areas which, based on a
comparison of those applications, propose the most effective,
innovative, and comprehensive regulatory, tax, program, and other
incentives to attract private sector investment in the proposed local
agency military base recovery area. For purposes of this
subdivision, the following terms have the following meanings:
(1) "Regulatory incentives" includes, but is not limited to, the
elimination or reduction of fees for applications, permits, and local
government facilities and services; and the establishment of a
streamlined permit process.
(2) "Tax incentives" includes, but is not limited to, the
elimination or reduction of business license taxes and utility user
taxes.
(3) "Program" and "other incentives" may include, but are not
limited to, the provision or expansion of infrastructure; the
targeting of federal block grant moneys, including small cities,
education, and health and welfare block grants; the targeting of
economic development grants and loan moneys, including grant and loan
moneys provided by the federal Urban Development Action Grant
program and the federal Economic Development Administration; the
targeting of state and
federal job disadvantaged and vocational education grant moneys,
including moneys provided by the federal Job Partnership Training Act
of 1982; the targeting of federal or state transportation grant
moneys; and the targeting of federal or state low-income housing and
rental assistance moneys.
(e) The department shall also consider the following:
(1) The unemployment rate for the area under the jurisdiction of
the local governing body.
(2) The number of civilian and military jobs lost as a result of
the base closure when compared to the number of jobs available in the
area.
(3) Whether the local agency has a comprehensive economic
development plan that is consistent with the reuse plan.
(4) Whether the local agency has a prepared plan for appropriate
hazardous waste management facilities as an integral part of the base
and shall give extra consideration for any plan that includes
provisions for critically needed hazardous waste facilities.
(5) Whether the governing body has resolved, as part of the reuse
plan approval, to prepare a program environmental impact report that
is in compliance with the California Environmental Quality Control
Act and associated guidelines.
(f) In evaluating applications for designation, the department
shall ensure that applications are not disqualified solely because of
technical deficiencies and shall provide applicants with an
opportunity to correct the deficiencies. Applications shall be
disqualified if the deficiencies are not corrected within two weeks.
The department shall provide technical assistance to applicants that
request it.
SEC. 76. Section 7113.5 of the Government Code is amended to read:
7113.5.
When selecting successful applicants for a local agency military
base recovery area, the department shall limit the number of local
agency military base recovery areas to eight, which shall be awarded
by the following criteria, in addition to the criteria set forth in
Section 7111:
(a) The department shall designate at least one local agency
military base recovery area in each region.
(b) If the department finds that none of the applications in a
competition is satisfactory in meeting the selection criteria, the
department shall inform all applicants on the deficiencies in their
application and shall reopen competition for a period not to exceed
six months. Local governing bodies who originally applied may reapply
in the new competition.
(c) If, after following the procedures specified in subdivision
(b), the department determines that no applications are satisfactory,
the department may not designate a local agency military base
recovery area.
(d) Eligible bases shall compete for approval of a local agency
military base recovery area against other eligible bases. In any
event, not less than one area shall be designated from each region.
SEC. 77. Section 8592.4 of the Government Code is amended to read:
8592.4.
(a) The committee shall determine which state public safety
departments listed in subdivision (b) of Section 8592.1 need new or
upgraded communication equipment and shall establish a program for
equipment purchase. In establishing this program, the committee shall
recommend the purchase of equipment that will enable state agencies
to commence conforming to accepted industry standards for
interoperability specified in subdivision (a) of Section 8592.5.
(b) This section may not be construed to mandate that a state or
local governmental agency affected thereby is required to compromise
its immediate mission or ability to function and carry out its
existing responsibilities.
SEC. 78. Section 8875.10 of the Government Code is amended to
read:
8875.10.
(a) Notwithstanding any other provision of law, a city or county
may not impose any additional building or site conditions, including,
but not limited to, parking or other onsite or offsite requirements,
fees, or exactions, on or before the issuance of a building permit
that is necessary for the owner of a potentially hazardous building
to conduct seismic-related improvements to that building in order for
that building to meet the requirements of a mitigation program
established pursuant to Section 8875.1 and adopted pursuant to
Section 8875.2, if the building or site conditions do not relate to,
or further the purpose of, seismic improvements to the building and
the improvements comply with applicable building codes and meet or
exceed the requirements of state and federal law and regulations that
would otherwise apply.
(b) This section shall not apply to any changes in use, design, or
other building features that are unrelated to the seismic
improvements. This section shall also not apply to a request for
other entitlements for the project, including, but not limited to, a
general plan amendment, zone change, or approval pursuant to the
Subdivision Map Act (Division 2 (commencing with Section 66410) of
Title 7.
(c) This section shall remain in effect only until January 1,
2009, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2009, deletes or extends
that date.
SEC. 79. Section 12599 of the Government Code is amended to read:
12599.
(a) "Commercial fundraiser for charitable purposes" means any
individual, corporation, unincorporated association, or other legal
entity who for compensation does any of the following:
(1) Solicits funds, assets, or property in this state for
charitable purposes.
(2) As a result of a solicitation of funds, assets, or property in
this state for charitable purposes, receives or controls the funds,
assets, or property solicited for charitable purposes.
(3) Employs, procures, or engages any compensated person to
solicit, receive, or control funds, assets, or property for
charitable purposes.
A commercial fundraiser for charitable purposes shall include any
person, association of persons, corporation, or other entity that
obtains a majority of its inventory for sale by the purchase,
receipt, or control for resale to the general public, of salvageable
personal property solicited by an organization qualified to solicit
donations pursuant to Section 148.3 of the Welfare and Institutions
Code.
A commercial fundraiser for charitable purposes shall not include
a "trustee" as defined in Section 12582 or 12583, a "charitable
corporation" as defined in Section 12582.1, or any employee thereof.
A commercial fundraiser for charitable purposes shall not include an
individual who is employed by or under the control of a commercial
fundraiser for charitable purposes registered with the Attorney
General. A commercial fundraiser for charitable purposes shall not
include any federally insured financial institution that holds as a
depository funds received as a result of a solicitation for
charitable purposes.
As used in this section, "charitable purposes" includes any
solicitation in which the name of any organization of law enforcement
personnel, firefighters, or other persons who protect the public
safety is used or referred to as an inducement for transferring any
funds, assets, or property, unless the only expressed or implied
purpose of the solicitation is for the sole benefit of the actual
active membership of the organization.
(b) A commercial fundraiser for charitable purposes shall, prior
to soliciting any funds, assets, or property, including salvageable
personal property, in California for charitable purposes, or prior to
receiving and controlling any funds, assets, or property, including
salvageable personal property, as a result of a solicitation in this
state for charitable purposes, register with the Attorney General's
Registry of Charitable Trusts on a registration form provided by the
Attorney General. Renewals of registration shall be filed with the
Registry of Charitable Trusts by January 15 of each calendar year in
which the commercial fundraiser for charitable purposes does business
and shall be effective for one year. A registration or renewal fee
of two hundred dollars ($200) shall be required for registration of a
commercial fundraiser for charitable purposes, and shall be payable
by certified or cashier's check to the Attorney General's Registry of
Charitable Trusts at the time of registration or renewal. The
Attorney General may adjust the annual registration or renewal fee as
needed pursuant to this section. The Attorney General's Registry of
Charitable Trusts may grant extensions of time to file annual
registration as required, pursuant to subdivision (b) of Section
12586.
(c) A commercial fundraiser for charitable purposes shall file
with the Attorney General's Registry of Charitable Trusts an annual
financial report on a form provided by the Attorney General,
accounting for all funds collected pursuant to any solicitation for
charitable purposes during the preceding calendar year. The annual
financial report shall be filed with the Attorney General's Registry
of Charitable Trusts no later than 30 days after the close of the
preceding calendar year.
(d) The contents of the forms for annual registration and annual
financial reporting by commercial fundraisers for charitable purposes
shall be established by the Attorney General in a manner consistent
with the procedures set forth in subdivisions (a) and (b) of Section
12586. The annual financial report shall require a detailed, itemized
accounting of funds, assets, or property, solicited for charitable
purposes on behalf of each charitable organization exempt from
taxation under Section 501(c)(3) of the Internal Revenue Code or for
each charitable purpose during the accounting period, and shall
include, among other data, the following information for funds,
assets, or property, solicited by the commercial fundraiser for
charitable purposes:
(1) Total revenue.
(2) The fee or commission charged by the commercial fundraiser for
charitable purposes.
(3) Salaries paid by the commercial fundraiser for charitable
purposes to its officers and employees.
(4) Fundraising expenses.
(5) Distributions to the identified charitable organization or
purpose.
(6) The names and addresses of any director, officer, or employee
of the commercial fundraiser for charitable purposes who is a
director, officer, or employee of any charitable organization listed
in the annual financial report.
(e) A commercial fundraiser for charitable purposes that obtains a
majority of its inventory for sale by the purchase, receipt, or
control for resale to the general public, of salvageable personal
property solicited by an organization qualified to solicit donations
pursuant to Section 148.3 of the Welfare and Institutions Code shall
file with the Attorney General's Registry of Charitable Trusts, and
not with the sheriff of any county, an annual financial report on a
form provided by the Attorney General that is separate and distinct
from forms filed by other commercial fundraisers for charitable
purposes pursuant to subdivisions (c) and (d).
(f) It shall be unlawful for any commercial fundraiser for
charitable purposes to solicit funds in this state for charitable
purposes unless the commercial fundraiser for charitable purposes has
complied with the registration or annual renewal and financial
reporting requirements of this article. Failure to comply with these
registration or annual renewal and financial reporting requirements
shall be grounds for injunction against solicitation in this state
for charitable purposes and other civil remedies provided by law.
(g) A commercial fundraiser for charitable purposes is a
constructive trustee for charitable purposes as to all funds
collected pursuant to solicitation for charitable purposes and shall
account to the Attorney General for all funds. A commercial
fundraiser for charitable purposes is subject to the Attorney General'
s supervision and enforcement over charitable funds and assets to the
same extent as a trustee for charitable purposes under this article.
(h) Not less than 10 working days prior to the commencement of
each solicitation campaign, event, or service, or not later than
commencement of solicitation for solicitations to aid victims of
emergency hardship or disasters, a commercial fundraiser for
charitable purposes shall file with the Attorney General's Registry
of Charitable Trusts a notice on a form prescribed by the Attorney
General that sets forth all of the following:
(1) The name, address, and telephone number of the commercial
fundraiser for charitable purposes.
(2) The name, address, and telephone number of the charitable
organization with whom the commercial fundraiser has contracted.
(3) The fundraising methods to be used.
(4) The projected dates when performance under the contract will
commence and terminate.
(5) The name, address, and telephone number of the person
responsible for directing and supervising the work of the commercial
fundraiser under the contract.
(i) There shall be a written contract between a commercial
fundraiser for charitable purposes and a charitable organization for
each solicitation campaign, event, or service, that shall be signed
by the authorized contracting officer for the commercial fundraiser
and by an official of the charitable organization who is authorized
to sign by the organization's governing body. The contract shall be
available for inspection by the Attorney General and shall contain
all of the following provisions:
(1) The legal name and address of the charitable organization as
registered with the Registry of Charitable Trusts, unless the
charitable organization is exempt from registration.
(2) A statement of the charitable purpose for which the
solicitation campaign, event, or service is being conducted.
(3) A statement of the respective obligations of the commercial
fundraiser and the charitable organization.
(4) If the commercial fundraiser is to be paid a fixed fee, a
statement of the fee to be paid to the commercial fundraiser and a
good faith estimate of what percentage the fee will constitute of the
total contributions received. The contract shall clearly disclose
the assumptions upon which the estimate is based, and the stated
assumptions shall be based upon all of the relevant facts known to
the commercial fundraiser regarding the solicitation to be conducted
by the commercial fundraiser.
(5) If a percentage fee is to be paid to the commercial
fundraiser, a statement of the percentage of the total contributions
received that will be remitted to or retained by the charitable
organization, or, if the solicitation involves the sale of goods or
services or the sale of admissions to a fundraising event, the
percentage of the purchase price that will be remitted to the
charitable organization. The stated percentage shall be calculated by
subtracting from contributions received and sales receipts not only
the commercial fundraiser's fee, but also any additional amounts that
the charitable organization is obligated to pay as fundraising
costs.
(6) The effective and termination dates of the contract and the
date solicitation activity is to commence within the state.
(7) A provision that requires that each contribution in the
control or custody of the commercial fundraiser shall in its entirety
and within five working days of its receipt comply with either of
the following:
(A) Be deposited in an account at a bank or other federally
insured financial institution that is solely in the name of the
charitable organization and over which the charitable organization
has sole control of withdrawals.
(B) Be delivered to the charitable organization in person, by
United States express mail, or by another method of delivery
providing for overnight delivery.
(8) A statement that the charitable organization exercises control
and approval over the content and frequency of any solicitation.
(9) If the commercial fundraiser proposes to make any payment in
cash or in kind to any person or legal entity to secure any person's
attendance at, or sponsorship, approval, or endorsement of, a charity
fundraising event, the maximum dollar amount of those payments shall
be set forth in the contract. "Charity fundraising event" means any
gathering of persons, including, but not limited to, a party,
banquet, concert, or show, that is held for the purpose or claimed
purpose of raising funds for any charitable purpose or organization.
(10) A provision that the charitable organization has the right to
cancel the contract without cost, penalty, or liability for a period
of 10 days following the date on which the contract is executed;
that the charitable organization may cancel the contract by serving a
written notice of cancellation on the commercial fundraiser; that,
if mailed, service shall be by certified mail, return receipt
requested, and cancellation shall be deemed effective upon the
expiration of five calendar days from the date of mailing; that any
funds collected after effective notice that the contract has been
canceled shall be deemed to be held in trust for the benefit of the
charitable organization without deduction for costs or expenses of
any nature; and that the charitable organization shall be entitled to
recover all funds collected after the date of cancellation.
(11) A provision that, following the initial 10-day cancellation
period, the charitable organization may terminate the contract by
giving 30 days' written notice; that, if mailed, service of the
notice shall be by certified mail, return receipt requested, and
shall be deemed effective upon the expiration of five calendar days
from the date of mailing; and that, in the event of termination under
this subdivision, the charitable organization shall be liable for
services provided by the commercial fundraiser up to 30 days after
the effective service of the notice.
(12) A provision that, following the initial 10-day cancellation
period, the charitable organization may terminate the contract at any
time upon written notice, without payment or compensation of any
kind to the commercial fundraiser, if the commercial fundraiser or
its agents, employees, or representatives (A) make any material
misrepresentations in the course of solicitations or with respect to
the charitable organization, (B) are found by the charitable
organization to have been convicted of a crime arising from the
conduct of a solicitation for a charitable organization or purpose
punishable as a misdemeanor or a felony, or (C) otherwise conduct
fundraising activities in a manner that causes or could cause public
disparagement of the charitable organization's good name or good
will.
(13) Any other information required by the regulations of the
Attorney General.
(j) It shall be unlawful for a commercial fundraiser for
charitable purposes to not disclose the percentage of total
fundraising expenses of the fundraiser upon receiving a written or
oral request from a person solicited for a contribution for a
charitable purpose. "Percentage of total fundraising expenses," as
used in this section, means the ratio of the total expenses of the
fundraiser to the total revenue received by the fundraiser for the
charitable purpose for which funds are being solicited, as reported
on the most recent financial report filed with the Attorney General's
Registry of Charitable Trusts. A commercial fundraiser shall
disclose this information in writing within five working days from
receipt of a request by mail or facsimile. A commercial fundraiser
shall orally disclose this information immediately upon a request
made in person or in a telephone conversation and shall follow this
response with a written disclosure within five working days. Failure
to comply with the requirements of this subdivision shall be grounds
for an injunction against solicitation in this state for charitable
purposes and other civil remedies provided by law.
(k) If the Attorney General issues a report to the public
containing information obtained from registration forms or financial
report forms filed by commercial fundraisers for charitable purposes,
there shall be a separate section concerning commercial fundraisers
for charitable purposes that obtain a majority of their inventory for
sale by the purchase, receipt, or control for resale to the general
public, of salvageable personal property solicited by an organization
qualified to solicit donations pursuant to Section 148.3 of the
Welfare and Institutions Code. The report shall include an
explanation of the distinctions between these thrift store operations
and other types of commercial fundraising.
(l) No person may act as a commercial fundraiser for charitable
purposes if that person, any officer or director of that person's
business, any person with a controlling interest in the business, or
any person the commercial fundraiser employs, engages, or procures to
solicit for compensation, has been convicted by a court of any state
or the United States of a crime arising from the conduct of a
solicitation for a charitable organization or purpose punishable as a
misdemeanor or felony.
(m) A commercial fundraiser for charitable purposes shall not
solicit in the state on behalf of a charitable organization unless
that charitable organization is registered or is exempt from
registration with the Attorney General's Registry of Charitable
Trusts.
(n) If any provision of this section or the application thereof to
any person or circumstances is held invalid, that invalidity shall
not affect any other provision or application of this section that
can be given effect without the invalid provision or application, and
to this end the provisions of this section are severable.
SEC. 80. Section 12715 of the Government Code is amended to read:
12715.
(a) The Controller, acting in consultation with the California
Gambling Control Commission, shall divide the County Tribal Casino
Account for each county that has gaming devices that are subject to
an obligation to make contributions to the Indian Gaming Special
Distribution Fund into a separate account for each tribe that
operates a casino within the county. These accounts shall be known as
Individual Tribal Casino Accounts, and funds may be released from
these accounts to make grants selected by an Indian Gaming Local
Community Benefit Committee pursuant to the method established by
this section to local jurisdictions impacted by tribal casinos. Each
Individual Tribal Casino Account shall be funded in proportion to the
amount that each individual tribe paid in the prior fiscal year to
the Indian Gaming Special Distribution Fund.
(b) (1) There is hereby created in each county in which Indian
gaming is conducted an Indian Gaming Local Community Benefit
Committee. The selection of all grants from each Individual Tribal
Casino Account or County Tribal Casino Account shall be made by each
county's Indian Gaming Local Community Benefit Committee. In
selecting grants, the Indian Gaming Local Community Benefit Committee
shall follow the priorities established in subdivision (g). This
committee has the following additional responsibilities:
(A) Establishing all application policies and procedures for
grants from the Individual Tribal Casino Account or County Tribal
Casino Account.
(B) Assessing the eligibility of applications for grants from
local jurisdictions impacted by tribal gaming operations.
(C) Determining the appropriate amount for reimbursement from the
aggregate county tribal account of the demonstrated costs incurred by
the county for administering the grant programs. The reimbursement
for county administrative costs may not exceed 2 percent of the
aggregate county tribal account in any given fiscal year.
(2) Except as provided in Section 12715.5, the Indian Gaming
Local Community Benefit Committee shall be composed of seven
representatives, consisting of the following:
(A) Two representatives from the county, selected by the county
board of supervisors.
(B) Three elected representatives from cities located within four
miles of a tribal casino in the county, selected by the county board
of supervisors. In the event that there are no cities located within
four miles of a tribal casino in the county, other local
representatives may be selected upon mutual agreement by the county
board of supervisors and a majority of the tribes paying into the
Indian Gaming Special Distribution Fund in the county. When there are
no cities within four miles of a tribal casino in the county, and
when the Indian Gaming Local Community Benefit Committee acts on
behalf of a county where no tribes pay into the Indian Gaming Special
Distribution Fund, other local representatives may be selected upon
mutual agreement by the county board of supervisors and a majority of
the tribes operating casinos in the county.
(C) Two representatives selected upon the recommendation of a
majority of the tribes paying into the Indian Gaming Special
Distribution Fund in each county. When an Indian Gaming Local
Community Benefit Committee acts on behalf of a county where no
tribes pay into the Indian Gaming Special Distribution Fund, the two
representatives may be selected upon the recommendation of the tribes
operating casinos in the county.
(c) Sixty percent of each individual tribal casino account shall
be available for nexus grants on a yearly basis to cities and
counties impacted by tribes that are paying into the Indian Gaming
Special Distribution Fund, according to the four-part nexus test
described in paragraph (1). Grant awards shall be selected by each
county's Indian Gaming Local Community Benefit Committee and shall be
administered by the county. Grants may be awarded on a multiyear
basis, and these multiyear grants shall be accounted for in the grant
process for each year.
(1) A nexus test based on the geographical proximity of a local
government jurisdiction to an individual Indian land upon which a
tribal casino is located shall be used by each county's Indian Gaming
Local Community Benefit Committee to determine the relative priority
for grants, using the following criteria:
(A) Whether the local government jurisdiction borders the Indian
lands on all sides.
(B) Whether the local government jurisdiction partially borders
Indian lands.
(C) Whether the local government jurisdiction maintains a highway,
road, or other thoroughfare that is the predominant access route to
a casino that is located within four miles.
(D) Whether all or a portion of the local government jurisdiction
is located within four miles of a casino.
(2) Fifty percent of the amount specified in subdivision (c) shall be
awarded in equal proportions to local government jurisdictions that
meet all four of the nexus test criteria in paragraph (1). If no
eligible local government jurisdiction satisfies this requirement,
the amount specified in this paragraph shall be made available for
nexus grants in equal proportions to local government jurisdictions
meeting the requirements of paragraph (3) or (4).
(3) Thirty percent of the amount specified in subdivision (c)
shall be awarded in equal proportions to local government
jurisdictions that meet three of the nexus test criteria in paragraph
(1). If no eligible local government jurisdiction satisfies this
requirement, the amount specified in this paragraph shall be made
available for nexus grants in equal proportions to local government
jurisdictions meeting the requirements of paragraph (2) or (4).
(4) Twenty percent of the amount specified in subdivision (c)
shall be awarded in equal proportions to local government
jurisdictions that meet two of the nexus test criteria in paragraph
(1). If no eligible local government jurisdiction satisfies this
requirement, the amount specified in this paragraph shall be made
available for nexus grants in equal proportions to local government
jurisdictions meeting the requirements of paragraph (2) or (3).
(d) Twenty percent of each Individual Tribal Casino Account shall
be available for discretionary grants to local jurisdictions impacted
by tribes that are paying into the Indian Gaming Special
Distribution Fund. These discretionary grants shall be made available
to all local jurisdictions in the county irrespective of any nexus
to impacts from any particular tribal casino, as described in
paragraph (1) of subdivision (c). Grant awards shall be selected by
each county's Indian Gaming Local Community Benefit Committee and
shall be administered by the county. Grants may be awarded on a
multiyear basis, and these multiyear grants shall be accounted for in
the grant process for each year.
(e) (1) Twenty percent of each Individual Tribal Casino Account
shall be available for discretionary grants to local jurisdictions
impacted by tribes that are not paying into the Indian Gaming Special
Distribution Fund. These grants shall be made available to local
jurisdictions in the county irrespective of any nexus to impacts from
any particular tribal casino, as described in paragraph (1) of
subdivision (c), and irrespective of whether the impacts presented
are from a tribal casino that is not paying into the Indian Gaming
Special Distribution Fund. Grant awards shall be selected by each
county's Indian Gaming Local Community Benefit Committee and shall be
administered by the county. Grants may be awarded on a multiyear
basis, and these multiyear grants shall be accounted for in the grant
process for each year.
(A) Grants awarded pursuant to this subdivision are limited to
addressing service-oriented impacts and providing assistance with
one-time large capital projects related to Indian gaming impacts.
(B) Grants shall be subject to the sole sponsorship of the tribe
that pays into the Indian Gaming Special Distribution Fund and the
recommendations of the Indian Gaming Local Community Benefit
Committee for that county.
(2) If an eligible county does not have a tribal casino operated
by a tribe that does not pay into the Indian Gaming Special
Distribution Fund, the money available for discretionary grants under
this subdivision shall be available for distribution pursuant to
subdivision (d).
(f) (1) For each county that does not have gaming devices subject
to an obligation to make payments to the Indian Gaming Special
Distribution Fund, funds may be released from the county's County
Tribal Casino Account to make grants selected by the county's Indian
Gaming Local Community Benefit Committee pursuant to the method
established by this section to local jurisdictions impacted by tribal
casinos. These grants shall be made available to local jurisdictions
in the county irrespective of any nexus to any particular tribal
casino. These grants shall follow the priorities specified in
subdivision (g).
(2) Funds not allocated from a county tribal casino account by the
end of each fiscal year shall revert back to the Indian Gaming
Special Distribution Fund. Moneys allocated for the 2003-04 fiscal
year shall be eligible for expenditure through December 31, 2004.
(g) The following uses shall be the priorities for the receipt of
grant money from Individual Tribal Casino Accounts: law enforcement,
fire services, emergency medical services, environmental impacts,
water supplies, waste disposal, behavioral, health, planning and
adjacent land uses, public health, roads, recreation and youth
programs, and child care programs.
(h) All grants from Individual Tribal Casino Accounts shall be
made only upon the affirmative sponsorship of the tribe paying into
the Indian Gaming Special Distribution Fund from whose Individual
Tribal Casino Account the grant moneys are available for
distribution. Tribal sponsorship shall confirm that the grant
application has a reasonable relationship to a casino impact and
satisfies at least one of the priorities listed in subdivision (g). A
grant may not be made for any purpose that would support or fund,
directly or indirectly, any effort related to the opposition or
challenge to Indian gaming in the state, and, to the extent any
awarded grant is utilized for any prohibited purpose by any local
government, upon notice given to the county by any tribe from whose
Individual Tribal Casino Account the awarded grant went toward that
prohibited use, the grant shall terminate immediately and any moneys
not yet used shall again be made available for qualified nexus
grants.
(i) A local government jurisdiction that is a recipient of a grant
from an Individual County Tribal Casino Account or a County Tribal
Casino Account shall provide notice to the public, either through a
slogan, signage, or other mechanism, stating that the local
government project has received funding from the Indian Gaming
Special Distribution Fund and further identifying the particular
Individual Tribal Casino Account from which the grant derives.
(j) (1) Each county's Indian Gaming Local Community Benefit
Committee shall submit to the Controller a list of approved projects
for funding from Individual Tribal Casino Accounts. Upon receipt of
this list, the Controller shall release the funds directly to the
local government entities for which a grant has been approved by the
committee.
(2) Funds not allocated from an Individual Tribal Casino Account
by the end of each fiscal year shall revert back to the Indian Gaming
Special Distribution Fund. Moneys allocated for the 2003-04 fiscal
year shall be eligible for expenditure through December 31, 2004.
SEC. 81. The heading of Chapter 5 (commencing with Section 14557)
is added to Part 5.3 of Division 3 of Title 2 of the Government Code,
to read:
CHAPTER 5. Suspension of Article XIX B Transfers
SEC. 82. Section 17555 of the Government Code is amended to read:
17555.
(a) Not later than 30 days after hearing and deciding upon a test
claim pursuant to subdivision (a) of Section 17551, the commission
shall notify the appropriate Senate and Assembly policy and fiscal
committees, the Legislative Analyst, the Department of Finance, and
the Controller of that decision.
(b) For purposes of this section, the "appropriate policy
committee" means the policy committee that has jurisdiction over the
subject matter of the statute, regulation, or executive order, and in
which bills relating to that subject matter would have been heard.
SEC. 83. Section 20281.5 of the Government Code is amended to
read:
20281.5.
(a) Notwithstanding Section 20281, a person who becomes a state
miscellaneous or state industrial member of the system on or after
the effective date of this section because the person is first
employed by the state and qualifies for membership shall be subject
to the provisions of this section.
(b) Members subject to this section shall not accrue credit for
service in the system and shall not make employee contributions to
the system, including the contributions set forth in Section 20677.4,
for employment with the state until the first day of the first pay
period commencing 24 months after becoming a member of the system.
(c) Notwithstanding subdivision (a), this section shall not apply
to any of the following:
(1) Persons who are already members or annuitants of the system at
the time they are first employed by the state.
(2) Employees of the California State University, or the
legislative or judicial branch of state government.
(3) Members of the Judges' Retirement System, the Judges'
Retirement System II, the Legislators' Retirement System, the State
Teachers' Retirement System, or the University of California
Retirement Plan.
(4) Persons who are members of a reciprocal retirement system and
whose employment was subject to a reciprocal retirement system within
the six months prior to membership in this system.
(5) Persons whose service is not included in the federal system.
(6) Persons who are employed by the Department of the California
Highway Patrol as students at the department's training school
established pursuant to Section 2262 of the Vehicle Code.
(7) Persons who have ceased to be members pursuant to Section
20340 or 21075.
(d) Any regulations adopted by the board to implement the
requirements of this section shall not be subject to the review and
approval of the Office of Administrative Law, pursuant to Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3. The
regulations shall become effective immediately upon filing with the
Secretary of State.
SEC. 84. Section 20610 of the Government Code is amended to read:
20610.
(a) Every county superintendent of schools shall enter into a
contract with the board for the inclusion in this system of (1) all
of the employees of the office of county superintendent whose
compensation is paid from the county school service fund other than
employees electing pursuant to Section 1313 of the Education Code to
continue in membership in a county system; and (2) all of the
employees of school districts and community college districts
existing on July 1, 1949, or thereafter formed, within his or her
jurisdiction, other than school districts that are contracting
agencies or that maintain a district, joint district, or other local
retirement system, with respect to service rendered in a status in
which they are not eligible for membership in the State Teachers'
Retirement Plan. The effective date of each contract shall not be
later than July 1, 1949. For the purposes of this part, those school
district employees shall be considered employees of the county
superintendent of schools having jurisdiction over the school
district by which they are employed and service to the district shall
be considered service to the county superintendent of schools.
(b) If a charter school chooses to participate in the system, all
employees of the charter school who qualify for membership in the
system shall be covered under the system and all provisions of this
part shall apply in the same manner as if the charter school were a
public school in the school district that granted the charter.
SEC. 85. Section 21224 of the Government Code is amended to read:
21224.
(a) A retired person may serve without reinstatement from
retirement or loss or interruption of benefits provided by this
system upon appointment by the appointing power of a state agency or
any other employer either during an emergency to prevent stoppage of
public business or because the retired employee has skills needed in
performing work of limited duration. These appointments shall not
exceed a total for all employers of 960 hours in any calendar year,
and the rate of pay for the employment shall not be less than the
minimum, nor exceed that paid by the employer to other employees
performing comparable duties.
(b) (1) This section does not apply to any retired person
otherwise eligible if during the 12-month period prior to an
appointment described in this section the retired person received any
unemployment insurance compensation arising out of prior employment
subject to this section with the same employer.
(2) A retired person who accepts an appointment after receiving
unemployment insurance compensation as described in this subdivision
shall terminate that employment on the last day of the current pay
period and shall not be eligible for reappointment subject to this
section for a period of 12 months following the last day of
employment. The retired person shall not be subject to Section 21202
or subdivision (b) of Section 21220.
SEC. 86. Section 22860 of the Government Code is amended to read:
22860.
It is the policy of the Legislature that benefits provided by a
health benefit plan be integrated with the benefits provided by
federal or state plans for health care services for the aged in which
there is federal or state financial participation. The board shall
adopt rules and regulations necessary to implement this section.
Notwithstanding any other provision of this part, those rules and
regulations may establish exclusions and limitations with respect to
benefits, different rates within health benefit plans for employees
or annuitants eligible for benefits under other plans, or enrollment
of those employees or annuitants in separate plans.
SEC. 87. Section 27393 of the Government Code is amended to read:
27393.
(a) The Attorney General shall, in consultation with interested
parties, adopt regulations for the review, approval, and oversight of
electronic recording delivery systems. Regulations shall be adopted
pursuant to the Administrative Procedure Act (Chapter 3.5 (commencing
with Section 11340) of Part 1 of Division 3). The regulations shall
comply with Section 12168.7.
(b) The regulations adopted pursuant to subdivision (a) may
include, but need not be limited to, all of the following:
(1) Establishment of baseline technological and procedural
specifications for electronic recording delivery systems.
(2) Requirements for security, capacity, reliability, and
uniformity.
(3) Requirements as to the nature and frequency of computer
security audits.
(4) A statement of a detailed and uniform definition of the term
"source code" consistent with paragraph (7) of subdivision (b) of
Section 27390, and as used in this article, and applicable to each
county's electronic recording delivery system.
(5) Requirements for placement of a copy of the operating system,
source code, compilers, and all related software associated with each
county's electronic recording delivery system in an approved escrow
facility prior to that system's first use.
(6) Requirements to ensure that substantive modifications to an
operating system, compilers, related software, or source code are
approved by the Attorney General.
(7) Procedures for initial certification of vendors offering
software and other services to counties for electronic recording
delivery systems.
(8) Requirements for system certification and for oversight of
approved systems.
(9) Requirements for fingerprinting and criminal records checks
required by Section 27395, including a list of employment positions
or classifications subject to criminal records checks under
subdivision (f) of that section.
(10) Requirements for uniform index information that shall be
included in every digitized or digital electronic record.
(11) Requirements for protecting proprietary information accessed
pursuant to subdivision (e) of Section 27394 from public disclosure.
(12) Requirements for certification under Section 27397.5.
(c) The Attorney General may promulgate any other regulations
necessary to fulfill his or her obligations under this article.
(d) An electronic recording delivery system shall be subject to
local inspection and review by the Attorney General. The Attorney
General shall furnish a statement of any relevant findings associated
with a local inspection of an electronic recording delivery system,
to the county recorder and the district attorney of the affected
county, and to all technology vendors associated with that system.
SEC. 88. Section 30061 of the Government Code is amended to read:
30061.
(a) There shall be established in each county treasury a
Supplemental Law Enforcement Services Fund (SLESF), to receive all
amounts allocated to a county for purposes of implementing this
chapter.
(b) In any fiscal year for which a county receives moneys to be
expended for the implementation of this chapter, the county auditor
shall allocate the moneys in the county's SLESF, including any
interest or other return earned on the investment of those moneys,
within 30 days of the deposit of those moneys into the fund, and
shall allocate those moneys in accordance with the requirements set
forth in this subdivision. However, the auditor shall not transfer
those moneys to a recipient agency until the Supplemental Law
Enforcement Oversight Committee certifies receipt of an approved
expenditure plan from the governing board of that agency. The moneys
shall be allocated as follows:
(1) Five and fifteen-hundredths percent to the county sheriff for
county jail construction and operation. In the case of Madera, Napa,
and Santa Clara Counties, this allocation shall be made to the county
director or chief of corrections.
(2) Five and fifteen-hundredths percent to the district attorney
for criminal prosecution.
(3) Thirty-nine and seven-tenths percent to the county and the
cities within the county, and, in the case of San Mateo, Kern,
Siskiyou, and Contra Costa Counties, also to the Broadmoor Police
Protection District, the Bear Valley Community Services District, the
Stallion Springs Community Services District, the Lake Shastina
Community Services District, and the Kensington Police Protection and
Community Services District, in accordance with the relative
population of the cities within the county and the unincorporated
area of the county, and the Broadmoor Police Protection District in
the County of San Mateo, the Bear Valley Community Services District
and the Stallion Springs Community Services District in Kern County,
the Lake Shastina Community Services District in Siskiyou County, and
the Kensington Police Protection and Community Services District in
Contra Costa County, as specified in the most recent January estimate
by the population research unit of the Department of Finance, and as
adjusted to provide a grant of at least one hundred thousand dollars
($100,000) to each law enforcement jurisdiction. For a newly
incorporated city whose population estimate is not published by the
Department of Finance, but that was incorporated prior to July 1 of
the fiscal year in which an allocation from the SLESF is to be made,
the city manager, or an appointee of the legislative body, if a city
manager is not available, and the county administrative or executive
officer shall prepare a joint notification to the Department of
Finance and the county auditor with a population estimate reduction
of the unincorporated area of the county equal to the population of
the newly incorporated city by July 15, or within 15 days after the
Budget Act is enacted, of the fiscal year in which an allocation from
the SLESF is to be made. No person residing within the Broadmoor
Police Protection District, the Bear Valley Community Services
District, the Stallion Springs Community Services District, the Lake
Shastina Community Services District, or the Kensington Police
Protection and Community Services District shall also be counted as
residing within the unincorporated area of the County of San Mateo,
Kern, Siskiyou, or Contra Costa, or within any city located within
those counties. The county auditor shall allocate a grant of at least
one hundred thousand dollars ($100,000) to each law enforcement
jurisdiction. Moneys allocated to the county pursuant to this
subdivision shall be retained in the county SLESF, and moneys
allocated to a city pursuant to this subdivision shall be deposited
in an SLESF established in the city treasury.
(4) Fifty percent to the county or city and county to implement a
comprehensive multiagency juvenile justice plan as provided in this
paragraph and to the Board of Corrections for administrative
purposes. Funding for the Board of Corrections, as determined by the
Department of Finance, shall not exceed two hundred seventy-five
thousand dollars ($275,000). For the 2003-04 fiscal year, of the two
hundred seventy-five thousand dollars ($275,000), up to one hundred
seventy-six thousand dollars ($176,000) may be used for juvenile
facility inspections. The juvenile justice plan shall be developed by
the local juvenile justice coordinating council in each county and
city and county with the membership described in Section 749.22 of
the Welfare and Institutions Code. If a plan has been previously
approved by the Board of Corrections, the plan shall be reviewed and
modified annually by the council. The plan or modified plan shall be
approved by the county board of supervisors, and in the case of a
city and county, the plan shall also be approved by the mayor. The
plan or modified plan shall be submitted to the Board of Corrections
by May 1, 2002, and annually thereafter.
(A) Juvenile justice plans shall include, but not be limited to,
all of the following components:
(i) An assessment of existing law enforcement, probation,
education, mental health, health, social services, drug and alcohol,
and youth services resources that specifically target at-risk
juveniles, juvenile offenders, and their families.
(ii) An identification and prioritization of the neighborhoods,
schools, and other areas in the community that face a significant
public safety risk from juvenile crime, such as gang activity,
daylight burglary, late-night robbery, vandalism, truancy, controlled
substances sales, firearm-related violence, and juvenile substance
abuse and alcohol use.
(iii) A local juvenile justice action strategy that provides for a
continuum of responses to juvenile crime and delinquency and
demonstrates a collaborative and integrated approach for implementing
a system of swift, certain, and graduated responses for at-risk
youth and juvenile offenders.
(iv) Programs identified in clause (iii) that are proposed to be
funded pursuant to this subparagraph, including the projected amount
of funding for each program.
(B) Programs proposed to be funded shall satisfy all of the
following requirements:
(i) Be based on programs and approaches that have been
demonstrated to be effective in reducing delinquency and addressing
juvenile crime for any elements of response to juvenile crime and
delinquency, including prevention, intervention, suppression, and
incapacitation.
(ii) Collaborate and integrate services of all the resources set
forth in clause (i) of subparagraph (A), to the extent appropriate.
(iii) Employ information sharing systems to ensure that county
actions are fully coordinated, and designed to provide data for
measuring the success of juvenile justice programs and strategies.
(iv) Adopt goals related to the outcome measures that shall be
used to determine the effectiveness of the local juvenile justice
action strategy.
(C) The plan shall also identify the specific objectives of the
programs proposed for funding and specified outcome measures to
determine the effectiveness of the programs and contain an accounting
for all program participants, including those who do not complete
the programs. Outcome measures of the programs proposed to be funded
shall include, but not be limited to, all of the following:
(i) The rate of juvenile arrests per 100,000 population.
(ii) The rate of successful completion of probation.
(iii) The rate of successful completion of restitution and
court-ordered community service responsibilities.
(iv) Arrest, incarceration, and probation violation rates of
program participants.
(v) Quantification of the annual per capita costs of the program.
(D) The Board of Corrections shall review plans or modified plans
submitted pursuant to this paragraph within 30 days upon receipt of
submitted or resubmitted plans or modified plans. The board shall
approve only those plans or modified plans that fulfill the
requirements of this paragraph, and shall advise a submitting county
or city and county immediately upon the approval of its plan or
modified plan. The board shall offer, and provide, if requested,
technical assistance to any county or city and county that submits a
plan or modified plan not in compliance with the requirements of this
paragraph. The SLESF shall only allocate funding pursuant to this
paragraph upon notification from the board that a plan or modified
plan has been approved.
(E) To assess the effectiveness of programs funded pursuant to
this paragraph using the program outcome criteria specified in
subparagraph (C), the following periodic reports shall be submitted:
(i) Each county or city and county shall report, beginning October
15, 2002, and annually each October 15 thereafter, to the county
board of supervisors and the Board of Corrections, in a format
specified by the Board of Corrections, on the programs funded
pursuant to this chapter and program outcomes as specified in
subparagraph (C).
(ii) The Board of Corrections shall compile the local reports and,
by March 15, 2003, and annually thereafter, make a report to the
Governor and the Legislature on program expenditures within each
county and city and county from the appropriation for the purposes of
this paragraph, on the outcomes as specified in subparagraph (C) of
the programs funded pursuant to this paragraph and the statewide
effectiveness of the comprehensive multiagency juvenile justice
plans.
(c) Subject to subdivision (d), for each fiscal year in which the
county, each city, the Broadmoor Police Protection District, the Bear
Valley Community Services District, the Stallion Springs Community
Services District, the Lake Shastina Community Services District, and
the Kensington Police Protection and Community Services District
receive moneys pursuant to paragraph (3) of subdivision (b), the
county, each city, and each district specified in this subdivision
shall appropriate those moneys in accordance with the following
procedures:
(1) In the case of the county, the county board of
supervisors shall appropriate existing and anticipated moneys
exclusively to provide frontline law enforcement services, other than
those services specified in paragraphs (1) and (2) of subdivision
(b), in the unincorporated areas of the county, in response to
written requests submitted to the board by the county sheriff and the
district attorney. Any request submitted pursuant to this paragraph
shall specify the frontline law enforcement needs of the requesting
entity, and those personnel, equipment, and programs that are
necessary to meet those needs. The board shall, at a public hearing
held at a time determined by the board in each year that the
Legislature appropriates funds for purposes of this chapter, or
within 30 days after a request by a recipient agency for a hearing if
the funds have been received by the county from the state prior to
that request, consider and determine each submitted request within 60
days of receipt, pursuant to the decision of a majority of a quorum
present. The board shall consider these written requests separate
and apart from the process applicable to proposed allocations of the
county general fund.
(2) In the case of a city, the city council shall appropriate
existing and anticipated moneys exclusively to fund frontline
municipal police services, in accordance with written requests
submitted by the chief of police of that city or the chief
administrator of the law enforcement agency that provides police
services for that city. These written requests shall be acted upon by
the city council in the same manner as specified in paragraph (1)
for county appropriations.
(3) In the case of the Broadmoor Police Protection District within
the County of San Mateo, the Bear Valley Community Services District
or the Stallion Springs Community Services District within Kern
County, the Lake Shastina Community Services District within Siskiyou
County, or the Kensington Police Protection and Community Services
District within Contra Costa County, the legislative body of that
special district shall appropriate existing and anticipated moneys
exclusively to fund frontline municipal police services, in
accordance with written requests submitted by the chief administrator
of the law enforcement agency that provides police services for that
special district. These written requests shall be acted upon by the
legislative body in the same manner specified in paragraph (1) for
county appropriations.
(d) For each fiscal year in which the county, a city, or the
Broadmoor Police Protection District within the County of San Mateo,
the Bear Valley Community Services District or the Stallion Springs
Community Services District within Kern County, the Lake Shastina
Community Services District within Siskiyou County, or the Kensington
Police Protection and Community Services District within Contra
Costa County receives any moneys pursuant to this chapter, in no
event shall the governing body of any of those recipient agencies
subsequently alter any previous, valid appropriation by that body,
for that same fiscal year, of moneys allocated to the county or city
pursuant to paragraph (3) of subdivision (b).
(e) Funds received pursuant to subdivision (b) shall be expended
or encumbered in accordance with this chapter no later than June 30
of the following fiscal year. A local agency that has not met this
requirement shall remit unspent SLESF moneys to the Controller for
deposit into the General Fund.
(f) If a county, a city, a city and county, or a qualifying
special district does not comply with the requirements of this
chapter to receive an SLESF allocation, the Controller shall revert
those funds to the General Fund.
SEC. 89. Section 31492.1 of the Government Code is amended to
read:
31492.1.
(a) Notwithstanding Section 31492, each monthly survivor allowance
paid pursuant to subdivision (a) of Section 31492 on account of a
member who retires on or after the operative date of this section
shall be equal to 55 percent of the retirement pension, if not
modified in accordance with the optional survivor allowance in
subdivision (c) or (d) of that section.
(b) This section is only applicable to Los Angeles County and is
not operative until the board of supervisors of that county elects,
by resolution adopted by a majority vote, to make this section
operative in the county.
SEC. 90. Section 31725.65 of the Government Code is amended to
read:
31725.65.
(a) When the board finds, based on medical advice, that a member
in county service is incapacitated for the performance of the member'
s duties, the board shall determine, based upon that medical advice,
whether the member may be capable of performing other duties. If the
board determines that a member, although incapacitated for the
performance of the member's duties, is capable of performing other
duties, the board shall notify the appropriate agency in county
service of its findings.
(b) When the appropriate agency in county service receives that
notification from the board, the agency shall immediately inform the
member of any vacant county positions that may be suitable for the
member, consistent with his or her disability, and shall consult with
the member in an effort to develop a reemployment plan that shall
identify what position, if any, in county service would be compatible
with the member's aptitudes, interests, and abilities.
(c) Upon approval by the member of the reemployment plan, the
appropriate agency in county service shall notify the board that the
agency is proceeding to implement the approved reemployment plan.
(d) Upon commencement of service by the member in the position
specified in the approved reemployment plan, the member shall not be
paid the disability retirement allowance to which the member would
otherwise be entitled during the entire period that the member
remains in county service. However, if the compensation rate of the
position specified in the approved reemployment plan is less than the
compensation rate of the position for which the member was
incapacitated, the board shall, in lieu of the disability retirement
allowance, pay to the member a supplemental disability allowance in
an amount equal to the difference between the compensation rate of
the position for which the member was incapacitated, applicable on
the date of the commencement of service by the member in the position
specified in the approved reemployment plan, and the compensation
rate of the position specified in the plan, applicable on the same
date. The supplemental disability allowance shall be adjusted
annually to equal the difference between the current compensation
rate of the position for which the member was incapacitated and the
current compensation of the position specified in the approved
reemployment plan. The supplemental disability allowance payments
shall commence upon suspension of the disability retirement allowance
and the amount of the payments shall not be greater than the
disability retirement allowance to which the member would otherwise
be entitled. Supplemental disability allowance payments made pursuant
to this section shall be considered as a charge against the county
advance reserve for current service, and all of these payments
received by a member shall be considered as a part of the member's
compensation within the meaning of Section 31460.
(e) From the time that the member is eligible to receive a
disability retirement allowance until the appropriate agency is able
to provide the position in county service specified in the approved
reemployment plan, and the member has commenced service in that
position, the disability retirement allowance to which the member is
entitled under this article shall be paid. Upon commencement of
service by the member in the position specified in the approved
reemployment plan, the period during which the member was receiving
disability retirement payments shall not be considered as breaking
the continuity of the member's service, and the rate of the member's
contributions shall continue to be based on the same age at entrance
into the retirement system on which the member's rates were based
prior to the date of the member's disability. The member's
accumulated contributions shall not be reduced as a result of the
member receiving the disability retirement payments, but shall be
increased by the amount of interest that would have accrued had the
member not been retired.
(f) Notwithstanding Section 31560, a member whose principal
duties, while serving in the position for which the member was
incapacitated, consisted of activities defined in Section 31469.3
shall, upon commencement of service by the member in the position
specified in the approved reemployment plan, continue to be
considered as satisfying the requirements of Section 31560,
notwithstanding the actual duties performed during the entire period
that the member remains in county service.
(g) This section shall apply only to members who are incapacitated
for the performance of the member's duties on or after January 1,
2004, and who are eligible to retire for service-connected
disability.
SEC. 91. Section 31755 of the Government Code is amended to read:
31755.
(a) (1) The Board of Supervisors of Contra Costa County may make
this section, Tier Three, applicable to officers and employees for
whom it is the governing body, by adopting an ordinance specifying
the future operative date of its application.
(2) As used in this section, "Tier One" refers to the retirement
plan covering general members not covered by Section 31751.
(3) After the board of supervisors has adopted an ordinance, the
governing body of a district not governed by the board of supervisors
may make this section applicable as Tier Three to its officers and
employees on and after the future operative date it specifies.
(b) Except as otherwise provided in this section, this section
shall cover all officers and employees who are members or return to
membership in the county's Tier Two retirement system established by
Section 31751 on or after the operative date specified in the
ordinance adopted pursuant to subdivision (a), and in a district on
or after the date of its applicability thereto.
(c) (1) This section shall not cover any employee who is in, or
eligible for, Tier One or safety membership under this chapter.
(2) This section shall not cover any person who is a member of the
retirement system in the county or district on or after the
operative date of its application thereto unless and until the person
voluntarily in writing irrevocably elects coverage.
(3) This section shall not be applicable to any eligible member
who does not elect coverage, is then laid off or terminates
employment, regardless of whether voluntarily or involuntarily, and
later returns to membership employment.
(4) This section shall not be applicable to any eligible member
who does not elect coverage, then retires or becomes a deferred
member, and later returns to active membership.
(5) This section shall not be applicable to any person referred to
in subparagraph (D) of paragraph (2) of subdivision (d) who does not
elect coverage.
(d) Upon adoption of this section by the board of supervisors, the
following provisions shall become applicable:
(1) Subject to the provisions of paragraph (2) of subdivision (d),
any qualified individual county or district employee may irrevocably
elect coverage under Tier Three.
(2) (A) County or district employees who are members of the county'
s Tier Two retirement system and who have attained five years'
credited service with the county or district on the applicable date
of this section, must elect Tier Three coverage in writing within six
months after that date.
(B) Persons not subject to subparagraph (A), who thereafter attain
five years' credited service in the county's Tier Two retirement
system, must elect Tier Three coverage in writing within 90 days
after attaining the five years' credited service.
(C) Persons not subject to subparagraph (A) or (B), who, before
the Tier Three applicability date, elected deferred retirement under
Article 9 (commencing with Section 31700) from the county's Tier Two
retirement system, and who had at least five years' credited Tier Two
service, and who thereafter while still in deferred status return to
active membership, must elect coverage in writing within 90 days
after that return.
(D) Persons not subject to subparagraph (A), (B), or (C), who
enter or reenter employment in the county or the district for the
first time after Tier Three is applicable thereto, and who have
reciprocal rights under Article 15 (commencing with Section 31830),
and who are otherwise eligible to elect Tier Three by virtue of their
Tier Two status and years of retirement credited service must elect
Tier Three coverage in writing within 90 days after that entry or
reentry.
(e) The board may not grant a disability retirement allowance to a
person who has become a Tier Three member except as provided in
Section 31720.1. The amount of disability retirement allowances under
Tier Three shall be as set forth in Section 31727.01.
(f) Notwithstanding any other provision of this chapter, service
retirements under Tier Three shall be governed by the same provisions
that govern Tier One retirements in Contra Costa County.
(g) Notwithstanding any other provision of this chapter, Tier
Three retired members who have retired for service shall only be
entitled to cost-of-living adjustments as provided by the board of
supervisors for Tier One retired members pursuant to Article 16.5
(commencing with Section 31830).
(h) Notwithstanding any other provision of this chapter, Tier
Three retired members who have been retired for disability shall only
be entitled to cost-of-living adjustments as provided by the board
of supervisors for Tier Two retired members pursuant to Article 16.5
(commencing with Section 31830).
(i) The board of supervisors may adopt regulations to implement
the provisions of this section.
SEC. 92. Section 31781.2 of the Government Code is amended to
read:
31781.2.
In lieu of accepting in cash the death benefit payable under
Section 31781 or 31781.01, the surviving spouse of a member who dies
prior to reaching the minimum retirement age and who at the date of
his or her death has 10 or more years of service to his or her
credit, shall have the option to leave the amount of the death
benefit on deposit in the retirement system until the earliest date
when the deceased member could have retired had he or she lived, and
at that time receive the retirement allowance provided for in Section
31765, 31765.1, or 31765.11, whichever is applicable.
If, at the death of the spouse, he or she is survived by one or
more unmarried children of the member, under the age of 18 years, the
retirement allowance shall continue to the child or children,
collectively, until every child dies, marries, or attains the age of
18 years. If the spouse dies, either before or after the death of the
member, without either making the election or receiving any portion
of the death benefit, and no part of the death benefit had been paid
to any person, prior to the payment of any benefits, the legally
appointed guardian of the children shall make the election herein
provided for on behalf of the surviving children as, in his or her
judgment, may appear to be in their interest and advantage, and the
election so made shall be binding and conclusive upon all parties in
interest.
Notwithstanding any other provisions of this section, the benefits
otherwise payable to the children of the member shall be paid to
those children through the age of 21 years if the children remain
unmarried and are regularly enrolled as full-time students in an
accredited school as determined by the board.
SEC. 93. Section 31831.2 of the Government Code is amended to
read:
31831.2.
Any member who left county or district service on or before
December 31, 1974, and became a member of a retirement system
established under this chapter in another county or of the Public
Employees' Retirement System, who did not elect to, or was not
eligible to, leave his or her contributions on deposit pursuant to
Article 9 (commencing with Section 31700) may now elect to leave his
or her accumulated contributions on deposit pursuant to Article 9
(commencing with Section 31700) by redepositing in the retirement
fund of the county or district he or she left the amount of
accumulated contributions and interest he or she withdrew from the
retirement fund plus regular interest thereon from date of
separation.
Any such member whose accumulated contributions are on deposit as
provided in this section and any other member who left county or
district service on or before December 31, 1974, who became a member
of a retirement system established under this chapter in another
county or of the Public Employees' Retirement System and who elected
to leave his or her accumulated contributions on deposit pursuant to
Article 9 (commencing with Section 31700) shall be eligible for the
benefits provided in this article, and for purposes of these benefits
shall be deemed to have entered membership in the other system
within 90 days, or six months if Section 31840.4 applies, of his or
her separation from county or district employment. The deferred
retirement allowance for the member shall be determined in accordance
with the provisions of this chapter applicable to a member retiring
directly from county employment on the date of his or her retirement.
Any member who qualifies for a reduced age at entry pursuant to this
section shall be entitled to use that age only from and after the
date he or she completes the redeposit as provided in this section
or, if he or she elected to leave his or her accumulated
contributions on deposit pursuant to Article 9 (commencing with
Section 31700), from and after the date he or she notifies the board
in writing that he or she desires the benefits of this section. This
section shall not apply to members who are retired or who are not in
service of an employer making him or her a member of a retirement
system established under this chapter or of the Public Employees'
Retirement System.
Unless this chapter expressly provides to the contrary, the
retirement allowance received by a member pursuant to this section
shall be calculated based upon the laws pertaining to the retirement
system of the district or county as of the date of retirement and not
the laws pertaining to the system as of the date the member first
left county or district service.
This section shall not be applicable to any member entering
service after December 31, 1979.
This section shall apply only in a county of the first class, as
established by Sections 28020 and 28022, but shall not be operative
in a county until adopted by resolution of the board of supervisors.
SEC. 94. Section 31874.6 of the Government Code is amended to
read:
31874.6.
(a) Notwithstanding any other provision of law, on an annual
basis, the board of retirement may, with the approval of the county
board of supervisors, grant a cost-of-living adjustment on a
prefunded basis to the retirement allowances, optional death
allowances, or annual death allowances payable to or on account of
eligible members. The action by the board of retirement may specify a
date as of which the adjustment shall be effective and, if no
effective date is specified, the adjustment shall be made in
allowances payable for the time commencing on the first day of the
month following the action by the board of retirement or approval by
the county board of supervisors, whichever is later.
(b) Before the board of retirement may grant an adjustment
pursuant to this section, the total costs of the adjustment shall be
determined by a qualified actuary and the board shall determine, with
the advice of the actuary, that full funding of the adjustment can
be provided from earnings of the retirement fund that are in excess
of the total interest credited to contributions and reserves plus 1
percent of the total assets of the retirement fund.
(c) The adjustment provided by this section shall be payable only
to those retired members, survivors, beneficiaries, or successors in
interest whose accumulated loss of purchasing power equals or exceeds
20 percent as of January 1 of the year the board of retirement takes
action pursuant to this section. Loss of purchasing power shall be
determined by the board of retirement based on the difference between
the following:
(1) The initial retirement allowance, optional death allowance, or
annual death allowance as it would have been increased by the
cumulative total effect of the annual changes, rounded to the nearest
one-half of 1 percent, in the Consumer Price Index for All Urban
Consumers for the area in which the county seat is situated.
(2) The retirement allowance, optional death allowance, or annual
death allowance as actually increased by cost-of-living adjustments
previously granted with respect to the allowance.
(d) A cost-of-living adjustment granted pursuant to this section
shall become part of the retirement allowance, optional death
allowance, or annual death allowance to be increased by any
subsequent cost-of-living adjustments. The granting of an increase
pursuant to this section in any particular year does not create any
continuing entitlement to additional increases in subsequent years,
and does not create any claim by a retired member, survivor,
beneficiary, or successor in interest against the county, district,
or retirement fund for any increase in any allowance paid or payable
prior to the effective date of the action by the board of retirement
pursuant to this section.
(e) This section shall only be applicable in a county of the 19th
class, as defined by Sections 28020 and 28040, as amended by Chapter
1204 of the Statutes of 1971.
SEC. 95. Section 51283.4 of the Government Code is amended to
read:
51283.4.
(a) Upon tentative approval of a petition accompanied by a
proposal for a specified alternative use of the land, the clerk of
the board or council shall record, in the office of the county
recorder of the county in which the land is located to which the
contract is applicable, a certificate of tentative cancellation. The
certificate shall set forth the name of the landowner requesting the
cancellation, the fact that a certificate of cancellation of contract
will be issued and recorded at the time that specified conditions
and contingencies are satisfied, a description of the conditions and
contingencies that must be satisfied, and a legal description of the
property. Conditions to be satisfied shall include payment in full of
the amount of the fee computed under the provisions of Section
51283, together with a statement that unless the fee is paid, or a
certificate of cancellation of contract is issued within one year
from the date of the recording of the certificate of tentative
cancellation, the fee shall be recomputed as of the date the
landowner requests a recomputation. A landowner may request a
recomputation when he or she believes that he or she will be able to
satisfy the conditions and contingencies of the certificate of
cancellation within 180 days. The board or council shall request the
assessor to recompute the cancellation valuation. The assessor shall
recompute the valuation, certify it to the board or council, and
provide notice to the Department of Conservation and landowner as
provided in subdivision (a) of Section 51283, and the board or
council shall certify the fee to the county auditor. Any provisions
related to the waiver of the fee or portion of the fee shall be
treated in the manner provided for in the certificate of tentative
cancellation. Contingencies to be satisfied shall include a
requirement that the landowner obtain all permits necessary to
commence the project. The board or council may, at the request of the
landowner, amend a tentatively approved specified alternative use if
it finds that the amendment is consistent with the findings made
pursuant to subdivision (a) of Section 51282.
(b) The landowner shall notify the board or council when he or she
has satisfied the conditions and contingencies enumerated in the
certificate of tentative cancellation. Within 30 days of receipt of
the notice, and upon a determination that the conditions and
contingencies have been satisfied, the board or council shall execute
a certificate of cancellation of contract, cause the certificate to
be recorded, and send a copy to the Director of Conservation.
(c) If the landowner has been unable to satisfy the conditions and
contingencies enumerated in the certificate of tentative
cancellation, the landowner shall notify the board or council of the
particular conditions or contingencies he or she is unable to
satisfy. Within 30 days of receipt of the notice, and upon a
determination that the landowner is unable to satisfy the conditions
and contingencies listed, the board or council shall execute a
certificate of withdrawal of tentative approval of a cancellation of
contract and cause the same to be recorded. However, the landowner
shall not be entitled to the refund of any cancellation fee paid.
SEC. 96. Section 53080 of the Government Code is amended to read:
53080.
(a) No city, county, city and county, or special district,
including, but not limited to, a community services district,
recreation and park district, regional park district, regional park
and open-space district, regional open-space park district, or resort
improvement district shall discriminate against any person on the
basis of sex or gender in the operation, conduct, or administration
of community youth athletics programs or in the allocation of parks
and recreation facilities and resources that support or enable these
programs.
(b) The Unruh Civil Rights Act (Section 51 of the Civil Code) has
been held to prohibit local governmental agencies from discriminating
on the bases proscribed by the act, and Section 11135 also prohibits
local governmental agencies that receive financial assistance from
the state from discriminating on the basis of gender, among other
bases.
(c) As used in this section, "community youth athletics program"
means any athletic program in which youth solely or predominantly
participate, that is organized for the purposes of training for and
engaging in athletic activity and competition, and that is in any way
operated, conducted, administered, supported, or enabled by a city,
county, city and county, or special
district.
(d) As used in this section, "parks and recreation facilities and
resources" include, but are not limited to, park facilities,
including, but not limited to, athletic fields, athletic courts,
gymnasiums, recreational rooms, restrooms, concession stands and
storage spaces; lands and areas accessed through permitting, leasing,
or other land use arrangements, or otherwise accessed through
cities, counties, cities and counties, or special districts; sports
and recreation equipment; devices used to promote athletics such as
scoreboards, banners, and advertising; and all moneys used in
conjunction with youth athletics.
(e) It is the intent of the Legislature in enacting this section
that girls shall be accorded opportunities for participation in
community youth athletics programs equal, both in quality and scope,
to those accorded to boys.
(f) In civil actions brought under this section or under other
applicable antidiscrimination laws alleging discrimination in
community youth athletics programs, courts shall consider the
following factors, among others, in determining whether
discrimination exists:
(1) Whether the selection of community youth athletics programs
offered effectively accommodate the athletic interests and abilities
of members of both genders.
(2) The provision of moneys, equipment, and supplies.
(3) Scheduling of games and practice times.
(4) Opportunity to receive coaching.
(5) Assignment and compensation of coaches.
(6) Access to lands and areas accessed through permitting,
leasing, or other land use arrangements, or otherwise accessed
through a city, a county, a city and county, or a special district.
(7) Selection of the season for a sport.
(8) Location of the games and practices.
(9) Locker rooms.
(10) Practice and competitive facilities.
(11) Publicity.
(12) Officiation by umpires, referees, or judges who have met
training and certification standards.
(g) In making the determination under paragraph (1) of subdivision
(f), a court shall assess whether the city, county, city and county,
or special district has effectively accommodated the athletic
interests and abilities of both genders in any one of the following
ways:
(1) The community youth athletics program opportunities for boys
and girls are provided in numbers substantially proportionate to
their respective numbers in the community.
(2) Where the members of one gender have been, and continue to be,
underrepresented in community youth athletics programs, the city,
county, city and county, or special district can show a history and
continuing practice of program expansion and allocation of resources
that are demonstrably responsive to the developing interests and
abilities of the members of that gender.
(3) Where the members of one gender are underrepresented in
community youth athletics programs, the city, county, city and
county, or special district can demonstrate that the interests and
abilities of the members of that gender have been fully and
effectively accommodated by the present program and allocation of
resources.
(h) Effective January 1, 2015, a city, county, city and county,
and special district may no longer rely on paragraph (2) of
subdivision (g) to show that they have accommodated the athletic
interests and abilities of both genders.
(i) Nothing in this section shall be construed to invalidate any
existing consent decree or any other settlement agreement entered
into by a city, county, city and county, or special district to
address gender equity in athletic programs.
(j) This section and any ordinances, regulations, or resolutions
adopted pursuant to this section by a city, county, city and county,
or special district may be enforced against a city, county, city and
county, or special district by a civil action for injunctive relief
or damages or both, which shall be independent of any other rights
and remedies.
SEC. 97. Section 53635 of the Government Code is amended to read:
53635.
(a) This section shall apply to a local agency that is a county, a
city and county, or other local agency that pools money in deposits
or investments with other local agencies, including local agencies
that have the same governing body. However, Section 53601 shall apply
to all local agencies that pool money in deposits or investments
exclusively with local agencies that have the same governing body.
This section shall be interpreted in a manner that recognizes the
distinct characteristics of investment pools and the distinct
administrative burdens on managing and investing funds on a pooled
basis pursuant to Article 6 (commencing with Section 27130) of
Chapter 5 of Division 2 of Title 3.
A local agency that is a county, a city and county, or other local
agency that pools money in deposits or investments with other
agencies may invest in commercial paper pursuant to subdivision (g)
of Section 53601, except that the local agency shall be subject to
the following concentration limits:
(1) No more than 40 percent of the local agency's money may be
invested in eligible commercial paper.
(2) No more than 10 percent of the local agency's money that may
be invested pursuant to this section may be invested in the
outstanding commercial paper of any single issuer.
(3) No more than 10 percent of the outstanding commercial paper of
any single issuer may be purchased by the local agency.
(b) Notwithstanding Section 53601, the City of Los Angeles shall
be subject to the concentration limits of this section for counties
and for cities and counties with regard to the investment of money in
eligible commercial paper.
SEC. 98. Section 54954.5 of the Government Code is amended to
read:
54954.5.
For purposes of describing closed session items pursuant to
Section 54954.2, the agenda may describe closed sessions as provided
below. No legislative body or elected official shall be in violation
of Section 54954.2 or 54956 if the closed session items were
described in substantial compliance with this section. Substantial
compliance is satisfied by including the information provided below,
irrespective of its format.
(a) With respect to a closed session held pursuant to Section
54956.7:
LICENSE/PERMIT DETERMINATION
Applicant(s): (Specify number of applicants)
(b) With respect to every item of business to be discussed in
closed session pursuant to Section 54956.8:
CONFERENCE WITH REAL PROPERTY NEGOTIATORS
Property: (Specify street address, or if no street address, the
parcel number or other unique reference, of the real property under
negotiation)
Agency negotiator: (Specify names of negotiators attending the
closed session) (If circumstances necessitate the absence of a
specified negotiator, an agent or designee may participate in place
of the absent negotiator so long as the name of the agent or designee
is announced at an open session held prior to the closed session.)
Negotiating parties: (Specify name of party (not agent))
Under negotiation: (Specify whether instruction to negotiator will
concern price, terms of payment, or both)
(c) With respect to every item of business to be discussed in
closed session pursuant to Section 54956.9:
CONFERENCE WITH LEGAL COUNSEL--EXISTING LITIGATION
(Subdivision (a) of Section 54956.9)
Name of case: (Specify by reference to claimant's name, names of
parties, case or claim numbers)
or
Case name unspecified: (Specify whether disclosure would
jeopardize service of process or existing settlement negotiations)
CONFERENCE WITH LEGAL COUNSEL--ANTICIPATED LITIGATION
Significant exposure to litigation pursuant to subdivision (b) of
Section 54956.9: (Specify number of potential cases)
(In addition to the information noticed above, the agency may be
required to provide additional information on the agenda or in an
oral statement prior to the closed session pursuant to subparagraphs
(B) to (E), inclusive, of paragraph (3) of subdivision (b) of Section
54956.9.)
Initiation of litigation pursuant to subdivision (c) of Section
54956.9: (Specify number of potential cases)
(d) With respect to every item of business to be discussed in
closed session pursuant to Section 54956.95:
LIABILITY CLAIMS
Claimant: (Specify name unless unspecified pursuant to Section
54961)
Agency claimed against: (Specify name)
(e) With respect to every item of business to be discussed in
closed session pursuant to Section 54957:
THREAT TO PUBLIC SERVICES OR FACILITIES
Consultation with: (Specify name of law enforcement agency and
title of officer, or name of applicable agency representative and
title)
PUBLIC EMPLOYEE APPOINTMENT
Title: (Specify description of position to be filled)
PUBLIC EMPLOYMENT
Title: (Specify description of position to be filled)
PUBLIC EMPLOYEE PERFORMANCE EVALUATION
Title: (Specify position title of employee being reviewed)
PUBLIC EMPLOYEE DISCIPLINE/DISMISSAL/RELEASE
(No additional information is required in connection with a closed
session to consider discipline, dismissal, or release of a public
employee. Discipline includes potential reduction of compensation.)
(f) With respect to every item of business to be discussed in
closed session pursuant to Section 54957.6:
CONFERENCE WITH LABOR NEGOTIATORS
Agency designated representatives: (Specify names of designated
representatives attending the closed session) (If circumstances
necessitate the absence of a specified designated representative, an
agent or designee may participate in place of the absent
representative so long as the name of the agent or designee is
announced at an open session held prior to the closed session.)
Employee organization: (Specify name of organization representing
employee or employees in question)
or
Unrepresented employee: (Specify position title of unrepresented
employee who is the subject of the negotiations)
(g) With respect to closed sessions called pursuant to Section
54957.8:
CASE REVIEW/PLANNING
(No additional information is required in connection with a closed
session to consider case review or planning.)
(h) With respect to every item of business to be discussed in
closed session pursuant to Sections 1461, 32106, and 32155 of the
Health and Safety Code or Sections 37606 and 37624.3 of the
Government Code:
REPORT INVOLVING TRADE SECRET
Discussion will concern: (Specify whether discussion will concern
proposed new service, program, or facility)
Estimated date of public disclosure: (Specify month and year)
HEARINGS
Subject matter: (Specify whether testimony/deliberation will
concern staff privileges, report of medical audit committee, or
report of quality assurance committee)
(i) With respect to every item of business to be discussed in
closed session pursuant to Section 54956.86:
CHARGE OR COMPLAINT INVOLVING INFORMATION PROTECTED BY FEDERAL LAW
(No additional information is required in connection with a closed
session to discuss a charge or complaint pursuant to Section
54956.86.)
(j) With respect to every item of business to be discussed in
closed session pursuant to Section 54956.96:
CONFERENCE INVOLVING A JOINT POWERS AGENCY (Specify by name)
Discussion will concern: (Specify closed session description used
by the joint powers agency)
Name of local agency representative on joint powers agency board:
(Specify name)
(Additional information listing the names of agencies or titles of
representatives attending the closed session as consultants or other
representatives.)
(k) With respect to every item of business to be discussed in
closed session pursuant to Section 54956.75:
AUDIT BY BUREAU OF STATE AUDITS
SEC. 99. Section 56700 of the Government Code, as amended by
Section 2 of Chapter 471 of the Statutes of 2004, is amended to read:
56700.
(a) A proposal for a change of organization or a reorganization
may be made by petition. The petition shall do all of the following:
(1) State that the proposal is made pursuant to this part.
(2) State the nature of the proposal and list all proposed changes
of organization.
(3) Set forth a description of the boundaries of affected
territory accompanied by a map showing the boundaries.
(4) Set forth any proposed terms and conditions.
(5) State the reason or reasons for the proposal.
(6) State whether the petition is signed by registered voters or
owners of land.
(7) Designate up to three persons as chief petitioners, setting
forth their names and mailing addresses.
(8) Request that proceedings be taken for the proposal pursuant to
this part.
(9) State whether the proposal is consistent with the sphere of
influence of any affected city or affected district.
(b) A petition for a proposal for a change of organization or a
reorganization that includes the consolidation of two or more special
districts not formed pursuant to the same principal act, in addition
to the requirements set forth in subdivision (a), shall do either of
the following:
(1) Designate the district that shall be the successor and specify
under which principal act the successor shall conduct itself.
(2) State that the proposal requires the formation of a new
district and includes a plan for services prepared pursuant to
Section 56653.
(c) This section shall become inoperative on July 1, 2008, and, as
of January 1, 2009, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2009, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 100. Section 56700 of the Government Code, as added by
Section 2.5 of Chapter 471 of the Statutes of 2004, is amended to
read:
56700.
(a) A proposal for a change of organization or a reorganization
may be made by petition. The petition shall do all of the following:
(1) State that the proposal is made pursuant to this part.
(2) State the nature of the proposal and list all proposed changes
of organization.
(3) Set forth a description of the boundaries of affected
territory accompanied by a map showing the boundaries.
(4) Set forth any proposed terms and conditions.
(5) State the reason or reasons for the proposal.
(6) State whether the petition is signed by registered voters or
owners of land.
(7) Designate up to three persons as chief petitioners, setting
forth their names and mailing addresses.
(8) Request that proceedings be taken for the proposal pursuant to
this part.
(9) State whether the proposal is consistent with the sphere of
influence of any affected city or affected district.
(b) This section shall become operative on July 1, 2008.
SEC. 101. Section 65053.5 of the Government Code is amended to
read:
65053.5.
(a) As used in this article, the following terms have the
following meanings:
(1) "Military installation" means a base, camp, post, station,
yard, center, homeport facility for any ship, or other facility under
the jurisdiction of the United States Department of Defense, as
defined in paragraph (1) of subsection (e) of Section 2687 of Title
10 of the United States Code.
(2) "Affected local government" means any county or city
identified as located wholly or partly within the boundaries of a
military installation or as having a sphere of influence over any
portion of the installation with responsibility for local zoning and
planning decisions.
(b) The Legislature hereby finds and declares all of the
following:
(1) Because of the tremendous economic impact that military
installations have on the state, it is in the best interest of the
state to facilitate their retention.
(2) It is the intent of the Legislature to encourage cooperation
among affected local governments in their efforts to retain military
installations in this state by authorizing the creation of a joint
powers authority pursuant to this section.
(3) The Legislature also encourages affected local governments to
engage other community-based organizations in their retention
activities.
(c) For the purposes of this article, a local retention authority
shall be recognized for each active military installation in this
state.
(d) A list of retention authorities or their successors,
including, but not limited to, separate airport or port authorities
recognized as the local retention authority for the military
installations, shall be maintained by the Office of Military and
Aerospace Support created pursuant to Section 13998.2. If multiple
affected local governments are identified for a military installation
as described in paragraph (2) of subdivision (a), those affected
counties and cities may, by resolution, designate an existing joint
powers authority or establish a joint powers authority for the
purposes of this article pursuant to Chapter 5 (commencing with
Section 6500) of Division 7 of Title 1.
(e) The state shall recognize a local retention authority for each
active military installation if resolutions acknowledging the
authority as the local retention authority are adopted by all county
boards of supervisors and city councils identified as described in
paragraph (2) of subdivision (a) and are forwarded to the Office of
Military and Aerospace Support on or before October 1, 2004. If prior
to January 1, 2004, a local government was awarded grant moneys
pursuant to any predecessor to Section 13998.8 for a specific
military installation and qualifies as an affected local government
as described in paragraph (2) of subdivision (a), the recipient local
government shall be recognized by the state as the local retention
authority unless resolutions acknowledging a different authority are
adopted by all county boards of supervisors and city councils
identified as described in paragraph (2) of subdivision (a), and are
forwarded to the Office of Military and Aerospace Support.
(f) If the necessary resolutions are not adopted within the time
limit specified in subdivision (e), the Office of Military and
Aerospace Support shall recognize a local retention authority for
each military installation.
SEC. 102. Section 65351 of the Government Code is amended to read:
65351.
During the preparation or amendment of the general plan, the
planning agency shall provide opportunities for the involvement of
citizens, California Native American Indian tribes, public agencies,
public utility companies, and civic, education, and other community
groups, through public hearings and any other means the planning
agency deems appropriate.
SEC. 103. Section 65460.1 of the Government Code is amended to
read:
65460.1.
(a) The Legislature hereby finds and declares all of the
following:
(1) Federal, state, and local governments in California are
investing in new and expanded transit systems in areas throughout the
state, including Los Angeles County, the San Francisco Bay area, San
Diego County, Santa Clara County, and Sacramento County.
(2) This public investment in transit is unrivaled in the state's
history and represents well over ten billion dollars
($10,000,000,000) in planned investment alone.
(3) Recent studies of transit ridership in California indicate
that persons who live within a quarter-mile radius of transit
stations utilize the transit system in far greater numbers than does
the general public living elsewhere.
(4) The use of transit by persons living near transit stations is
particularly important given the decline of transit ridership in
California between 1980 and 1990. Transit's share of commute trips
dropped in all California metropolitan areas--greater Los Angeles:
5.4 percent to 4.8 percent; San Francisco Bay area: 11.9 percent to
10.0 percent; San Diego: 3.7 percent to 3.6 percent; Sacramento: 3.7
percent to 2.5 percent.
(5) Only a few transit stations in California have any
concentration of housing proximate to the station.
(6) Interest in clustering housing and commercial development
around transit stations, called transit villages, has gained momentum
in recent years.
(b) For purposes of this article, the following definitions shall
apply:
(1) "Bus hub" means an intersection of three or more bus routes,
with a minimum route headway of 10 minutes during peak hours.
(2) "District" means a transit village development district as
defined in Section 65460.4.
(3) "Peak hours" means the time between 7 a.m. to 10 a.m.,
inclusive, and 3 p.m. to 7 p.m., inclusive, Monday through Friday.
(4) "Transit station" means a rail or light-rail station, ferry
terminal, bus hub, or bus transfer station.
SEC. 104. Section 66907.7 of the Government Code is amended to
read:
66907.7.
(a) The conservancy may award grants to local public agencies,
state agencies, federal agencies, federally recognized Indian tribes,
the Tahoe Transportation District established under Section 66801,
and nonprofit organizations, for the purposes of this title.
(b) Grants to nonprofit organizations for the acquisition of real
property or interests therein shall be subject to all of the
following conditions:
(1) The purchase price of any interest in land acquired by the
nonprofit organization may not exceed fair market value as
established by an appraisal approved by the conservancy.
(2) The conservancy approves the terms under which the interest in
land is acquired.
(3) The interest in land acquired pursuant to a grant from the
conservancy may not be used as security for any debt to be incurred
by the nonprofit organization unless the conservancy approves the
transaction.
(4) The transfer of land acquired pursuant to a grant shall be
subject to the approval of the conservancy and the execution of an
agreement between the conservancy and the transferee sufficient to
protect the interest of the people of California.
(5) The state shall have a right of entry and power of termination
in and over all interests in real property acquired with state
funds, which may be exercised if any essential term or condition of
the grant is violated.
(6) If the existence of the nonprofit organization is terminated
for any reason, title to all interest in real property acquired with
state funds shall immediately vest in the state, except that, prior
to that termination, another public agency or nonprofit organization
may receive title to all or a portion of that interest in real
property, by recording its acceptance of title, together with the
conservancy's approval, in writing.
(c) Any deed or other instrument of conveyance whereby real
property is being acquired by a nonprofit organization pursuant to
this section shall be recorded and shall set forth the executory
interest or right of entry on the part of the state.
(d) The relocation by a local public agency of a water- or
sewer-related infrastructure owned by a publicly owned utility shall
be considered an eligible expense by the conservancy for the purpose
of awarding soil erosion grant funds, if that relocation is intended
to control or reduce soil erosion caused by the infrastructure to be
relocated. A local public agency is eligible to receive grant funds
for up to two-thirds of the cost of relocating the water- or
sewer-related infrastructure, provided the relocation cost is not
eligible for any other public funding.
SEC. 105. Section 68085 of the Government Code is amended to read:
68085.
(a) (1) There is hereby established the Trial Court Trust Fund,
the proceeds of which shall be apportioned at least quarterly for the
purpose of funding trial court operations, as defined in Section
77003. Apportionment payments may not exceed 30 percent of the total
annual apportionment to the Trial Court Trust Fund for state trial
court funding in any 90-day period.
(2) The apportionment payments shall be made by the Controller.
The final payment from the Trial Court Trust Fund for each fiscal
year shall be made on or before August 31 of the subsequent fiscal
year.
(3) If apportionment payments are made on a quarterly basis, the
payments shall be on July 15, October 15, January 15, and April 15.
In addition to quarterly payments, a final payment from the Trial
Court Trust Fund for each fiscal year may be made on or before August
31 of the subsequent fiscal year.
(4) Notwithstanding any other provision of law, in order to
promote statewide efficiency, the Judicial Council may authorize the
direct payment or reimbursement or both of actual costs from the
Trial Court Trust Fund or the Trial Court Improvement Fund to fund
administrative infrastructure within the Administrative Office of the
Courts, such as legal services, financial services, information
systems services, human resource services, and support services, for
one or more participating courts upon appropriation of funding for
these purposes in the annual Budget Act. The amount of appropriations
from the Trial Court Improvement Fund under this subdivision may not
exceed 20 percent of the amount deposited in the Trial Court
Improvement Fund pursuant to subdivision (a) of Section 77205. Upon
prior written approval of the Director of Finance, the Judicial
Council may also authorize an increase in any reimbursements or
direct payments in excess of the amount appropriated in the annual
Budget Act. For any increases in reimbursements or direct payments
within the fiscal year that exceed two hundred thousand dollars
($200,000), the Director of Finance shall provide notification in
writing of any approval granted under this section, not less than 30
days prior to the effective date of that approval, to the chairperson
of the committee in each house of the Legislature that considers
appropriations, the chairpersons of the committees and the
appropriate subcommittees in each house of the Legislature that
consider the annual Budget Act, and the Chairperson of the Joint
Legislative Budget Committee, or not sooner than whatever lesser time
the Chairperson of the Joint Legislative Budget Committee, or his or
her designee, may in each instance determine. The direct payment or
reimbursement of costs from the Trial Court Trust Fund may be
supported by the reduction of a participating court's allocation from
the Trial Court Trust Fund to the extent that the court's
expenditures for the program are reduced and the court is supported
by the program. The Judicial Council shall provide the affected trial
courts with quarterly reports on expenditures from the Trial Court
Trust Fund incurred as authorized by this subdivision. The Judicial
Council shall establish procedures to provide for the administration
of this paragraph in
a way that promotes the effective, efficient, reliable, and
accountable operation of the trial courts.
(b) Notwithstanding any other provision of law, the fees listed in
subdivision (c) shall all be deposited upon collection in a special
account in the county treasury, and transmitted monthly to the
Controller for deposit in the Trial Court Trust Fund.
(c) (1) Except as specified in subdivision (d), this section
applies to all fees collected pursuant to Sections 116.230, 403.060,
and 631.3 of the Code of Civil Procedure and Sections 26820.4, 26823,
26826, 26826.01, 26827, 26827.4, 26830, 26832.1, 26833.1, 26835.1,
26836.1, 26837.1, 26838, 26850.1, 26851.1, 26852.1, 26853.1, 26855.4,
26862, 27081.5, 68086, 72055, 72056, 72056.01, and 72060.
(2) If any of the fees provided for in this subdivision is
partially waived by court order, and the fee is to be divided between
the Trial Court Trust Fund and any other fund, the amount of the
partial waiver shall be deducted from the amount to be distributed to
each fund in the same proportion as the amount of each distribution
bears to the total amount of the fee.
(3) Any amounts transmitted by a county to the Controller for
deposit into the Trial Court Trust Fund from fees collected pursuant
to Section 27361 between January 1, 1998, and the effective date of
this paragraph shall be credited against the total amount the county
is required to pay to the state pursuant to paragraph (2) of
subdivision (b) of Section 77201 for the 1997-98 fiscal year.
(d) This section does not apply to that portion of a filing fee
collected pursuant to Section 26820.4, 26826, 26827, 72055, or 72056
which is allocated for dispute resolution pursuant to Section 470.3
of the Business and Professions Code, the county law library pursuant
to Section 6320 of the Business and Professions Code, the Judges'
Retirement Fund pursuant to Section 26822.3, automated recordkeeping
or conversion to micrographics pursuant to Sections 26863 and
68090.7, and courthouse financing pursuant to Section 76238. This
section also does not apply to fees collected pursuant to
subdivisions (a) and (c) of Section 27361.
(e) This section applies to all payments required to be made to
the State Treasury by any county or city and county pursuant to
Section 77201, 77201.1, or 77205.
(f) Notwithstanding any other provision of law, no agency may take
action to change the amounts allocated to any of the funds described
in subdivision (a), (b), (c), or (d).
(g) Before making any apportionments under this section, the
Controller shall deduct, from the annual appropriation for that
purpose, the actual administrative costs that will be incurred under
this section. Costs reimbursed under this section shall be determined
on an annual basis in consultation with the Judicial Council.
(h) Any amounts required to be transmitted by a county, or city
and county, to the state pursuant to this section shall be remitted
to the Controller no later than 45 days after the end of the month in
which the fees were collected. This remittance shall be accompanied
by a remittance advice identifying the collection month and the
appropriate account in the Trial Court Trust Fund to which it is to
be deposited. Any remittance that is not made by the county or city
and county in accordance with this section shall be considered
delinquent, and subject to the penalties specified in this section.
(i) Upon receipt of any delinquent payment required pursuant to
this section, the Controller shall calculate a penalty on any
delinquent payment by multiplying the amount of the delinquent
payment at a daily rate equivalent to 1 1/2 percent per month for the
number of days the payment is delinquent. Notwithstanding Section
77009, any penalty on a delinquent payment that a court is required
to reimburse to a county's general fund pursuant to this section and
Section 24353 shall be paid from the Trial Court Operations Fund for
that court.
(j) Penalty amounts calculated pursuant to subdivision (i) shall
be paid by the county to the Trial Court Trust Fund no later than 45
days after the end of the month in which the penalty was calculated.
(k) The Trial Court Trust Fund shall be invested in the Surplus
Money Investment Fund and all interest earned shall be allocated to
the Trial Court Trust Fund semiannually and shall be allocated among
the courts in accordance with the requirements of subdivision (a).
The specific allocations shall be specified by the Judicial Council.
(l) It is the intent of the Legislature that the revenues required
to be deposited into the Trial Court Trust Fund be remitted as soon
after collection by the courts as possible.
SEC. 106. Section 68115 of the Government Code is amended to read:
68115.
When war, insurrection, pestilence, or other public calamity, or
the danger thereof, or the destruction of or danger to the building
appointed for holding the court, renders it necessary, or when a
large influx of criminal cases resulting from a large number of
arrests within a short period of time threatens the orderly operation
of a superior court location or locations within a county, the
presiding judge may request and the Chairperson of the Judicial
Council may, notwithstanding any other provision of law, by order
authorize the court to do one or more of the following:
(a) Hold sessions anywhere within the county.
(b) Transfer civil cases pending trial in the court to a superior
court in an adjacent county. No transfer may be made pursuant to this
subdivision except with the consent of all parties to the case or
upon a showing by a party that extreme or undue hardship would result
unless the case is transferred for trial. Any civil case so
transferred shall be integrated into the existing caseload of the
court to which it is transferred pursuant to rules to be provided by
the Judicial Council.
(c) Declare that a date or dates on which an emergency condition,
as described in this section, substantially interfered with the
public's ability to file papers in a court facility or facilities be
deemed a holiday for purposes of computing the time for filing papers
with the court under Sections 12 and 12a of the Code of Civil
Procedure. This subdivision shall apply to the fewest days necessary
under the circumstances of the emergency, as determined by the
Chairperson of the Judicial Council.
(d) Declare that a date on which an emergency condition, as
described in this section, prevented the court from conducting
proceedings governed by Section 825 of the Penal Code, or Section
313, 315, 631, 632, 637, or 657 of the Welfare and Institutions Code,
be deemed a holiday for purposes of computing time under those
statutes. This subdivision shall apply to the fewest days necessary
under the circumstances of the emergency, as determined by the
Chairperson of the Judicial Council.
(e) Extend the duration of any temporary restraining order that
would otherwise expire because an emergency condition, as described
in this section, prevented the court from conducting proceedings to
determine whether a permanent order should be entered. The extension
shall be for the fewest days necessary under the circumstances of the
emergency, as determined by the Chairperson of the Judicial Council.
(f) Within the affected county during a state of emergency
resulting from a natural or human-made disaster proclaimed by the
President of the United States or by the Governor pursuant to Section
8625 of the Government Code, extend the time period provided in
Section 825 of the Penal Code within which a defendant charged with a
felony offense shall be taken before a magistrate from 48 hours to
not more than seven days, with the number of days to be designated by
the Chairperson of the Judicial Council. This authorization shall be
effective for 30 days unless it is extended by a new request and a
new order.
(g) Extend the time period provided in Section 859b of the Penal
Code for the holding of a preliminary examination from 10 court days
to not more than 15 days.
(h) Extend the time period provided in Section 1382 of the Penal
Code within which the trial must be held by not more than 30 days,
but the trial of a defendant in custody whose time is so extended
shall be given precedence over all other cases.
(i) Within the affected area of a county during a state of
emergency resulting from a natural or human-made disaster proclaimed
by the President of the United States or by the Governor pursuant to
Section 8625 of the Government Code, extend the time period provided
in Sections 313, 315, 632, and 637 of the Welfare and Institutions
Code within which a minor shall be given a detention hearing, with
the number of days to be designated by the Chairperson of the
Judicial Council. The extension of time shall be for the shortest
period of time necessary under the circumstances of the emergency,
but in no event shall the time period within which a detention
hearing must be given be extended to more than seven days. This
authorization shall be effective for 30 days unless it is extended by
a new request and a new order. This subdivision shall apply only
where the minor has been charged with a felony.
(j) Within the affected county during a state of emergency
resulting from a natural or human-made disaster proclaimed by the
President of the United States or by the Governor pursuant to Section
8625 of the Government Code, extend the time period provided in
Sections 334 and 657 of the Welfare and Institutions Code within
which an adjudication on a juvenile court petition shall be held by
not more than 15 days, with the number of days to be designated by
the Chairperson of the Judicial Council. This authorization shall be
effective for 30 days unless it is extended by a new request and a
new order. This subdivision shall apply only where the minor has been
charged with a felony.
SEC. 107. Section 68927 of the Government Code is amended to read:
68927.
The fee for filing a petition for review in a civil case in the
Supreme Court after a decision in a court of appeal is four hundred
twenty dollars ($420). A fee may not be charged for petitions for
review from decisions in juvenile cases or proceedings to declare a
minor free from parental custody or control or proceedings under the
Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of
Division 5 of the Welfare and Institutions Code).
SEC. 108. Section 69927 of the Government Code is amended to read:
69927.
(a) It is the intent of the Legislature in enacting this section
to develop a definition of the court security component of court
operations that modifies Function 8 of Rule 810 of the California
Rules of Court in a manner that will standardize billing and
accounting practices and court security plans, and identify allowable
law enforcement security costs after the operative date of this
article. It is not the intent of the Legislature to increase or
decrease the responsibility of a county for the cost of court
operations, as defined in Section 77003 or Rule 810 of the California
Rules of Court, as it read on July 1, 1996, for court security
services provided prior to January 1, 2003. It is the intent of the
Legislature that a sheriff's or marshal's court law enforcement
budget not be reduced as a result of this article. Any new court
security costs permitted by this article shall not be operative
unless the funding is provided by the Legislature.
(1) The Judicial Council shall adopt a rule establishing a working
group on court security. The group shall consist of six
representatives from the judicial branch of government, as selected
by the Administrative Director of the Courts, two representatives of
the counties, as selected by the California State Association of
Counties, and three representatives of the county sheriffs, as
selected by the California State Sheriffs' Association. It is the
intent of the Legislature that this working group may recommend
modifications only to the template used to determine that the
security costs submitted by the courts to the Administrative Office
of the Courts are permitted pursuant to this article. The template
shall be a part of the trial court's financial policies and
procedures manual and used in place of the definition of law
enforcement costs in Function 8 of Rule 810 of the California Rules
of Court. If the working group determines that there is a need to
make recommendations to the template that specifically involve law
enforcement or security personnel in courtrooms or court detention
facilities, the membership of the working group shall change and
consist of six representatives from the judicial branch of government
selected by the Administrative Director of the Courts, two
representatives of the counties selected by the California State
Association of Counties, two representatives of the county sheriffs
selected by the California State Sheriffs' Association, and two
representatives of labor selected by the California Coalition of Law
Enforcement Associations.
(2) The Judicial Council shall establish a working group on court
security to promulgate recommended uniform standards and guidelines
that may be used by the Judicial Council and any sheriff or marshal
for the implementation of trial court security services. The working
group shall consist of representatives from the judicial branch of
government, the California State Sheriffs' Association, the
California State Association of Counties, the Peace Officer's
Research Association of California, and the California Coalition of
Law Enforcement Associations, for the purpose of developing
guidelines. The Judicial Council, after requesting and receiving
recommendations from the working group on court security, shall
promulgate and implement rules, standards, and policy directions for
the trial courts in order to achieve efficiencies that will reduce
security operating costs and constrain growth in those costs.
(3) When mutually agreed to by the courts, county, and the sheriff
or marshal in any county, the costs of perimeter security in any
building that the court shares with any county agency, excluding the
sheriff's or marshal's department, shall be apportioned based on the
amount of the total noncommon square feet of space occupied by the
court and any county agency.
(4) "Allowable costs for equipment, services, and supplies," as
defined in the contract law enforcement template, means the purchase
and maintenance of security screening equipment and the costs of
ammunition, batons, bulletproof vests, handcuffs, holsters, leather
gear, chemical spray and holders, radios, radio chargers and holders,
uniforms, and one primary duty sidearm.
(5) "Allowable costs for professional support staff for court
security operations," as defined in the contract law enforcement
template, means the salary, benefits, and overtime of staff
performing support functions that, at a minimum, provide payroll,
human resources, information systems, accounting, or budgeting.
Allowable costs for professional support staff for court security
operations in each trial court shall not exceed 6 percent of total
allowable costs for law enforcement security personnel services in
courts with total allowable costs for law enforcement security
personnel services less than ten million dollars ($10,000,000) per
year. Allowable costs for professional support staff for court
security operations for each trial court shall not exceed 4 percent
of total allowable costs for law enforcement security personnel
services in courts with total allowable costs for law enforcement
security personnel services exceeding ten million dollars
($10,000,000) per year. Additional costs for services related to
court-mandated special project support, beyond those provided for in
the contract law enforcement template, are allowable only when
negotiated by the trial court and the court law enforcement provider.
Allowable costs shall not exceed actual costs of providing support
staff services for law enforcement security personnel services.
The working group established pursuant to paragraph (1) of
subdivision (a) may periodically recommend changes to the limit for
allowable costs for professional support staff for court security
operations based on surveys of actual expenditures incurred by trial
courts and the court law enforcement provider in the provision of law
enforcement security personnel services. Limits for allowable costs
as stated in this section shall remain in effect until changes are
recommended by the working group and adopted by the Judicial Council.
(6) "Allowable costs for security personnel services," as defined
in the contract law enforcement template, means the salary and
benefits of an employee, including, but not limited to, county health
and welfare, county incentive payments, deferred compensation plan
costs, FICA or Medicare, general liability premium costs, leave
balance payout commensurate with an employee's time in court security
services as a proportion of total service credit earned after
January 1, 1998, premium pay, retirement, state disability insurance,
unemployment insurance costs, workers' compensation paid to an
employee in lieu of salary, workers' compensation premiums of
supervisory security personnel through the rank of captain, line
personnel, inclusive of deputies, court attendants, contractual law
enforcement services, prisoner escorts within the courts, and weapons
screening personnel, court required training, and overtime and
related benefits of law enforcement supervisory and line personnel.
(A) The Administrative Office of the Courts shall use the actual
salary and benefits costs approved for court law enforcement
personnel as of June 30 of each year in determining the funding
request that will be presented to the Department of Finance.
(B) Courts and court security providers shall manage their
resources to minimize the use of overtime.
(7) "Allowable costs for vehicle use for court security needs," as
defined in the contract law enforcement template, means the per-mile
recovery cost for vehicles used in rendering court law enforcement
services, exclusive of prisoner or detainee transport to or from
court. The standard mileage rate applied against the miles driven for
the above shall be the standard reimbursable mileage rate in effect
for judicial officers and employees at the time of contract
development.
(b) Nothing in this article may increase a county's obligation or
require any county to assume the responsibility for a cost of any
service that was defined as a court operation cost, as defined by
Function 8 of Rule 810 of the California Rules of Court, as it read
on July 1, 1996, or that meets the definition of any new law
enforcement component developed pursuant to this article.
SEC. 109. Section 70367 of the Government Code is amended to read:
70367.
(a) Within 30 days after the Administrative Director of the Courts
has mailed to the county, pursuant to subdivision (d) of Section
70363, the approved county facilities payment, the Administrative
Director of the Courts may submit a declaration to the Court
Facilities Dispute Resolution Committee, with copies mailed to the
other parties, that the amount is incorrect because the county failed
to report court facilities expenses paid by the county which reduced
the amount of the approved county facilities payment.
(b) The county shall mail its comments to the Court Facilities
Dispute Resolution Committee on the administrative director's
declaration within 30 days of the mailing of the administrative
director's declaration, with copies mailed to the other parties.
(c) Within 90 days of receipt of comments pursuant to subdivision
(b), the Court Facilities Dispute Resolution Committee shall review
the declarations and comments received, and make its recommendation
to the Director of Finance concerning correction of any errors and,
if necessary, an adjustment of the amount of the county facilities
payment. The Court Facilities Dispute Resolution Committee shall
mail a copy of its recommendation to all the parties.
(d) The Director of Finance or his or her designee shall review
the recommendations of the Court Facilities Dispute Resolution
Committee and make his or her determination concerning any correction
of errors and, if necessary, an adjustment of the amount of the
county facilities payment. The director shall serve a copy of his or
her determination on all the parties.
SEC. 110. Section 71622 of the Government Code is amended to read:
71622.
(a) Each trial court may establish and may appoint any subordinate
judicial officers that are deemed necessary for the performance of
subordinate judicial duties, as authorized by law to be performed by
subordinate judicial officers. However, the number and type of
subordinate judicial officers in a trial court shall be subject to
approval by the Judicial Council. Subordinate judicial officers shall
serve at the pleasure of the trial court.
(b) The appointment or termination of a subordinate judicial
officer shall be made by order of the presiding judge or another
judge or a committee to whom appointment or termination authority is
delegated by the court, and shall be entered in the minutes of the
court.
(c) The Judicial Council shall promulgate rules establishing the
minimum qualifications and training requirements for subordinate
judicial officers.
(d) The presiding judge of a superior court may cross-assign one
type of subordinate judicial officer to exercise all the powers and
perform all the duties authorized by law to be performed by another
type of subordinate judicial officer, but only if the person
cross-assigned satisfies the minimum qualifications and training
requirements for the new assignment established by the Judicial
Council pursuant to subdivision (c).
(e) The superior courts of two or more counties may appoint the
same person as court commissioner.
(f) As of the implementation date of this chapter, all persons who
were authorized to serve as subordinate judicial officers pursuant
to other provisions of law shall be authorized by this section to
serve as subordinate judicial officers at their existing salary rate,
which may be a percentage of the salary of a judicial officer.
(g) A subordinate judicial officer who has been duly appointed and
has thereafter retired from service may be assigned by a presiding
judge to perform subordinate judicial duties consistent with
subdivision (a). The retired subordinate judicial officer shall be
subject to the limits, if any, on postretirement service prescribed
by the Public Employees' Retirement System, the county
defined-benefit retirement system, as defined in subdivision (f) of
Section 71624, or any other defined-benefit retirement plan from
which the retired officer is receiving benefits. The retired
subordinate judicial officer shall be compensated by the assigning
court at a rate not to exceed 85 percent of the compensation of a
retired judge assigned to a superior court.
SEC. 111. Section 82036 of the Government Code is amended to read:
82036.
"Late contribution" means any of the following:
(a) Any contribution, including a loan, that totals in the
aggregate one thousand dollars ($1,000) or more that is made to or
received by a candidate, a controlled committee, or a committee
formed or existing primarily to support or oppose a candidate or
measure before the date of the election at which the candidate or
measure is to be voted on but after the closing date of the last
campaign statement required to be filed before the election.
(b) Any contribution, including a loan, that totals in the
aggregate one thousand dollars ($1,000) or more that is made to or
received by a political party committee, as defined in Section 85205,
before the date of any state election, but after the closing date of
the last campaign statement required to be filed before the
election.
SEC. 112. Section 84602 of the Government Code is amended to read:
84602.
To implement the Legislature's intent, the Secretary of State, in
consultation with the commission, notwithstanding any other provision
of the Government Code, shall do all of the following:
(a) Develop online and electronic filing processes for use by
persons and entities specified in Sections 84604 and 84605 that are
required to file statements and reports with the Secretary of State's
office pursuant to Chapter 4 (commencing with Section 84100) and
Chapter 6 (commencing with Section 86100). Those processes shall each
enable a user to comply with all the disclosure requirements of this
title and shall include, at a minimum, the following:
(1) A means or method whereby filers subject to this chapter may
submit required filings free of charge. Any means or method developed
pursuant to this provision shall not provide any additional or
enhanced functions or services that exceed the minimum requirements
necessary to fulfill the disclosure provisions of this title. At
least one means or method shall be made available no later than
December 31, 2002.
(2) The definition of a nonproprietary standardized record format
or formats using industry standards for the transmission of the data
that is required of those persons and entities specified in
subdivision (a) of Section 84604 and Section 84605 and that conforms
with the disclosure requirements of this title. The Secretary of
State shall hold public hearings prior to development of the record
format or formats as a means to ensure that affected entities have an
opportunity to provide input into the development process. The
format or formats shall be made public no later than July 1, 1999, to
ensure sufficient time to comply with the requirements of this
chapter.
(b) Accept test files from software vendors and others wishing to
file reports electronically, for the purpose of determining whether
the file format is in compliance with the standardized record format
developed pursuant to subdivision (a) and is compatible with the
Secretary of State's system for receiving the data. A list of the
software and service providers who have submitted acceptable test
files shall be published by the Secretary of State and made available
to the public. Acceptably formatted files shall be submitted by a
filer in order to meet the requirements of this chapter.
(c) Develop a system that provides for the online or electronic
transfer of the data specified in this section utilizing
telecommunications technology that assures the integrity of the data
transmitted and that creates safeguards against efforts to tamper
with or subvert the data.
(d) Make all the
data filed available on the Internet in an easily understood format
that provides the greatest public access. The data shall be made
available free of charge and as soon as possible after receipt. All
late contribution and late independent expenditure reports, as
defined by Sections 84203 and 84204, respectively, shall be made
available on the Internet within 24 hours of receipt. The data made
available on the Internet shall not contain the street name and
building number of the persons or entity representatives listed on
the electronically filed forms or any bank account number required to
be disclosed pursuant to this title.
(e) Develop a procedure for filers to comply with the requirement
that they sign under penalty of perjury pursuant to Section 81004.
(f) Maintain all filed data online for 10 years after the date it
is filed, and then archive the information in a secure format.
(g) Provide assistance to those seeking public access to the
information.
(h) Implement sufficient technology to seek to prevent
unauthorized alteration or manipulation of the data.
(i) Provide the commission with necessary information to enable it
to assist agencies, public officials, and others, with the
compliance with and administration of this title.
(j) Report to the Legislature on the implementation and
development of the online and electronic filing and disclosure
requirements of this chapter. The report shall include an examination
of system security, private security issues, software availability,
compliance costs to filers, use of the filing system and software
provided by the Secretary of State, and other issues relating to this
chapter, and shall recommend appropriate changes if necessary. In
preparing the report, the commission may present to the Secretary of
State and the Legislature its comments regarding this chapter as it
relates to the duties of the commission and suggest appropriate
changes if necessary. There shall be one report due before the system
is operational as set forth in Section 84603, one report due no
later than June 1, 2002, and one report due no later than January 31,
2003.
(k) Review the current filing and disclosure requirements of this
chapter and report to the Legislature, no later than June 1, 2005,
recommendations on revising these requirements so as to promote
greater reliance on electronic and online submissions.
SEC. 113. Section 90004 of the Government Code is amended to read:
90004.
(a) The Franchise Tax Board shall periodically prepare reports,
which, except as otherwise provided in this section, shall be sent to
the commission, the Secretary of State, and the Attorney General. If
the reports relate to candidates for or committees supporting or
opposing candidates for the office of Attorney General, the reports
shall be sent to the commission, the Secretary of State, and the
District Attorneys of Los Angeles, Sacramento, and San Francisco
Counties. If the reports relate to local candidates and their
controlled committees, the reports shall be sent to the commission,
the local filing officer with whom the candidate or committee is
required to file the originals of campaign reports pursuant to
Section 84215, and the district attorney for the candidate's county
of domicile.
(b) The Franchise Tax Board shall complete its report of any audit
conducted on a random basis pursuant to Section 90001 within one
year after the person or entity subject to the audit is selected by
the commission to be audited.
(c) The reports of the Franchise Tax Board shall be public
documents and shall contain in detail the Franchise Tax Board's
findings with respect to the accuracy and completeness of each report
and statement reviewed and its findings with respect to any report
or statement that should have been but was not filed. The Secretary
of State and the local filing officer shall place the audit reports
in the appropriate campaign statement or lobbying files.
SEC. 114. Section 1179.2 of the Health and Safety Code is amended
to read:
1179.2.
(a) The Health and Welfare Agency shall establish an
interdepartmental Task Force on Rural Health to coordinate rural
health policy development and program operations and to develop a
strategic plan for rural health.
(b) At a minimum, the following state departmental directors, or
their representatives, shall participate on this task force:
(1) The Director of Health Services.
(2) The Director of Statewide Health Planning and Development.
(3) The Director of Alcohol and Drug Programs.
(4) The Director of the Emergency Medical Services Authority.
(5) The Director of Mental Health.
(6) The Executive Director of the Managed Risk Medical Insurance
Board.
(c) The task force shall review and direct the activities of the
Office of Rural Health or the alternative organizational structure,
as determined by the Secretary of the Health and Welfare Agency.
(d) The task force shall establish appropriate mechanisms, such as
ad hoc or standing advisory committees or the holding of public
hearings in rural communities, for the purpose of soliciting and
receiving input from these communities, including input from rural
hospitals, rural clinics, health care service plans, local
governments, academia, and consumers.
SEC. 115. Section 1351.2 of the Health and Safety Code, as added
by Section 2 of Chapter 491 of the Statutes of 2004, is amended to
read:
1351.2.
(a) If a prepaid health plan operating lawfully under the laws of
Mexico elects to operate a health care service plan in this state,
the prepaid health plan shall apply for licensure as a health care
service plan under this chapter by filing an application for
licensure in the form prescribed by the department and verified by an
authorized representative of the applicant. The prepaid health plan
shall be subject to the provisions of this chapter, and the rules
adopted by the director thereunder, as determined by the director to
be applicable. The application shall be accompanied by the fee
prescribed by subdivision (a) of Section 1356 and shall demonstrate
compliance with the following requirements:
(1) The prepaid health plan is constituted and operating lawfully
under the laws of Mexico and, if required by Mexican law, is
authorized as an Insurance Institution Specializing in Health by the
Mexican Insurance Commission. If the Mexican Insurance Commission
determines that the prepaid health plan is not required to be
authorized as an Insurance Institution Specializing in Health under
the laws of Mexico, the applicant shall obtain written verification
from the Mexican Insurance Commission stating that the applicant is
not required to be authorized as an Insurance Institution
Specializing in Health in Mexico. A Mexican prepaid health plan not
required to be an Insurance Institution Specializing in Health shall
obtain written verification from the Mexican Ministry of Health that
the prepaid health plan and its provider network are operating in
full compliance with Mexican law.
(2) The prepaid health plan offers and sells in this state only
employer-sponsored group plan contracts exclusively for the benefit
of citizens of Mexico legally employed in this state, and for the
benefit of their dependents regardless of nationality, that pay for,
reimburse the cost of, or arrange for the provision or delivery of
health care services that are to be provided or delivered wholly in
Mexico, except for the provision or delivery of those health care
services set forth in paragraph (4).
(3) Solicitation of plan contracts in this state is made only
through insurance brokers and agents licensed in this state or a
third-party administrator licensed in this state, each of whom is
authorized to offer and sell plan group contracts.
(4) Group contracts provide, through a contract of insurance
between the prepaid health plan and an insurer admitted in this
state, for the reimbursement of emergency and urgent care services
provided out of area as required by subdivision (h) of Section 1345.
(5) All advertising, solicitation material, disclosure statements,
evidences of coverage, and contracts are in compliance with the
appropriate provisions of this chapter and the rules or orders of the
director. The director shall require that each of these documents
contain a legend in 10-point type, in both English and Spanish,
declaring that the health care service plan contract provided by the
prepaid health plan may be limited as to benefits, rights, and
remedies under state and federal law.
(6) All funds received by the prepaid health plan from a
subscriber are deposited in an account of a bank organized under the
laws of this state or in an account of a national bank located in
this state.
(7) The prepaid health plan maintains a tangible net equity as
required by this chapter and the rules of the director, as calculated
under United States generally accepted accounting principles, in the
amount of at least one million dollars ($1,000,000). In lieu of an
amount in excess of the minimum tangible net equity of one million
dollars ($1,000,000), the prepaid health plan may demonstrate a
reasonable, acceptable alternative reimbursement arrangement that the
director may in his or her discretion accept. The prepaid health
plan shall also maintain a fidelity bond and a surety bond as
required by Section 1376 and the rules of the director.
(8) The prepaid health plan agrees to make all of its books and
records, including the books and records of health care providers in
Mexico, available to the director in the form and at the time and
place requested by the director. Books and records shall be made
available to the director no later than 24 hours from the date of the
request.
(9) The prepaid health plan files a consent to service of process
with the director and agrees to be subject to the laws of this state
and the United States in any investigation, examination, dispute, or
other matter arising from the advertising, solicitation, or offer and
sale of a plan contract, or the management or provision of health
care services in this state or throughout the United States. The
prepaid health plan shall agree to notify the director, immediately
and in no case later than one business day, if it is subject to any
investigation, examination, or administrative or legal action
relating to the prepaid health plan or the operations of the prepaid
health plan initiated by the government of Mexico or the government
of any state of Mexico against the prepaid health plan or any
officer, director, security holder, or contractor owning 10 percent
or more of the securities of the prepaid health plan. The prepaid
health plan shall agree that in the event of conflict of laws in any
action arising out of the license, the laws of California and the
United States shall apply.
(10) The prepaid health plan agrees that disputes arising from the
group contracts involving group contractholders and providers of
health care services in the United States shall be subject to the
jurisdiction of the courts of this state and the United States.
(b) The prepaid health plan shall pay the application processing
fee and other fees and assessments set forth in Section 1356. The
director, by order, may designate provisions of this chapter and
rules adopted thereunder that need not be applied to a prepaid health
plan licensed under the laws of Mexico when consistent with the
intent and purpose of this chapter, and in the public interest.
(c) If the plan ceases to operate legally in Mexico, the director
shall immediately deliver written notice to the health care service
plan that it is not in compliance with the provisions of this
section. If this occurs, a health care service plan shall do all of
the following:
(1) Provide the director with written proof that the prepaid
health plan has complied with the laws of Mexico not later than 45
days after the date the written notice is received by the health care
service plan.
(2) If, by the 45th day, the health care service plan is unable to
provide written confirmation that it is in full compliance with
Mexican law, the director shall notify the health care service plan
in writing that it is prohibited from accepting any new enrollees or
subscribers. The health care service plan shall be given an
additional 180 days to comply with Mexican law or to become a
licensed health care service plan.
(3) If, at the end of the 180-day notice period in paragraph (2),
the health care service plan has not complied with the laws of Mexico
or California, the director shall issue an order that the health
care service plan cease and desist operations in California.
(d) This section shall become operative on January 1, 2008.
SEC. 116. Section 1596.792 of the Health and Safety Code, as
amended by Section 4 of Chapter 664 of the Statutes of 2004, is
amended to read:
1596.792.
This chapter, Chapter 3.5 (commencing with Section 1596.90), and
Chapter 3.6 (commencing with Section 1597.30) do not apply to any of
the following:
(a) Any health facility, as defined by Section 1250.
(b) Any clinic, as defined by Section 1202.
(c) Any community care facility, as defined by Section 1502.
(d) Any family day care home providing care for the children of
only one family in addition to the operator's own children.
(e) Any cooperative arrangement between parents for the care of
their children when no payment is involved and the arrangement meets
all of the following conditions:
(1) In a cooperative arrangement, parents shall combine their
efforts so that each parent, or set of parents, rotates as the
responsible caregiver with respect to all the children in the
cooperative.
(2) Any person caring for children shall be a parent, legal
guardian, stepparent, grandparent, aunt, uncle, or adult sibling of
at least one of the children in the cooperative.
(3) There can be no payment of money or receipt of in-kind income
in exchange for the provision of care. This does not prohibit in-kind
contributions of snacks, games, toys, blankets for napping, pillows,
and other materials parents deem appropriate for their children. It
is not the intent of this paragraph to prohibit payment for outside
activities, the amount of which may not exceed the actual cost of the
activity.
(4) No more than 12 children are receiving care in the same place
at the same time.
(f) Any arrangement for the receiving and care of children by a
relative.
(g) Any public recreation program. "Public recreation program"
means a program operated by the state, city, county, special
district, school district, community college district, chartered
city, or chartered city and county that meets either of the following
criteria:
(1) The program is operated only during hours other than normal
school hours for kindergarten and grades 1 to 12, inclusive, in the
public school district where the program is located, or operated only
during periods when students in kindergarten and grades 1 to 12,
inclusive, are normally not in session in the public school district
where the program is located, for either of the following periods:
(A) For under 16 hours per week.
(B) For a total of 12 weeks or less during a 12-month period. This
total applies to any 12 weeks within any 12-month period, without
regard to whether the weeks are consecutive.
In determining "normal school hours" or periods when students are
"normally not in session," the State Department of Social Services
shall, when appropriate, consider the normal school hours or periods
when students are normally not in session for students attending a
year-round school.
(2) The program is provided to children who are over the age of
four years and nine months and not yet enrolled in school and the
program is operated during either of the following periods:
(A) For under 16 hours per week.
(B) For a total of 12 weeks or less during a 12-month period. This
total applies to any 12 weeks within any 12-month period, without
regard to whether the weeks are consecutive.
(3) The program is provided to children under the age of four
years and nine months with sessions that run 12 hours per week or
less and are 12 weeks or less in duration. A program subject to this
paragraph may permit children to be enrolled in consecutive sessions
throughout the year. However, the program shall not permit children
to be enrolled in a combination of sessions that total more than 12
hours per week for each child.
(h) Extended day care programs operated by public or private
schools.
(i) Any school parenting program or adult education child care
program that satisfies both of the following:
(1) Is operated by a public school district or operated by an
individual or organization pursuant to a contract with a public
school district.
(2) Is not operated by an organization specified in Section
1596.793.
(j) Any child day care program that operates only one day per week
for no more than four hours on that one day.
(k) Any child day care program that offers temporary child care
services to parents and that satisfies both of the following:
(1) The services are only provided to parents and guardians who
are on the same premises as the site of the child day care program.
(2) The child day care program is not operated on the site of a
ski facility, shopping mall, department store, or any other similar
site identified by the department by regulation.
(l) Any program that provides activities for children of an
instructional nature in a classroom-like setting and satisfies both
of the following:
(1) Is operated only during periods of the year when students in
kindergarten and grades 1 to 12, inclusive, are normally not in
session in the public school district where the program is located
due to regularly scheduled vacations.
(2) Offers any number of sessions during the period specified in
paragraph (1) that when added together do not exceed a total of 30
days when only schoolage children are enrolled in the program or 15
days when children younger than schoolage are enrolled in the
program.
(m) A program facility administered by the Department of
Corrections that (1) houses both women and their children, and (2) is
specifically designated for the purpose of providing substance abuse
treatment and maintaining and strengthening the family unit pursuant
to Chapter 4 (commencing with Section 3410) of Title 2 of Part 3 of
the Penal Code, or Chapter 4.8 (commencing with Section 1174) of
Title 7 of Part 2 of that code.
(n) Any crisis nursery, as defined in subdivision (a) of Section
1516.
(o) This section shall remain in effect only until January 1,
2008, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2008, deletes or extends
that date.
SEC. 117. Section 1596.792 of the Health and Safety Code, as added
by Section 5 of Chapter 664 of the Statutes of 2004, is amended to
read:
1596.792.
This chapter, Chapter 3.5 (commencing with Section 1596.90), and
Chapter 3.6 (commencing with Section 1597.30) do not apply to any of
the following:
(a) Any health facility, as defined by Section 1250.
(b) Any clinic, as defined by Section 1202.
(c) Any community care facility, as defined by Section 1502.
(d) Any family day care home providing care for the children of
only one family in addition to the operator's own children.
(e) Any cooperative arrangement between parents for the care of
their children when no payment is involved and the arrangement meets
all of the following conditions:
(1) In a cooperative arrangement, parents shall combine their
efforts so that each parent, or set of parents, rotates as the
responsible caregiver with respect to all the children in the
cooperative.
(2) Any person caring for children shall be a parent, legal
guardian, stepparent, grandparent, aunt, uncle, or adult sibling of
at least one of the children in the cooperative.
(3) There can be no payment of money or receipt of in-kind income
in exchange for the provision of care. This does not prohibit in-kind
contributions of snacks, games, toys, blankets for napping, pillows,
and other materials parents deem appropriate for their children. It
is not the intent of this paragraph to prohibit payment for outside
activities, the amount of which may not exceed the actual cost of the
activity.
(4) No more than 12 children are receiving care in the same place
at the same time.
(f) Any arrangement for the receiving and care of children by a
relative.
(g) Any public recreation program. "Public recreation program"
means a program operated by the state, city, county, special
district, school district, community college district, chartered
city, or chartered city and county that meets either of the following
criteria:
(1) The program is operated only during hours other than normal
school hours for kindergarten and grades 1 to 12, inclusive, in the
public school district where the program is located, or operated only
during periods when students in kindergarten and grades 1 to 12,
inclusive, are normally not in session in the public school district
where the program is located, for either of the following periods:
(A) For under 16 hours per week.
(B) For a total of 12 weeks or less during a 12-month period. This
total applies to any 12 weeks within any 12-month period, without
regard to whether the weeks are consecutive.
In determining "normal school hours" or periods when students are
"normally not in session," the State Department of Social Services
shall, when appropriate, consider the normal school hours or periods
when students are normally not in session for students attending a
year-round school.
(2) The program is provided to children who are over the age of
four years and nine months and not yet enrolled in school and the
program is operated during either of the following periods:
(A) For under 16 hours per week.
(B) For a total of 12 weeks or less during a 12-month period. This
total applies to any 12 weeks within any 12-month period, without
regard to whether the weeks are consecutive.
(3) The program is provided to children under the age of four
years and nine months with sessions that run 12 hours per week or
less and are 12 weeks or less in duration. A program subject to this
paragraph may permit children to be enrolled in consecutive sessions
throughout the year. However, the program shall not permit children
to be enrolled in a combination of sessions that total more than 12
hours per week for each child.
(h) Extended day care programs operated by public or private
schools.
(i) Any school parenting program or adult education child care
program that satisfies both of the following:
(1) Is operated by a public school district or operated by an
individual or organization pursuant to a contract with a public
school district.
(2) Is not operated by an organization specified in Section
1596.793.
(j) Any child day care program that operates only one day per week
for no more than four hours on that one day.
(k) Any child day care program that offers temporary child care
services to parents and that satisfies both of the following:
(1) The services are only provided to parents and guardians who
are on the same premises as the site of the child day care program.
(2) The child day care program is not operated on the site of a
ski facility, shopping mall, department store, or any other similar
site identified by the department by regulation.
(l) Any program that provides activities for children of an
instructional nature in a classroom-like setting and satisfies both
of the following:
(1) Is operated only during periods of the year when students in
kindergarten and grades 1 to 12, inclusive, are normally not in
session in the public school district where the program is located
due to regularly scheduled vacations.
(2) Offers any number of sessions during the period specified in
paragraph (1) that when added together do not exceed a total of 30
days when only schoolage children are enrolled in the program or 15
days when children younger than schoolage are enrolled in the
program.
(m) A program facility administered by the Department of
Corrections that (1) houses both women and their children, and (2) is
specifically designated for the purpose of providing substance abuse
treatment and maintaining and strengthening the family unit pursuant
to Chapter 4 (commencing with Section 3410) of Title 2 of Part 3 of
the Penal Code, or Chapter 4.8 (commencing with Section 1174) of
Title 7 of Part 2 of that code.
(n) This section shall become operative on January 1, 2008.
SEC. 118. Section 11571.1 of the Health and Safety Code is amended
to read:
11571.1.
(a) To effectuate the purposes of this article, the city
prosecutor or city attorney may file, in the name of the people, an
action for unlawful detainer against any person who is in violation
of the nuisance or illegal purpose provisions of subdivision 4 of
Section 1161 of the Code of Civil Procedure, with respect to a
controlled substance purpose. In filing this action, which shall be
based upon an arrest report or on another action or report by a
regulatory or law enforcement agency, the city prosecutor or city
attorney shall utilize the procedures set forth in Chapter 4
(commencing with Section 1159) of Title 3 of Part 3 of the Code of
Civil Procedure, except that in cases filed under this section, the
following also shall apply:
(1) (A) Prior to filing an action pursuant to this section, the
city prosecutor or city attorney shall give 30 calendar days' written
notice to the owner, requiring the owner to file an action for the
removal of the person who is in violation of the nuisance or illegal
purpose provisions of subdivision 4 of Section 1161 of the Code of
Civil Procedure with respect to a controlled substance purpose.
(B) This notice shall include sufficient documentation
establishing a violation of the nuisance or illegal purpose
provisions of subdivision 4 of Section 1161 of the Code of Civil
Procedure and shall be served upon the owner and the tenant in
accordance with subdivision (e) of this section.
(C) The notice to the tenant shall also include on the bottom of
its front page, in at least 14-point bold type, the following:
"Notice to Tenant: This notice is not a notice of eviction.
However, you should know that an eviction action may soon be filed in
court against you for suspected drug activity, as described above.
You should call
(insert name and telephone number of the city attorney or prosecutor
pursuing the action) or legal aid to stop the eviction action if any
of the following is applicable:
(i) You are not the person named in this notice.
(ii) The person named in the notice does not live with you.
(iii) The person named in the notice has permanently moved.
(iv) You do not know the person named in the notice.
(v) You have any other legal defense or legal reason to stop the
eviction action.
A list of legal assistance providers is attached to this notice.
Some provide free legal help if you are eligible."
(D) The owner shall, within 30 calendar days of the mailing of the
written notice, either provide the city prosecutor or city attorney
with all relevant information pertaining to the unlawful detainer
case, or provide a written explanation setting forth any
safety-related reasons for noncompliance, and an assignment to the
city prosecutor or city attorney of the right to bring an unlawful
detainer action against the tenant.
(E) The assignment shall be on a form provided by the city
prosecutor or city attorney and may contain a provision for costs of
investigation, discovery, and reasonable attorney's fees, in an
amount not to exceed six hundred dollars ($600).
(F) If the city prosecutor or city attorney accepts the assignment
of the right of the owner to bring the unlawful detainer action, the
owner shall retain all other rights and duties, including the
handling of the tenant's personal property, following issuance of the
writ of possession and its delivery to and execution by the
appropriate agency.
(2) Upon the failure of the owner to file an action pursuant to
this section, or to respond to the city prosecutor or city attorney
as provided in paragraph (1), or having filed an action, if the owner
fails to prosecute it diligently and in good faith, the city
prosecutor or city attorney may file and prosecute the action, and
join the owner as a defendant in the action. This action shall have
precedence over any similar proceeding thereafter brought by the
owner, or to one previously brought by the owner and not prosecuted
diligently and in good faith. Service of the summons and complaint
upon the defendant owner shall be in accordance with Sections 415.10,
415.20, 415.30, 415.40, and 415.50 of the Code of Civil Procedure.
(3) If a jury or court finds the defendant tenant guilty of
unlawful detainer in a case filed pursuant to paragraph (2), the city
prosecutor or city attorney may be awarded costs, including the
costs of investigation and discovery and reasonable attorney's fees.
These costs shall be assessed against the defendant owner, to whom
notice was directed pursuant to paragraph (1), and once an abstract
of judgment is recorded, it shall constitute a lien on the subject
real property.
(4) Nothing in this article shall prevent a local governing body
from adopting and enforcing laws, consistent with this article,
relating to drug abatement. Where local laws duplicate or supplement
this article, this article shall be construed as providing
alternative remedies and not preempting the field.
(5) Nothing in this article shall prevent a tenant from receiving
relief against a forfeiture of a lease pursuant to Section 1179 of
the Code of Civil Procedure.
(b) In any proceeding brought under this section, the court may,
upon a showing of good cause, issue a partial eviction ordering the
removal of any person, including, but not limited to, members of the
tenant's household if the court finds that the person has engaged in
the activities described in subdivision (a). Persons removed pursuant
to this section may be permanently barred from returning to or
reentering any portion of the entire premises. The court may further
order as an express condition of the tenancy that the remaining
tenants shall not give permission to or invite any person who has
been removed pursuant to this subdivision to return to or reenter any
portion of the entire premises.
(c) For the purposes of this section, "controlled substance
purpose" means the manufacture, cultivation, importation into the
state, transportation, possession, possession for sale, sale,
furnishing, administering, or giving away, or providing a place to
use or fortification of a place involving, cocaine, phencyclidine,
heroin, methamphetamine, or any other controlled substance, in a
violation of subdivision (a) of Section 11350, Section 11351,
11351.5, 11352, or 11359, subdivision (a) of Section 11360, or
Section 11366, 11366.6, 11377, 11378, 11378.5, 11379, 11379.5,
11379.6, or 11383, if the offense occurs on the subject real property
and is documented by the observations of a peace officer.
(d) Notwithstanding subdivision (b) of Section 68097.2 of the
Government Code, a public entity may waive all or part of the costs
incurred in furnishing the testimony of a peace officer in an
unlawful detainer action brought pursuant to this section.
(e) The notice and documentation described in paragraph (1) of
subdivision (a) shall be given in writing and may be given either by
personal delivery or by deposit in the United States mail in a sealed
envelope, postage prepaid, addressed to the owner at the address
known to the public entity giving the notice, or as shown on the last
equalized assessment roll, if not known. Separate notice of not less
than 30 calendar days and documentation shall be provided to the
tenant in accordance with this subdivision. Service by mail shall be
deemed to be completed at the time of deposit in the United States
mail. Proof of giving the notice may be made by a declaration signed
under penalty of perjury by any employee of the public entity which
shows service in conformity with this section.
(f) This section shall only apply to the following courts:
(1) In the County of Los Angeles, any court having jurisdiction
over unlawful detainer cases involving real property situated in the
City of Los Angeles or in the City of Long Beach.
(2) In the County of San Diego, any court having jurisdiction over
unlawful detainer cases involving real property situated in the City
of San Diego.
(3) In the County of Alameda, any court with jurisdiction over
unlawful detainer cases involving real property situated in the City
of Oakland.
(g) (1) The city attorney and city prosecutor of each
participating jurisdiction shall provide to the Judicial Council the
following information:
(A) The number of notices provided pursuant to paragraph (1) of
subdivision (a).
(B) The number of cases filed by an owner, upon notice.
(C) The number of assignments executed by owners to the city
attorney or city prosecutor.
(D) The number of three-day, 30-day, or 60-day notices issued by
the city attorney or city prosecutor.
(E) The number of cases filed by the city attorney or city
prosecutor.
(F) The number of times that an owner is joined as a defendant
pursuant to this section.
(G) As to each case filed by an owner, the city attorney, or the
city prosecutor, the following information:
(i) The number of judgments ordering an eviction or partial
eviction (specify whether default, stipulated, or following trial).
(ii) The number of cases, listed by separate categories, in which
the case was withdrawn or in which the tenant prevailed.
(iii) The number of other dispositions (specify disposition).
(iv) The number of defendants represented by counsel.
(v) Whether the case was a trial by the court or a trial by a
jury.
(vi) Whether an appeal was taken, and, if so, the result of the
appeal.
(vii) The number of cases in which partial eviction was requested,
and the number of cases in which the court ordered a partial
eviction.
(H) As to each case in which a notice was issued, but no case was
filed, the following information:
(i) The number of instances in which a tenant voluntarily vacated
the unit.
(ii) The number of instances in which a tenant vacated a unit
prior to the providing of the notice.
(iii) The number of cases in which the notice provided pursuant to
subdivision (a) was erroneously sent to the tenant. (List reasons,
if known, for the erroneously sent notice, such as reliance on
information on the suspected controlled substance law violator's name
or address that was incorrect; clerical error; or any other reason)
(iv) The number of other resolutions (specify resolution).
(2) (A) Information compiled pursuant to this section shall be
reported annually to the Judicial Council on or before January 30 of
each year.
(B) The Judicial Council shall thereafter submit a brief report to
the Senate and Assembly Committees on the Judiciary once on or
before April 15, 2007, and once on or before April 15, 2009,
summarizing the information collected pursuant to this section and
evaluating the merits of the pilot programs established by this
section.
(h) This section shall remain in effect only until January 1,
2010, and as of that date is repealed unless a later enacted statute
deletes or extends that date.
SEC. 119. Section 18070 of the Health and Safety Code is amended
to read:
18070.
(a) The Legislature finds and declares all of the following:
(1) The financial hardship endured by someone who is buying or
selling a manufactured home for the purpose of using it for a primary
residence is more profound than the hardship of someone who is
selling or purchasing a manufactured home for investment purposes.
(2) It is, therefore, the intent of the Legislature in enacting
this chapter that any claims for primary residences submitted,
pursuant to this chapter, by a claimant for payment from the fund
shall be given priority over claims submitted for investment
purposes.
(3) The distinctions made in this chapter between claims made for
personal residential purposes and claims made for investment purposes
shall reflect the priorities set forth in this paragraph.
(4) The costs of seeking and obtaining civil judgments and related
collection efforts to support claims for compensation often exceed
the ability of claimants and the amounts received.
(5) The costs and efforts of public entities obtaining criminal or
administrative restitution orders could provide further benefits if
these orders could be used as the basis for compensation claims.
(b) The following definitions shall apply for the purposes of this
chapter:
(1) "Actual and direct loss" includes the following:
(A) The amount of the actual and direct loss, interest at the
statutory rate from the date of loss, plus court costs and reasonable
attorney's fees incurred in pursuit of the judgment, not to exceed
25 percent of the amount of the judgment, if the claim is based on a
judgment obtained by a private attorney or an attorney employed by a
nonprofit corporation, and not to exceed 35 percent of the amount of
the judgment if the claim is based on a judgment obtained by an
attorney employed by a public agency.
(B) The amount of the actual and direct loss, if the claim is not
based on a judgment. However, the claimant may collect actual and
reasonable costs incurred in pursuit of compensation including
attorney's fees not exceeding 15 percent of the amount of the claim
and court costs, if any.
"Actual and direct loss" does not include any punitive damages or
damages awarded for negligent or intentional infliction of emotional
distress.
(2) "Claimant" does not include a person holding a lien on, or a
person possessing a secondary interest in, a manufactured home.
(3) "Conversion" means the unlawful appropriation of the property
of another.
(4) "Judgment" means any of the following:
(A) A final judgment in a court of competent jurisdiction, other
than a court in another state, including, but not limited to, a
criminal restitution order issued pursuant to subdivision (f) of
Section 1202.4 of the Penal Code or Section 3663 of Title 18 of the
United States Code.
(B) An order of the director, including an order for restitution,
based on an accusation filed pursuant to Article 3 (commencing with
Section 18058) of Chapter 7, after an opportunity for a hearing.
(5) "Complaint" means the facts of the underlying transaction upon
which the criminal restitution order or administrative order is
based.
(6) "Judgment debtor" means any defendant who is the subject of
the criminal restitution order or civil judgment, any respondent who
is the subject of an administrative accusation and order, or any
person responsible for any violation upon which payment is made, as
determined by the department.
(c) There is hereby created in the State Treasury the Manufactured
Home Recovery Fund. The money in the fund shall be used only for the
purposes of this chapter, including payment of the department's
administrative costs incurred pursuant to this chapter. The
department's costs may include any investigative costs incurred under
this chapter, costs incurred to render a decision pursuant to
Section 18070.3, and costs incurred in defending a decision on
appeal.
(d) The moneys in the fund may be invested pursuant to Chapter 3
(commencing with Section 16430) of Part 2 of Division 4 of Title 2 of
the Government Code. All income derived from investments of the fund
shall be returned to the fund by the Treasurer as the income is
earned.
(e) Notwithstanding Section 13340 of the Government Code, the
moneys in the fund are hereby continuously appropriated to make the
payments and distributions required by this chapter.
SEC. 120. Section 25395.110 of the Health and Safety Code is
amended to read:
25395.110.
(a) A person who, before January 1, 2010, qualifies for immunity
pursuant to Chapter 6.82 (commencing with Section 25395.60), as that
chapter read on December 31, 2009, shall continue to have that
immunity on and after January 1, 2010, if the person continues to be
in compliance with the requirements of former Chapter 6.82
(commencing with Section 25395.60), including, but not limited to,
compliance with all response plans approved pursuant to Article 6
(commencing with Section 25395.90) of Chapter 6.82, and compliance
with all other applicable laws.
(b) This article shall become operative January 1, 2010.
SEC. 121. Section 25395.65 of the Health and Safety Code is
amended to read:
25395.65.
"All appropriate inquiries" has the following meanings:
(a) Except as provided in subdivision (c), until the date when the
standards and practices established by the Administrator of the
United States Environmental Protection Agency pursuant to Section 101
(35)(B)(ii) of the federal act (42 U.S.C. Sec. 9601(35)(B)(ii)) are
adopted and take effect, "all appropriate inquiries" means:
(1) For property acquired on or before December 1, 2000,
compliance with American Society for Testing and Materials Standard
El527-97 entitled "Standard Practice for Environmental Site
Assessment": Phase 1 Environmental Site Assessment Process.
(2) For property acquired after December 1, 2000, compliance with
American Society for Testing and Materials Standard El527-00.
(b) Except as provided in subdivision (c), on and after the date
when the standards and practices established by the Administrator of
the United States Environmental Protection Agency pursuant to Section
101(35)(B)(ii) of the federal act (42 U.S.C. Sec. 9601(35)(B)(ii))
are adopted and take effect, "all appropriate inquiries" means
compliance with those standards, except that any portion of the
inquiry that includes the practice of engineering or the practice of
geology shall be carried out in conformance with applicable state
statutes.
(c) If the property is used solely for residential use and has
four or fewer units at the time of acquisition by a nongovernmental
or noncommercial entity, "all appropriate inquiries" means that a
site inspection and title search does not reveal a basis for further
investigation.
SEC. 122. Section 25395.67 of the Health and Safety Code is
amended to read:
25395.67.
"Appropriate care" means either of the following:
(a) The performance of a response action, with respect to
hazardous materials found at a site, for which the agency makes the
determination specified in paragraph (1) of subdivision (c) of
Section 25395.96 and that meets all of the following conditions:
(1) The response action is determined by an agency to be necessary
to prevent an unreasonable risk to human health and safety or the
environment, as defined in Section 25395.90.
(2) The response action is performed in accordance with a response
plan approved by the agency pursuant to Article 6 (commencing with
Section 25395.90).
(3) The approved response plan includes a provision for oversight
and approval of the completed response action by the agency pursuant
to Article 6 (commencing with Section 25395.90).
(b) A determination that no further action is required pursuant to
Section 25395.95.
SEC. 123. Section 25395.93 of the Health and Safety Code is
amended to read:
25395.93.
(a) A person may withdraw from an agreement entered into pursuant
to this article by providing a 30-day written notice to the agency
and doing both of the following:
(1) Reimbursing the agency for all costs incurred by the agency
pursuant to the agreement.
(2) Demonstrating to the satisfaction of the agency that
conditions at the site to which the agreement applies do not pose an
endangerment to public health and safety or the environment. If the
agency determines that conditions at the site pose an endangerment to
public health, safety, or the environment, this article does not
prevent the agency from exercising its authority to take appropriate
response actions or to cause the person or persons responsible for
the endangerment to take appropriate response actions.
(b) A person who enters into an agreement with an agency pursuant
to this article shall reimburse the agency for all agency costs,
including, but not limited to, costs incurred while reviewing a site
assessment plan or a response plan or overseeing the implementation
of a site assessment or response plan by the person pursuant to this
article, except that the department's costs shall be reimbursed
pursuant to Chapter 6.66 (commencing with Section 25269) and shall be
recoverable pursuant to Section 25360.
(c) The entry into an agreement pursuant to this article shall not
constitute an admission of fact or liability or conclusion of law
for any purpose or proceeding and a person who enters into an
agreement under this article shall not be deemed liable under any
other provision of law solely by reason of entering into that
agreement.
(d) If the conditions described in paragraph (1) of subdivision
(c) of Section 25395.81 or in subdivision (d) of Section 25395.81
occur, an agency may withdraw from an agreement entered into pursuant
to this chapter by providing a 30-day written notice to the other
party.
SEC. 124. Section 25395.95 of the Health and Safety Code is
amended to read:
25395.95.
(a) After implementation of the site assessment plan, the person
shall submit to the agency a report of the findings made pursuant to
the plan. Based upon a review of this information, the agency shall
determine whether a response action is necessary to address any
unreasonable risk from hazardous materials at the site.
(b) If the agency determines that there is no unreasonable risk at
the site and that there are no hazardous materials at the site at
levels that are not suitable for unrestricted use of the site, the
agency shall make a finding that no further action is necessary at
the site.
(c) If the agency determines that there are hazardous materials at
the site at levels that are not suitable for unrestricted use, but
that are suitable for the reasonably anticipated foreseeable use of
the site based on current and projected land use and zoning
designations, the agency shall find that no further action is
necessary at the site except that a land use control that imposes
appropriate restrictions pursuant to Section 25395.99 shall be
executed and recorded and the public comment and participation
requirements of Section 25395.96 shall be met before the execution
and recording of any land use control. On or before 15 days after the
date when the land use control is recorded pursuant to Section
25395.99, the agency shall state in writing that this act constitutes
"appropriate care" for the purposes of Section 25395.67.
SEC. 125. Section 25395.96 of the Health and Safety Code is
amended to read:
25395.96.
(a) If, upon review of the site assessment prepared pursuant to
this article, the agency determines that a response action is
necessary to prevent or eliminate an unreasonable risk, the bona fide
purchaser, innocent landowner, or contiguous property owner shall
submit a response plan to the agency to conduct a response action at
the site, in conformance with the agreement entered into pursuant to
Section 25395.92. The response plan shall include all of the
following:
(1) (A) An opportunity for the public, other agencies, and the
host jurisdiction to participate in decisions regarding the response
action, taking into consideration the nature of the community
interest.
(B) If a regional board is the agency, the regional board shall
provide access to the proposed response plan and site assessment at
the regional board for public review, conduct a public hearing with
30 days' prior notice, provide notice on the agenda of the public
hearing, and take action on the response plan in a regularly
scheduled regional board meeting.
(C) If the department is the agency, the methods for public
participation proposed in the response plan shall include reasonable
public notice in English and other languages commonly spoken in the
area, access to the proposed response plan and site assessment at the
agency and local repositories, and reasonable opportunity to
comment. The department shall hold a public meeting in the area to
receive comments if a public meeting is requested. The department
shall consider any comments received prior to acting on the response
plan. Methods for public participation may also include, but are not
limited to, the use of factsheets, public notices, direct
notification of interested parties, public meetings, and an
opportunity to comment on the proposed response plan prior to
approval.
(D) To the extent possible, the agency shall coordinate its public
participation activities with those undertaken by the host
jurisdiction and other agencies associated with the development of
the property, to avoid duplication to the extent feasible.
(E) It is the intent of the Legislature that the public
participation process established pursuant to this subdivision
ensures full and robust participation of a community affected by this
chapter.
(2) Identification of the release or threatened release that is
the subject of the response plan and documentation that the plan is
based on an adequate characterization of the site.
(3) An identification of the response plan objectives and the
proposed remedy, and an identification of the reasonably anticipated
future land uses of the site and of the current and projected land
use and zoning designations. This identification shall include
confirmation by the host jurisdiction that the anticipated future
land uses and current and projected land uses and zoning designations
are accurate.
(4) A description of activities that will be implemented to
control any endangerment that may occur during the response action at
the site.
(5) A description of any land use control that is part of the
response action.
(6) A description of wastes other than hazardous materials at the
site and how they will be managed in conjunction with the response
action.
(7) Provisions for the removal of containment or storage vessels
and other sources of contamination, including soils and free product,
that cause an unreasonable risk.
(8) Provisions for the agency to require further response actions
based on the discovery of hazardous materials that pose an
unreasonable risk to human health and safety or the environment that
are discovered during the course of the response action or subsequent
development of the site.
(9) Any other information that the agency determines is necessary.
(b) The agency shall evaluate the adequacy of the plan submitted
pursuant to subdivision (a) and shall approve the plan if the agency
makes all of the following findings:
(1) The plan contains the information required by subdivision (a).
(2) When implemented, the plan will place the site in a condition
that allows it to be used for its reasonably anticipated future land
use without unreasonable risk to human health and safety and the
environment.
(3) The plan addresses any public comments.
(4) If applicable, the plan provides for long-term operation and
maintenance, including land use and engineering controls, that are
part of the remedy contained in the response plan.
(c) (1) On or before 60 days after the date an agency receives a
response plan, the agency shall make a written determination that
proper completion of the response plan constitutes "appropriate care"
for purposes of subdivision (a) of Section 25395.67.
(2) Upon approval of the response plan by the agency, the agency
shall notify all appropriate persons, including the host
jurisdiction.
(d) If the use of the property changes, after a response plan is
approved, to a use that requires a higher level of protection, the
agency may require the preparation and implementation of a new
response plan pursuant to this article.
(e) The owner of a site shall not make any change in use of a site
inconsistent with any land use control recorded for the site, unless
the change is approved by the agency in accordance with subdivision
(f) of Section 25395.99.
SEC. 126. Section 25404 of the Health and Safety Code, as amended
by Section 9 of Chapter 880 of the Statutes of 2004, is amended to
read:
25404.
(a) For purposes of this chapter, the following terms shall have
the following meanings:
(1) (A) "Certified Unified Program Agency" or "CUPA" means the
agency certified by the secretary to implement the unified program
specified in this chapter within a jurisdiction.
(B) "Participating Agency" or "PA" means a state or local agency
that has a written agreement with the CUPA pursuant to subdivision
(d) of Section 25404.3, and is approved by the secretary, to
implement or enforce one or more of the unified program elements
specified in subdivision
(c), in accordance with Sections 25404.1 and 25404.2.
(C) "Unified Program Agency" or "UPA" means the CUPA, or its
participating agencies to the extent each PA has been designated by
the CUPA, pursuant to a written agreement, to implement or enforce a
particular unified program element specified in subdivision (c). The
UPAs have the responsibility and authority to implement and enforce
the requirements listed in subdivision (c), and the regulations
adopted to implement the requirements listed in subdivision (c), to
the extent provided by Chapter 6.5 (commencing with Section 25100),
Chapter 6.67 (commencing with Section 25270), Chapter 6.7 (commencing
with Section 25280), Chapter 6.95 (commencing with Section 25500),
and Sections 25404.1 and 25404.2. After a CUPA has been certified by
the secretary, the unified program agencies and the state agencies
carrying out responsibilities under this chapter shall be the only
agencies authorized to enforce the requirements listed in subdivision
(c) within the jurisdiction of the CUPA.
(2) "Department" means the Department of Toxic Substances Control.
(3) "Minor violation" means the failure of a person to comply with
any requirement or condition of any applicable law, regulation,
permit, information request, order, variance, or other requirement,
whether procedural or substantive, of the unified program that the
UPA is authorized to implement or enforce pursuant to this chapter,
and that does not otherwise include any of the following:
(A) A violation that results in injury to persons or property, or
that presents a significant threat to human health or the
environment.
(B) A knowing, willful, or intentional violation.
(C) A violation that is a chronic violation, or that is committed
by a recalcitrant violator. In determining whether a violation is
chronic or a violator is recalcitrant, the UPA shall consider whether
there is evidence indicating that the violator has engaged in a
pattern of neglect or disregard with respect to applicable regulatory
requirements.
(D) A violation that results in an emergency response from a
public safety agency.
(E) A violation that enables the violator to benefit economically
from the noncompliance, either by reduced costs or competitive
advantage.
(F) A class I violation as provided in Section 25117.6.
(G) A class II violation committed by a chronic or a recalcitrant
violator, as provided in Section 25117.6.
(H) A violation that hinders the ability of the UPA to determine
compliance with any other applicable local, state, or federal rule,
regulation, information request, order, variance, permit, or other
requirement.
(4) "Secretary" means the Secretary for Environmental Protection.
(5) "Unified program facility" means all contiguous land and
structures, other appurtenances, and improvements on the land that
are subject to the requirements listed in subdivision (c).
(6) "Unified program facility permit" means a permit issued
pursuant to this chapter. For the purposes of this chapter, a unified
program facility permit encompasses the permitting requirements of
Section 25284, and any permit or authorization requirements under any
local ordinance or regulation relating to the generation or handling
of hazardous waste or hazardous materials, but does not encompass
the permitting requirements of a local ordinance that incorporates
provisions of the Uniform Fire Code or the Uniform Building Code.
(b) The secretary shall adopt implementing regulations and
implement a unified hazardous waste and hazardous materials
management regulatory program, which shall be known as the unified
program, after holding an appropriate number of public hearings
throughout the state. The unified program shall be developed in close
consultation with the director, the Director of the Office of
Emergency Services, the State Fire Marshal, the executive officers
and chairpersons of the State Water Resources Control Board and the
California regional water quality control boards, the local health
officers, local fire services, and other appropriate officers of
interested local agencies, and affected businesses and interested
members of the public, including environmental organizations.
(c) The unified program shall consolidate the administration of
the following requirements, and shall, to the maximum extent feasible
within statutory constraints, ensure the coordination and
consistency of any regulations adopted pursuant to those
requirements:
(1) (A) Except as provided in subparagraphs (B) and (C), the
requirements of Chapter 6.5 (commencing with Section 25100), and the
regulations adopted by the department pursuant thereto, are
applicable to all of the following:
(i) Hazardous waste generators, persons operating pursuant to a
permit-by-rule, conditional authorization, or conditional exemption,
pursuant to Chapter 6.5 (commencing with Section 25100) or the
regulations adopted by the department.
(ii) Persons managing perchlorate materials.
(iii) Persons subject to Article 10.1 (commencing with Section
25211) of Chapter 6.5.
(B) The unified program shall not include the requirements of
paragraph (3) of subdivision (c) of Section 25200.3, the requirements
of Sections 25200.10 and 25200.14, and the authority to issue an
order under Sections 25187 and 25187.1, with regard to those portions
of a unified program facility that are subject to one of the
following:
(i) A corrective action order issued by the department pursuant to
Section 25187.
(ii) An order issued by the department pursuant to Chapter 6.8
(commencing with Section 25300) or Chapter 6.85 (commencing with
Section 25396).
(iii) A remedial action plan approved pursuant to Chapter 6.8
(commencing with Section 25300) or Chapter 6.85 (commencing with
Section 25396).
(iv) A cleanup and abatement order issued by a California regional
water quality control board pursuant to Section 13304 of the Water
Code, to the extent that the cleanup and abatement order addresses
the requirements of the applicable section or sections listed in this
subparagraph.
(v) Corrective action required under subsection (u) of Section
6924 of Title 42 of the United States Code or subsection (h) of
Section 6928 of Title 42 of the United States Code.
(vi) An environmental assessment pursuant to Section 25200.14 or a
corrective action pursuant to Section 25200.10 or paragraph (3) of
subdivision (c) of Section 25200.3, that is being overseen by the
department.
(C) The unified program shall not include the requirements of
Chapter 6.5 (commencing with Section 25100), and the regulations
adopted by the department pursuant thereto, applicable to persons
operating transportable treatment units, except that any required
notice regarding transportable treatment units shall also be provided
to the CUPAs.
(2) The requirement of subdivision (c) of Section 25270.5 for
owners and operators of aboveground storage tanks to prepare a spill
prevention control and countermeasure plan.
(3) (A) Except as provided in subparagraphs (B) and (C), the
requirements of Chapter 6.7 (commencing with Section 25280)
concerning underground storage tanks and the requirements of any
underground storage tank ordinance adopted by a city or county.
(B) The unified program may not include the responsibilities
assigned to the State Water Resources Control Board pursuant to
Section 25297.1.
(C) The unified program may not include the corrective action
requirements of Sections 25296.10 to 25296.40, inclusive.
(4) The requirements of Article 1 (commencing with Section 25500)
of Chapter 6.95 concerning hazardous material release response plans
and inventories.
(5) The requirements of Article 2 (commencing with Section 25531)
of Chapter 6.95, concerning the accidental release prevention
program.
(6) The requirements of subdivisions (b) and (c) of Section 80.103
of the Uniform Fire Code, as adopted by the State Fire Marshal
pursuant to Section 13143.9, concerning hazardous material management
plans and inventories.
(d) To the maximum extent feasible within statutory constraints,
the secretary shall consolidate, coordinate, and make consistent
these requirements of the unified program with other requirements
imposed by other federal, state, regional, or local agencies upon
facilities regulated by the unified program.
(e) (1) The secretary shall establish standards applicable to
CUPAs, participating agencies, state agencies, and businesses
specifying the data to be collected and submitted by unified program
agencies in administering the programs listed in subdivision (c).
Those standards shall incorporate any standard developed under
Section 25503.3.
(2) The secretary shall establish an electronic geographic
information management system capable of receiving all data collected
by the unified program agencies pursuant to this subdivision and
Section 25504.1. The secretary shall make all nonconfidential data
available on the Internet.
(3) (A) As funding becomes available, the secretary shall
establish, consistent with paragraph (2), and thereafter maintain, a
statewide database.
(B) The secretary, or one or more of the boards, departments, or
offices within the California Environmental Protection Agency, shall
seek available federal funding for purposes of implementing this
subdivision.
(4) Once the statewide database is established, the secretary
shall work with the CUPAs to develop a phased-in schedule for the
electronic collection and submittal of information to be included in
the statewide database, giving first priority to information relating
to those chemicals determined by the secretary to be of greatest
concern. The secretary, in making this determination, shall consult
with the CUPAs, the Office of Emergency Services, the State Fire
Marshal, and the boards, departments, and offices within the
California Environmental Protection Agency. The information initially
included in the statewide database shall include, but is not limited
to, the hazardous materials inventory information required to be
submitted pursuant to Section 25504.1 for perchlorate materials.
(f) This section shall remain in effect only until January 1,
2006, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2006, deletes or extends
that date.
SEC. 127. Section 25404 of the Health and Safety Code, as amended
by Section 10 of Chapter 880 of the Statutes of 2004, is amended to
read:
25404.
(a) For purposes of this chapter, the following terms shall have
the following meanings:
(1) (A) "Certified Unified Program Agency" or "CUPA" means the
agency certified by the secretary to implement the unified program
specified in this chapter within a jurisdiction.
(B) "Participating Agency" or "PA" means a state or local agency
that has a written agreement with the CUPA pursuant to subdivision
(d) of Section 25404.3, and is approved by the secretary, to
implement or enforce one or more of the unified program elements
specified in subdivision (c), in accordance with Sections 25404.1 and
25404.2.
(C) "Unified Program Agency" or "UPA" means the CUPA, or its
participating agencies to the extent each PA has been designated by
the CUPA, pursuant to a written agreement, to implement or enforce a
particular unified program element specified in subdivision (c). The
UPAs have the responsibility and authority to implement and enforce
the requirements listed in subdivision (c), and the regulations
adopted to implement the requirements listed in subdivision (c), to
the extent provided by Chapter 6.5 (commencing with Section 25100),
Chapter 6.67 (commencing with Section 25270), Chapter 6.7 (commencing
with Section 25280), Chapter 6.95 (commencing with Section 25500),
and Sections 25404.1 and 25404.2. After a CUPA has been certified by
the secretary, the unified program agencies and the state agencies
carrying out responsibilities under this chapter shall be the only
agencies authorized to enforce the requirements listed in subdivision
(c) within the jurisdiction of the CUPA.
(2) "Department" means the Department of Toxic Substances Control.
(3) "Secretary" means the Secretary for Environmental Protection.
(4) "Unified program facility" means all contiguous land and
structures, other appurtenances, and improvements on the land that
are subject to the requirements listed in subdivision (c).
(5) "Unified program facility permit" means a permit issued
pursuant to this chapter. For the purposes of this chapter, a unified
program facility permit encompasses the permitting requirements of
Section 25284, and any permit or authorization requirements under any
local ordinance or regulation relating to the generation or handling
of hazardous waste or hazardous materials, but does not encompass
the permitting requirements of a local ordinance that incorporates
provisions of the Uniform Fire Code or the Uniform Building Code.
(b) The secretary shall adopt implementing regulations and
implement a unified hazardous waste and hazardous materials
management regulatory program, which shall be known as the unified
program, after holding an appropriate number of public hearings
throughout the state. The unified program shall be developed in close
consultation with the director, the Director of the Office of
Emergency Services, the State Fire Marshal, the executive officers
and chairpersons of the State Water Resources Control Board and the
California regional water quality control boards, the local health
officers, local fire services, and other appropriate officers of
interested local agencies, and affected businesses and interested
members of the public, including environmental organizations.
(c) The unified program shall consolidate the administration of
the following requirements, and shall, to the maximum extent feasible
within statutory constraints, ensure the coordination and
consistency of any regulations adopted pursuant to those
requirements:
(1) (A) Except as provided in subparagraphs (B) and (C), the
requirements of Chapter 6.5 (commencing with Section 25100), and the
regulations adopted by the department pursuant thereto, are
applicable to all of the following:
(i) Hazardous waste generators, persons operating pursuant to a
permit-by-rule, conditional authorization, or conditional exemption,
pursuant to Chapter 6.5 (commencing with Section 25100) or the
regulations adopted by the department.
(ii) Persons managing perchlorate materials.
(iii) Persons subject to Article 10.1 (commencing with Section
25211) of Chapter 6.5.
(B) The unified program shall not include the requirements of
paragraph (3) of subdivision (c) of Section 25200.3, the requirements
of Sections 25200.10 and 25200.14, and the authority to issue an
order under Sections 25187 and 25187.1, with regard to those portions
of a unified program facility that are subject to one of the
following:
(i) A corrective action order issued by the department pursuant to
Section 25187.
(ii) An order issued by the department pursuant to Chapter 6.8
(commencing with Section 25300) or Chapter 6.85 (commencing with
Section 25396).
(iii) A remedial action plan approved pursuant to Chapter 6.8
(commencing with Section 25300) or Chapter 6.85 (commencing with
Section 25396).
(iv) A cleanup and abatement order issued by a California regional
water quality control board pursuant to Section 13304 of the Water
Code, to the extent that the cleanup and abatement order addresses
the requirements of the applicable section or sections listed in this
subparagraph.
(v) Corrective action required under subsection (u) of Section
6924 of Title 42 of the United States Code or subsection (h) of
Section 6928 of Title 42 of the United States Code.
(vi) An environmental assessment pursuant to Section 25200.14 or a
corrective action pursuant to Section 25200.10 or paragraph (3) of
subdivision (c) of Section 25200.3, that is being overseen by the
department.
(C) The unified program shall not include the requirements of
Chapter 6.5 (commencing with Section 25100), and the regulations
adopted by the department pursuant thereto, applicable to persons
operating transportable treatment units, except that any required
notice regarding transportable treatment units shall also be provided
to the CUPAs.
(2) The requirement of subdivision (c) of Section 25270.5 for
owners and operators of aboveground storage tanks to prepare a spill
prevention control and countermeasure plan.
(3) (A) Except as provided in subparagraphs (B) and (C), the
requirements of Chapter 6.7 (commencing with Section 25280)
concerning underground storage tanks and the requirements of any
underground storage tank ordinance adopted by a city or county.
(B) The unified program may not include the responsibilities
assigned to the State Water Resources Control Board pursuant to
Section 25297.1.
(C) The unified program may not include the corrective action
requirements of Sections 25296.10 to 25296.40, inclusive.
(4) The requirements of Article 1 (commencing with Section 25500)
of Chapter 6.95 concerning hazardous material release response plans
and inventories.
(5) The requirements of Article 2 (commencing with Section 25531)
of Chapter 6.95, concerning the accidental release prevention
program.
(6) The requirements of subdivisions (b) and (c) of Section 80.103
of the Uniform Fire Code, as adopted by the State Fire Marshal
pursuant to Section 13143.9, concerning hazardous material management
plans and inventories.
(d) To the maximum extent feasible within statutory constraints,
the secretary shall consolidate, coordinate, and make consistent
these requirements of the unified program with other requirements
imposed by other federal, state, regional, or local agencies upon
facilities regulated by the unified program.
(e) (1) The secretary shall establish standards applicable to
CUPAs, participating agencies, state agencies, and businesses
specifying the data to be collected and submitted by unified program
agencies in administering the programs listed in subdivision (c).
Those standards shall incorporate any standard developed under
Section 25503.3.
(2) The secretary shall establish an electronic geographic
information management system capable of receiving all data collected
by the unified program agencies pursuant to this subdivision and
Section 25504.1. The secretary shall make all nonconfidential data
available on the Internet.
(3) (A) As funding becomes available, the secretary shall
establish, consistent with paragraph (2), and thereafter maintain, a
statewide database.
(B) The secretary, or one or more of the boards, departments, or
offices within the California Environmental Protection Agency, shall
seek available federal funding for purposes of implementing this
subdivision.
(4) Once the statewide database is established, the secretary
shall work with the CUPAs to develop a phased-in schedule for the
electronic collection and submittal of information to be included in
the statewide database, giving first priority to information relating
to those chemicals determined by the secretary to be of greatest
concern. The secretary, in making this determination, shall consult
with the CUPAs, the Office of Emergency Services, the State Fire
Marshal, and the boards, departments, and offices within the
California Environmental Protection Agency. The information initially
included in the statewide database shall include, but is not limited
to, the hazardous materials inventory information required to be
submitted pursuant to Section 25504.1 for perchlorate materials.
(f) This section shall become operative January 1, 2006.
SEC. 128. Section 25404.3 of the Health and Safety Code is amended
to read:
25404.3.
(a) The secretary shall, within a reasonable time after submission
of a complete application for certification pursuant to Section
25404.2, and regulations adopted pursuant to that section, but not to
exceed 180 days, review the application, and, after holding a public
hearing, determine if the application should be approved. Before
disapproving an application for certification, the secretary shall
submit to the applicant agency a notification of the secretary's
intent to disapprove the application, in which the secretary shall
specify the reasons why the applicant agency does not have the
capability or the resources to fully implement and enforce the
unified program in a manner that is consistent with the regulations
implementing the unified program adopted by the secretary pursuant to
this chapter. The secretary shall provide the applicant agency with
a reasonable time to respond to the reasons specified in the
notification and to correct deficiencies in its application. The
applicant agency may request a second public hearing, at which the
secretary shall hear the applicant agency's response to the reasons
specified in the notification.
(b) In determining whether an applicant agency should be
certified, or designated as certified, the secretary, after receiving
comments from the director, the Director of the Office of Emergency
Services, the State Fire Marshal, and the Executive Officers and
Chairpersons of the State Water Resources Control Board and the
California regional water quality control boards, shall consider at
least all of the following factors:
(1) Adequacy of the technical expertise possessed by each unified
program agency that will be implementing each element of the unified
program, including, but not limited to, whether the agency
responsible for implementing and enforcing the requirements of
Chapter 6.5 (commencing with Section 25100) satisfies the
requirements of Section 15260 of Title 27 of the California Code of
Regulations.
(2) Adequacy of staff resources.
(3) Adequacy of budget resources and funding mechanisms.
(4) Training requirements.
(5) Past performance in implementing and enforcing requirements
related to the handling of hazardous materials and hazardous waste.
(6) Recordkeeping and cost accounting systems.
(7) Compliance with the criteria in Section 15170 of Title 27 of
the California Code of Regulations.
(c) (1) In making the determination of whether or not to certify a
particular applicant agency as a certified unified program agency,
the secretary shall consider the applications of every other
applicant agency applying to be a certified unified program agency
within the same county, in order to determine the impact of each
certification decision on the county. If the secretary identifies
that there may be adverse impacts on the county if any particular
agency in a county is certified, the secretary shall work
cooperatively with each affected agency to address the secretary's
concerns.
(2) The secretary shall not certify an agency to be a certified
unified program agency unless the secretary finds both of the
following:
(A) The unified program will be implemented in a coordinated and
consistent manner throughout the entire county in which the applicant
agency is located.
(B) The administration of the unified program throughout the
entire county in which the applicant agency is located will be less
fragmented between jurisdictions, as compared to before January 1,
1994, with regard to the administration of the provisions specified
in subdivision (c) of Section 25404.
(d) (1) The secretary shall not certify an applicant agency that
proposes to allow participating agencies to implement certain
elements of the unified program unless the secretary makes all of the
following findings:
(A) The applicant agency has adequate authority, and has in place
adequate systems, protocols, and agreements, to ensure that the
actions of the other agencies proposed to implement certain elements
of the unified program are fully coordinated and consistent with each
other and with those of the applicant agency, and to ensure full
compliance with the regulations implementing the unified program
adopted by the secretary pursuant to this chapter.
(B) An agreement between the applicant and other agencies proposed
to implement any elements of the unified program contains procedures
for removing any agencies proposed and engaged to implement any
element of the unified program. The procedures in the agreement shall
include, at a minimum, provisions for providing notice, stating
causes, taking public comment, making appeals, and resolving
disputes.
(C) The other agencies proposed to implement certain elements of
the unified program have the capability and resources to implement
those elements, taking into account the factors designated in
subdivision (b).
(D) All other agencies proposed to implement certain elements of
the unified program shall maintain an agreement with the applicant
agency that ensures that the requirements of Section 25404.2 will be
fully implemented.
(E) If the applicant agency proposes that any agency other than
itself will be responsible for implementing aspects of the single fee
system imposed pursuant to Section 25404.5, the applicant agency
maintains an agreement with that agency that ensures that the fee
system is implemented in a fully consistent and coordinated manner,
and that ensures that each participating agency receives the amount
that it determines to constitute its necessary and reasonable costs
of implementing the element or elements of the unified program that
it is responsible for implementing.
(2) After the secretary has certified an applicant agency pursuant
to this subdivision, that agency shall obtain the approval of the
secretary before removing and replacing a participating agency that
is implementing an element of the unified program.
(3) Any state agency, including, but not limited to, the State
Department of Health Services, acting as a participating agency, may
contract with a unified program agency to implement or enforce the
unified program.
(e) Until a city's or county's application for certification to
implement the unified program is acted upon by the secretary, the
roles, responsibilities, and authority for implementing the programs
identified in subdivision (c) of Section 25404 that existed in that
city or county pursuant to statutory authorization as of December 31,
1993, shall remain in effect.
(f) (1) Except as provided in subparagraph (C) of paragraph (2)
or in Section 25404.8, if no local agency has been certified by
January 1, 1997, to implement the unified program within a city, the
secretary shall designate either the county in which the city is
located or another agency pursuant to subparagraph (A) of paragraph
(2) as the unified program
agency.
(2) (A) Except as provided in subparagraph (C), if no local
agency has been certified by January 1, 2001, to implement the
unified program within the unincorporated or an incorporated area of
a county, the secretary shall determine how the unified program shall
be implemented in the unincorporated area of the county, and in any
city in which there is no agency certified to implement the unified
program. In such an instance, the secretary shall work in
consultation with the county and cities to determine which state or
local agency or combination of state and local agencies should
implement the unified program, and shall determine which state or
local agency shall be designated as the certified unified program
agency.
(B) The secretary shall determine the method by which the unified
program shall be implemented throughout the county and may select any
combination of the following implementation methods:
(i) The certification of a state or local agency as a certified
unified program agency.
(ii) The certification of an agency from another county as the
certified unified program agency.
(iii) The certification of a joint powers agency as the certified
unified program agency.
(C) Notwithstanding paragraph (1) and subparagraphs (A) and (B),
if the Cities of Sunnyvale, Anaheim, and Santa Ana prevail in
litigation filed in 1997 against the secretary, and, to the extent
the secretary determines that these three cities meet the
requirements for certification, the secretary may certify these
cities as certified unified program agencies.
(g) (1) If a certified unified program agency wishes to withdraw
from its obligations to implement the unified program and is a city
or a joint powers agency implementing the unified program within a
city, the agency may withdraw after providing 180 days' notice to the
secretary and to the county within which the city is located, or to
the joint powers agency with which the county has an agreement to
implement the unified program.
(2) Whenever a certified unified program agency withdraws from its
obligations to implement the unified program, or the secretary
withdraws an agency's certification pursuant to Section 25404.4, the
successor certified unified program agency shall be determined in
accordance with subdivision (f).
SEC. 129. Section 44297 of the Health and Safety Code is amended
to read:
44297.
(a) The state board, acting within its existing authority, shall,
at its first opportunity following January 1, 2005, revise the grant
criteria and guidelines adopted pursuant to Section 44287 to
incorporate projects described in subdivision (c).
(b) The guidelines may define eligible costs to include monitoring
and verifying compliance with this article.
(c) Notwithstanding any other provision of this chapter, a project
that meets either of the following criteria constitutes a heavy-duty
fleet modernization project and thus is eligible for funding under
the program, if it complies with the guidelines established by the
state board pursuant to subdivision (a):
(1) Replaces an old engine or vehicle with a newer engine or
vehicle certified to more stringent emissions standards than the
engine or vehicle being replaced, pursuant to paragraph (2) of
subdivision (a) of Section 44281.
(2) Provides the equivalent emission reductions as would be gained
by a project that combines both of the following:
(A) The purchase of a new very low or zero-emission covered
vehicle pursuant to paragraph (1) of subdivision (a) of Section
44281.
(B) The replacement of an old engine or vehicle with a newer
engine or vehicle certified to more stringent standards than the
engine or vehicle being replaced, pursuant to paragraph (2) of
subdivision (a) of Section 44281.
(d) In establishing guidelines pursuant to subdivision (a), the
state board shall consider any existing heavy-duty fleet
modernization program carried out by a district. The state board
shall design a program that, to the extent feasible, includes fleet
owners, independent truck owners, heavy-duty vehicle dealers,
districts, and other participants it determines appropriate from
existing local programs.
(e) The grants provided pursuant to this article shall provide
moneys to offset the incremental cost of projects that reduce
emissions of oxides of nitrogen (NOx) and particulate matter (PM).
(f) The state board shall determine an appropriate weighted
cost-effectiveness standard for projects intended to reduce
particulate matter.
SEC. 130. Section 100425 of the Health and Safety Code is amended
to read:
100425.
(a) The fees or charges for the issuance or renewal of any permit,
license, registration, or document pursuant to Sections 1639.5,
1676, 1677, 2202, 2805, 11887, 100860, 106700, 106890, 106925,
107080, 107090, 107095, 107160, 110210, 110470, 111130, 111140,
111630, 112405, 112510, 112750, 112755, 113060, 113065, 113845,
114056, 114065, paragraph (2) of subdivision (c) of Section 114090,
Section 114140, subdivision (b) of Section 114290, Sections 114367,
115035, 115065, 115080, 116205, 117923, 117995, 118045, 118210, and
118245 shall be adjusted annually by the percentage change printed in
the Budget Act for those items appropriating funds to the state
department. After the first annual adjustment of fees or charges
pursuant to this section, the fees or charges subject to subsequent
adjustment shall be the fees or charges for the prior calendar year.
The percentage change shall be determined by the Department of
Finance, and shall include at least the total percentage change in
salaries and operating expenses of the state department. However, the
total increase in amounts collected under this section shall not
exceed the total increased cost of the program or service provided.
(b) The state department shall publish annually a list of the
actual numerical fee charges for each permit, license, certification,
or registration governed by this section.
(c) This adjustment of fees and publication of the fee list shall
not be subject to the requirements of Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code.
SEC. 131. Section 101317 of the Health and Safety Code is amended
to read:
101317.
(a) For purposes of this article, allocations shall be made to the
administrative bodies of qualifying local health jurisdictions
described as public health administrative organizations in Section
101185, and pursuant to Section 101315, in the following manner:
(1) (A) For the 2003-04 fiscal year and subsequent fiscal years,
to the administrative bodies of each local health jurisdiction, a
basic allotment of one hundred thousand dollars ($100,000), subject
to the availability of funds appropriated in the annual Budget Act or
some other act.
(B) For the 2002-03 fiscal year, the basic allotment of one
hundred thousand dollars ($100,000) shall be reduced by the amount of
federal funding allocated as part of a basic allotment for the
purposes of this article to local health jurisdictions in the 2001-02
fiscal year.
(2) (A) Except as provided in subdivision (c), after determining
the amount allowed for the basic allotment as provided in paragraph
(1), the balance of the annual appropriation for purposes of this
article, if any, shall be allotted on a per capita basis to the
administrative bodies of each local health jurisdiction in the
proportion that the population of that local health jurisdiction
bears to the population of all eligible local health jurisdictions of
the state.
(B) The population estimates used for the calculation of the per
capita allotment pursuant to subparagraph (A) shall be based on the
Department of Finance's E-1 Report, "City/County Populations
Estimates with Annual Percentage Changes," as of January 1 of the
previous year. However, if within a local health jurisdiction there
are one or more city health jurisdictions, the local health
jurisdiction shall subtract the population of the city or cities from
the local health jurisdiction total population for purposes of
calculating the per capita total.
(b) If the amounts appropriated are insufficient to fully fund the
allocations specified in subdivision (a), the department shall
prorate and adjust each local health jurisdiction's allocation so
that the total amount allocated equals the amount appropriated.
(c) For the 2002-03 fiscal year and subsequent fiscal years, where
the federally approved collaborative state-local plan identifies an
allocation method, other than the basic allotment and per capita
method described in subdivision (a), for specific funding to a local
public health jurisdiction, including, but not limited to, funding
laboratory training, chemical and nuclear terrorism preparedness,
smallpox preparedness, and information technology approaches, that
funding shall be paid to the administrative bodies of those local
health jurisdictions in accordance with the federally approved
collaborative state-local plan for bioterrorism preparedness and
other public health threats in the state.
(d) Funds appropriated pursuant to the annual Budget Act or some
other act for allocation to local health jurisdictions pursuant to
this article shall be disbursed quarterly to local health
jurisdictions beginning July 1, 2002, using the following process:
(1) Each fiscal year, upon the submission of an application for
funding by the administrative body of a local health jurisdiction,
the department shall make the first quarterly payment to each
eligible local health jurisdiction. Initially, that application
shall include a plan and budget for the local program that is in
accordance with the department's plans and priorities for
bioterrorism preparedness and response, and other public health
threats and emergencies, and a certification by the chairperson of
the board of supervisors or the mayor of a city with a local health
department that the funds received pursuant to this article will not
be used to supplant other funding sources in violation of subdivision
(d) of Section 101315. In subsequent years, the department shall
develop a streamlined process for continuation of funding that will
address new federal requirements and will assure the continuity of
local plan activities.
(2) The department shall establish procedures and a format for the
submission of the local health jurisdiction's plan and budget. The
local health jurisdiction's plan shall be consistent with the
department's plans and priorities for bioterrorism preparedness and
response and other public health threats and emergencies in
accordance with requirements specified in the department's federal
grant award. Payments to local health jurisdictions beyond the first
quarter shall be contingent upon the approval of the department of
the local health jurisdiction's plan and the local health
jurisdiction's progress in implementing the provisions of the local
health jurisdiction's plan, as determined by the department.
(3) If a local health jurisdiction does not apply or submits a
noncompliant application for its allocation, those funds provided
under this article may be redistributed according to subdivision (a)
to the remaining local health jurisdictions.
(e) Funds shall be used for activities to improve and enhance
local health jurisdictions' preparedness for and response to
bioterrorism and other public health threats and emergencies, and for
any other purposes, as determined by the department, that are
consistent with the purposes for which the funds were appropriated.
(f) Any local health jurisdiction that receives funds pursuant to
this article shall deposit those funds in a special local public
health preparedness trust fund established solely for this purpose
before transferring or expending the funds for any of the uses
allowed pursuant to this article. The interest earned on moneys in
the fund shall accrue to the benefit of the fund and shall be
expended for the same purposes as other moneys in the fund.
(g) (1) A local health jurisdiction that receives funding pursuant
to this article shall submit reports that display cost data and the
activities funded by moneys deposited in its local public health
preparedness trust fund to the department on a regular basis in a
form and according to procedures prescribed by the department.
(2) The department, in consultation with local health
jurisdictions, shall develop required content for the reports
required under paragraph (1), which shall include, but shall not be
limited to, data and information needed to implement this article and
to satisfy federal reporting requirements. The chairperson of the
board of supervisors or the mayor of a city with a local health
department shall certify the accuracy of the reports and that the
moneys appropriated for the purposes of this article have not been
used to supplant other funding sources.
(h) The administrative body of a local health jurisdiction may
enter into a contract with the department and the department may
enter into a contract with that local health jurisdiction for the
department to administer all or a portion of the moneys allocated to
the local health jurisdiction pursuant to this article. The
department may use funds retained on behalf of a local jurisdiction
pursuant to this subdivision solely for the purposes of administering
the jurisdiction's bioterrorism preparedness activities. The funds
appropriated pursuant to this article and retained by the department
pursuant to this subdivision are available for expenditure and
encumbrance for the purposes of support or local assistance.
(i) The department may recoup from a local health jurisdiction any
moneys allocated pursuant to this article that are unspent or that
are not expended for purposes specified in subdivision (d). The
department may also recoup funds expended by a local health
jurisdiction in violation of subdivision (d) of Section 101315. The
department may withhold quarterly payments of moneys to a local
health jurisdiction if the local health jurisdiction is not in
compliance with this article or the terms of that local health
jurisdiction's plan as approved by the department. Before any funds
are recouped or withheld from a local health jurisdiction, the
department shall meet with local health officials to discuss the
status of the unspent moneys or the disputed use of the funds, or
both.
(j) Notwithstanding any other provision of law, moneys made
available for bioterrorism preparedness pursuant to this article in
the 2001-02 fiscal year shall be available for expenditure and
encumbrance until June 30, 2003. Moneys made available for
bioterrorism preparedness pursuant to this article from July 1, 2002,
to August 30, 2003, inclusive, shall be available for expenditure
and encumbrance until August 30, 2004. Moneys made available in the
2003-04 Budget Act for bioterrorism preparedness shall be available
for expenditure and encumbrance until August 30, 2005.
SEC. 132. Section 101850 of the Health and Safety Code is amended
to read:
101850.
The Legislature finds and declares the following:
(a) (1) Due to the challenges facing the Alameda County Medical
Center arising from changes in the public and private health
industries, the Alameda County Board of Supervisors has determined
that a transfer of governance of the Alameda County Medical Center to
an independent governing body, a hospital authority, is needed to
improve the efficiency, effectiveness, and economy of the community
health services provided at the medical center. The board of
supervisors has further determined that the creation of an
independent hospital authority strictly and exclusively dedicated to
the management, administration, and control of the medical center, in
a manner consistent with the county's obligations under Section
17000 of the Welfare and Institutions Code, is the best way to
fulfill its commitment to the medically indigent, special needs, and
general populations of Alameda County. To accomplish this, it is
necessary that the board of supervisors be given authority to create
a hospital authority. Because there is no general law under which
this authority could be formed, the adoption of a special act and the
formation of a special authority is required.
(2) The following definitions shall apply for purposes of this
section:
(A) "The county" means the County of Alameda.
(B) "Governing board" means the governing body of the hospital
authority.
(C) "Hospital authority" means the separate public agency
established by the Board of Supervisors of Alameda County to manage,
administer, and control the Alameda County Medical Center.
(D) "Medical center" means the Alameda County Medical Center.
(b) The board of supervisors of the county may, by ordinance,
establish a hospital authority separate and apart from the county for
the purpose of effecting a transfer of the management,
administration, and control of the medical center in accordance with
Section 14000.2 of the Welfare and Institutions Code. A hospital
authority established pursuant to this chapter shall be strictly and
exclusively dedicated to the management, administration, and control
of the medical center within parameters set forth in this chapter,
and in the ordinance, bylaws, and contracts adopted by the board of
supervisors which shall not be in conflict with this chapter, Section
1442.5 of this code, or Section 17000 of the Welfare and
Institutions Code.
(c) A hospital authority established pursuant to this chapter
shall be governed by a board that is appointed, both initially and
continually, by the Board of Supervisors of the County of Alameda.
This hospital authority governing board shall reflect both the
expertise necessary to maximize the quality and scope of care at the
medical center in a fiscally responsible manner and the diverse
interest that the medical center serves. The enabling ordinance shall
specify the membership of the hospital authority governing board,
the qualifications for individual members, the manner of appointment,
selection, or removal of governing board members, their terms of
office, and all other matters that the board of supervisors deems
necessary or convenient for the conduct of the hospital authority's
activities.
(d) The mission of the hospital authority shall be the management,
administration, and other control, as determined by the board of
supervisors, of the group of public hospitals, clinics, and programs
that comprise the medical center, in a manner that ensures
appropriate, quality, and cost-effective medical care as required of
counties by Section 17000 of the Welfare and Institutions Code, and,
to the extent feasible, other populations, including special
populations in Alameda County.
(e) The board of supervisors shall adopt bylaws for the medical
center that set forth those matters related to the operation of the
medical center by the hospital authority that the board of
supervisors deems necessary and appropriate. The bylaws shall become
operative upon approval by a majority vote of the board of
supervisors. Any changes or amendments to the bylaws shall be by
majority vote of the board of supervisors.
(f) The hospital authority created and appointed pursuant to this
section is a duly constituted governing body within the meaning of
Section 1250 and Section 70035 of Title 22 of the California Code of
Regulations as currently written or subsequently amended.
(g) Unless otherwise provided by the board of supervisors by way
of resolution, the hospital authority is empowered, or the board of
supervisors is empowered on behalf of the hospital authority, to
apply as a public agency for one or more licenses for the provision
of health care pursuant to statutes and regulations governing
licensing as currently written or subsequently amended.
(h) In the event of a change of license ownership, the governing
body of the hospital authority shall comply with the obligations of
governing bodies of general acute care hospitals generally as set
forth in Section 70701 of Title 22 of the California Code of
Regulations, as currently written or subsequently amended, as well as
the terms and conditions of the license. The hospital authority
shall be the responsible party with respect to compliance with these
obligations, terms, and conditions.
(i) (1) Any transfer by the county to the hospital authority of
the administration, management, and control of the medical center,
whether or not the transfer includes the surrendering by the county
of the existing general acute care hospital license and corresponding
application for a change of ownership of the license, shall not
affect the eligibility of the county, or in the case of a change of
license ownership, the hospital authority, to do any of the
following:
(A) Participate in, and receive allocations pursuant to, the
California Healthcare for the Indigent Program (CHIP).
(B) Receive supplemental reimbursements from the Emergency
Services and Supplemental Payments Fund created pursuant to Section
14085.6 of the Welfare and Institutions Code.
(C) Receive appropriations from the Medi-Cal Inpatient Payment
Adjustment Fund without relieving the county of its obligation to
make intergovernmental transfer payments related to the Medi-Cal
Inpatient Payment Adjustment Fund pursuant to Section 14163 of the
Welfare and Institutions Code.
(D) Receive Medi-Cal capital supplements pursuant to Section
14085.5 of the Welfare and Institutions Code.
(E) Receive any other funds that would otherwise be available to a
county hospital.
(2) Any transfer described in paragraph (1) shall not otherwise
disqualify the county, or in the case of a change in license
ownership, the hospital authority, from participating in any of the
following:
(A) Other funding sources either specific to county hospitals or
county ambulatory care clinics or for which there are special
provisions specific to county hospitals or to county ambulatory care
clinics.
(B) Funding programs in which the county, on behalf of the medical
center and the Alameda County Health Care Services Agency, had
participated prior to the creation of the hospital authority, or
would otherwise be qualified to participate in had the hospital
authority not been created, and administration, management, and
control not been transferred by the county to the hospital authority,
pursuant to this chapter.
(j) A hospital authority created pursuant to this chapter shall be
a legal entity separate and apart from the county and shall file the
statement required by Section 53051 of the Government Code. The
hospital authority shall be a government entity separate and apart
from the county, and shall not be considered to be an agency,
division, or department of the county. The hospital authority shall
not be governed by, nor be subject to, the charter of the county and
shall not be subject to policies or operational rules of the county,
including, but not limited to, those relating to personnel and
procurement.
(k) (1) Any contract executed by and between the county and the
hospital authority shall provide that liabilities or obligations of
the hospital authority with respect to its activities pursuant to the
contract shall be the liabilities or obligations of the hospital
authority, and shall not become the liabilities or obligations of the
county.
(2) Any liabilities or obligations of the hospital authority with
respect to the liquidation or disposition of the hospital authority's
assets upon termination of the hospital authority shall not become
the liabilities or obligations of the county.
(3) Any obligation of the hospital authority, statutory,
contractual, or otherwise, shall be the obligation solely of the
hospital authority and shall not be the obligation of the county or
the state.
(l) (1) Notwithstanding any other provision of this section, any
transfer of the administration, management, or assets of the medical
center, whether or not accompanied by a change in licensing, shall
not relieve the county of the ultimate responsibility for indigent
care pursuant to Section 17000 of the Welfare and Institutions Code
or any obligation pursuant to Section 1442.5 of this code.
(2) Any contract executed by and between the county and the
hospital authority shall provide for the indemnification of the
county by the hospital authority for liabilities as specifically set
forth in the contract, except that the contract shall include a
provision that the county shall remain liable for its own negligent
acts.
(3) Indemnification by the hospital authority shall not be
construed as divesting the county from its ultimate responsibility
for compliance with Section 17000 of the Welfare and Institutions
Code.
(m) Notwithstanding the provisions of this section relating to the
obligations and liabilities of the hospital authority, a transfer of
control or ownership of the medical center shall confer onto the
hospital authority all the rights and duties set forth in state law
with respect to hospitals owned or operated by a county.
(n) (1) A transfer of the maintenance, operation, and management
or ownership of the medical center to the hospital authority shall
comply with the provisions of Section 14000.2 of the Welfare and
Institutions Code.
(2) A transfer of maintenance, operation, and management or
ownership to the hospital authority may be made with or without the
payment of a purchase price by the hospital authority and otherwise
upon the terms and conditions that the parties may mutually agree,
which terms and conditions shall include those found necessary by the
board of supervisors to ensure that the transfer will constitute an
ongoing material benefit to the county and its residents.
(3) A transfer of the maintenance, operation, and management to
the hospital authority shall not be construed as empowering the
hospital authority to transfer any ownership interest of the county
in the medical center except as otherwise approved by the board of
supervisors.
(o) The board of supervisors shall retain control over the use of
the medical center physical plant and facilities except as otherwise
specifically provided for in lawful agreements entered into by the
board of supervisors. Any lease agreement or other agreement between
the county and the hospital authority shall provide that county
premises shall not be sublet without the approval of the board of
supervisors.
(p) The statutory authority of a board of supervisors to prescribe
rules that authorize a county hospital to integrate its services
with those of other hospitals into
a system of community service that offers free choice
of hospitals to those requiring hospital care, as set forth in
Section 14000.2 of the Welfare and Institutions Code, shall apply to
the hospital authority upon a transfer of maintenance, operation, and
management or ownership of the medical center by the county to the
hospital authority.
(q) The hospital authority shall have the power to acquire and
possess real or personal property and may dispose of real or personal
property other than that owned by the county, as may be necessary
for the performance of its functions. The hospital authority shall
have the power to sue or be sued, to employ personnel, and to
contract for services required to meet its obligations.
(r) Any agreement between the county and the hospital authority
shall provide that all existing services provided by the medical
center shall continue to be provided to the county through the
medical center subject to the policy of the county and consistent
with the county's obligations under Section 17000 of the Welfare and
Institutions Code.
(s) A hospital authority to which the maintenance, operation, and
management or ownership of the medical center is transferred shall be
a "district" within the meaning set forth in the County Employees
Retirement Law of 1937 (Chapter 3 (commencing with Section 31450) of
Part 3 of Division 4 of Title 3 of the Government Code). Employees of
a hospital authority are eligible to participate in the County
Employees Retirement System to the extent permitted by law.
(t) Members of the governing board of the hospital authority shall
not be vicariously liable for injuries caused by the act or omission
of the hospital authority to the extent that protection applies to
members of governing boards of local public entities generally under
Section 820.9 of the Government Code.
(u) The hospital authority shall be a public agency subject to the
Myers-Milias-Brown Act (Chapter 10 (commencing with Section 3500) of
Division 4 of Title 1 of the Government Code).
(v) Any transfer of functions from county employee classifications
to a hospital authority established pursuant to this section shall
result in the recognition by the hospital authority of the employee
organization that represented the classifications performing those
functions at the time of the transfer.
(w) (1) In exercising its powers to employ personnel, as set forth
in subdivision (p), the hospital authority shall implement, and the
board of supervisors shall adopt, a personnel transition plan. The
personnel transition plan shall require all of the following:
(A) Ongoing communications to employees and recognized employee
organizations regarding the impact of the transition on existing
medical center employees and employee classifications.
(B) Meeting and conferring on all of the following issues:
(i) The timeframe for which the transfer of personnel shall occur.
The timeframe shall be subject to modification by the board of
supervisors as appropriate, but in no event shall it exceed one year
from the effective date of transfer of governance from the board of
supervisors to the hospital authority.
(ii) A specified period of time during which employees of the
county impacted by the transfer of governance may elect to be
appointed to vacant positions with the Alameda County Health Care
Services Agency for which they have tenure.
(iii) A specified period of time during which employees of the
county impacted by the transfer of governance may elect to be
considered for reinstatement into positions with the county for which
they are qualified and eligible.
(iv) Compensation for vacation leave and compensatory leave
accrued while employed with the county in a manner that grants
affected employees the option of either transferring balances or
receiving compensation to the degree permitted employees laid off
from service with the county.
(v) A transfer of sick leave accrued while employed with the
county to hospital authority employment.
(vi) The recognition by the hospital authority of service with the
county in determining the rate at which vacation accrues.
(vii) The possible preservation of seniority, pensions, health
benefits, and other applicable accrued benefits of employees of the
county impacted by the transfer of governance.
(2) Nothing in this subdivision shall be construed as prohibiting
the hospital authority from determining the number of employees, the
number of full-time equivalent positions, the job descriptions, and
the nature and extent of classified employment positions.
(3) Employees of the hospital authority are public employees for
purposes of Division 3.6 (commencing with Section 810) of Title 1 of
the Government Code relating to claims and actions against public
entities and public employees.
(x) Any hospital authority created pursuant to this section shall
be bound by the terms of the memorandum of understanding executed by
and between the county and health care and management employee
organizations that is in effect as of the date this legislation
becomes operative in the county. Upon the expiration of the
memorandum of understanding, the hospital authority shall have sole
authority to negotiate subsequent memorandums of understanding with
appropriate employee organizations. Subsequent memorandums of
understanding shall be approved by the hospital authority.
(y) The hospital authority created pursuant to this section may
borrow from the county and the county may lend the hospital authority
funds or issue revenue anticipation notes to obtain those funds
necessary to operate the medical center and otherwise provide medical
services.
(z) The hospital authority shall be subject to state and federal
taxation laws that are applicable to counties generally.
(aa) The hospital authority, the county, or both, may engage in
marketing, advertising, and promotion of the medical and health care
services made available to the community at the medical center.
(bb) The hospital authority shall not be a "person" subject to
suit under the Cartwright Act (Chapter 2 (commencing with Section
16700) of Part 2 of Division 7 of the Business and Professions Code).
(cc) Notwithstanding Article 4.7 (commencing with Section 1125) of
Chapter 1 of Division 4 of Title 1 of the Government Code related to
incompatible activities, no member of the hospital authority
administrative staff shall be considered to be engaged in activities
inconsistent and incompatible with his or her duties as a result of
employment or affiliation with the county.
(dd) (1) The hospital authority may use a computerized management
information system in connection with the administration of the
medical center.
(2) Information maintained in the management information system or
in other filing and records maintenance systems that is confidential
and protected by law shall not be disclosed except as provided by
law.
(3) The records of the hospital authority, whether paper records,
records maintained in the management information system, or records
in any other form, that relate to trade secrets or to payment rates
or the determination thereof, or which relate to contract
negotiations with providers of health care, shall not be subject to
disclosure pursuant to the California Public Records Act (Chapter 5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code). The transmission of the records, or the information
contained therein in an alternative form, to the board of
supervisors shall not constitute a waiver of exemption from
disclosure, and the records and information once transmitted shall be
subject to this same exemption. The information, if compelled
pursuant to an order of a court of competent jurisdiction or
administrative body in a manner permitted by law, shall be limited to
in-camera review, which, at the discretion of the court, may include
the parties to the proceeding, and shall not be made a part of the
court file unless sealed.
(ee) (1) Notwithstanding any other law, the governing board may
order that a meeting held solely for the purpose of discussion or
taking action on hospital authority trade secrets, as defined in
subdivision (d) of Section 3426.1 of the Civil Code, shall be held in
closed session. The requirements of making a public report of
actions taken in closed session and the vote or abstention of every
member present may be limited to a brief general description devoid
of the information constituting the trade secret.
(2) The governing board may delete the portion or portions
containing trade secrets from any documents that were finally
approved in the closed session that are provided to persons who have
made the timely or standing request.
(3) Nothing in this section shall be construed as preventing the
governing board from meeting in closed session as otherwise provided
by law.
(ff) Open sessions of the hospital authority shall constitute
official proceedings authorized by law within the meaning of Section
47 of the Civil Code. The privileges set forth in that section with
respect to official proceedings shall apply to open sessions of the
hospital authority.
(gg) The hospital authority shall be a public agency for purposes
of eligibility with respect to grants and other funding and loan
guarantee programs. Contributions to the hospital authority shall be
tax deductible to the extent permitted by state and federal law.
Nonproprietary income of the hospital authority shall be exempt from
state income taxation.
(hh) Contracts by and between the hospital authority and the state
and contracts by and between the hospital authority and providers of
health care, goods, or services may be let on a nonbid basis and
shall be exempt from Chapter 2 (commencing with Section 10290) of
Part 2 of Division 2 of the Public Contract Code.
(ii) (1) Provisions of the Evidence Code, the Government Code,
including the Public Records Act (Chapter 5 (commencing with Section
6250) of Division 7 of Title 1 of the Government Code), the Civil
Code, the Business and Professions Code, and other applicable law
pertaining to the confidentiality of peer review activities of peer
review bodies shall apply to the peer review activities of the
hospital authority. Peer review proceedings shall constitute an
official proceeding authorized by law within the meaning of Section
47 of the Civil Code and those privileges set forth in that section
with respect to official proceedings shall apply to peer review
proceedings of the hospital authority. If the hospital authority is
required by law or contractual obligation to submit to the state or
federal government peer review information or information relevant to
the credentialing of a participating provider, that submission shall
not constitute a waiver of confidentiality. The laws pertaining to
the confidentiality of peer review activities shall be together
construed as extending, to the extent permitted by law, the maximum
degree of protection of confidentiality.
(2) Notwithstanding any other law, Section 1461 shall apply to
hearings on the reports of hospital medical audit or quality
assurance committees.
(jj) The hospital authority shall carry general liability
insurance to the extent sufficient to cover its activities.
(kk) In the event the board of supervisors determines that the
hospital authority should no longer function for the purposes as set
forth in this chapter, the board of supervisors may, by ordinance,
terminate the activities of the hospital authority and expire the
hospital authority as an entity.
(ll) A hospital authority which is created pursuant to this
section but which does not obtain the administration, management, and
control of the medical center or which has those duties and
responsibilities revoked by the board of supervisors shall not be
empowered with the powers enumerated in this section.
(mm) (1) The county shall establish baseline data reporting
requirements for the medical center consistent with the Medically
Indigent Health Care Reporting System (MICRS) program established
pursuant to Section 16910 of the Welfare and Institutions Code and
shall collect that data for at least one year prior to the final
transfer of the medical center to the hospital authority established
pursuant to this chapter. The baseline data shall include, but not be
limited to, all of the following:
(A) Inpatient days by facility by quarter.
(B) Outpatient visits by facility by quarter.
(C) Emergency room visits by facility by quarter.
(D) Number of unduplicated users receiving services within the
medical center.
(2) Upon transfer of the medical center, the county shall
establish baseline data reporting requirements for each of the
medical center inpatient facilities consistent with data reporting
requirements of the Office of Statewide Health Planning and
Development, including, but not limited to, monthly average daily
census by facility for all of the following:
(A) Acute care, excluding newborns.
(B) Newborns.
(C) Skilled nursing facility, in a distinct part.
(3) From the date of transfer of the medical center to the
hospital authority, the hospital authority shall provide the county
with quarterly reports specified in paragraphs (1) and (2) and any
other data required by the county. The county, in consultation with
health care consumer groups, shall develop other data requirements
that shall include, at a minimum, reasonable measurements of the
changes in medical care for the indigent population of Alameda County
that result from the transfer of the administration, management, and
control of the medical center from the county to the hospital
authority.
(nn) A hospital authority established pursuant to this section
shall comply with the requirements of Sections 53260 and 53261 of the
Government Code.
SEC. 133. Section 113995 of the Health and Safety Code is amended
to read:
113995.
(a) Except as otherwise provided in this section, all potentially
hazardous food being transported to or from a retail food facility
for a period of longer than 30 minutes, excluding raw shell eggs,
shall be held at or below 7 degrees Celsius (45 degrees Fahrenheit)
or shall be kept at or above 57.2 degrees Celsius (135 degrees
Fahrenheit) at all times. Storage and display of raw shell eggs shall
be governed by Sections 113997 and 114351.
(b) A retail food facility may accept potentially hazardous food
at or below 7 degrees Celsius (45 degrees Fahrenheit), pursuant to
subdivision (a), if the potentially hazardous food is cooled within
four hours of receipt to a temperature at or below 5 degrees Celsius
(41 degrees Fahrenheit).
(c) All potentially hazardous food shall be held at or below 5
degrees Celsius (41 degrees Fahrenheit) or shall be kept at or above
57.2 degrees Celsius (135 degrees Fahrenheit) at all times, except
for the following:
(1) Unshucked live molluscan shellfish shall not be stored or
displayed at a temperature above 7 degrees Celsius (45 degrees
Fahrenheit).
(2) Frozen potentially hazardous foods shall be stored and
displayed in their frozen state unless being thawed in accordance
with Section 114085.
(3) Potentially hazardous foods held for dispensing in serving
lines and salad bars during periods not to exceed 12 hours in any
24-hour period or held in vending machines may not exceed 7 degrees
Celsius (45 degrees Fahrenheit). For purposes of this subdivision, a
display case shall not be deemed to be a serving line.
(4) Pasteurized milk and pasteurized milk products in original,
sealed containers shall not be held at a temperature above 7 degrees
Celsius (45 degrees Fahrenheit).
(d) Potentially hazardous foods may be held at temperatures other
than those specified in this section only under the following
circumstances:
(1) While being heated or cooled.
(2) When the food facility operates pursuant to a HACCP plan
adopted pursuant to Section 114055 or 114056.
(3) When time only, rather than time in conjunction with
temperature, is used as the public health control for a working
supply of potentially hazardous food before cooking, or for
ready-to-eat potentially hazardous food that is displayed or held for
service for immediate consumption, but only if all of the following
conditions are met:
(A) The food shall be marked or otherwise identified to indicate
the time that is four hours after the time when the food is removed
from temperature control.
(B) The food shall be cooked and served, served if ready-to-eat,
or discarded within four hours after the time when the food is
removed from temperature control.
(C) Food in unmarked containers or packages, or marked to exceed a
four-hour time limit shall be discarded.
(D) Written procedures that ensure compliance with this paragraph
and with Section 114002 for food that is prepared, cooked, and
refrigerated before time is used as a public health control shall be
maintained in the food facility and made available to the enforcement
agency upon request.
(e) A thermometer accurate to plus or minus 1 degree Celsius (2
degrees Fahrenheit) shall be provided for each refrigeration unit,
shall be located to indicate the air temperature in the warmest part
of the unit and, except for vending machines, shall be affixed to be
readily visible. Except for vending machines, an accurate easily
readable metal probe thermometer suitable for measuring the
temperature of food shall be readily available on the premises.
SEC. 134. Section 118275 of the Health and Safety Code is amended
to read:
118275.
To containerize or store medical waste, a person shall do all of
the following:
(a) Medical waste shall be contained separately from other waste
at the point of origin in the producing facility. Sharps containers
may be placed in biohazard bags or in containers with biohazard bags.
(b) Biohazardous waste, except biohazardous waste as defined in
subdivision (g) of Section 117635, shall be placed in a red biohazard
bag conspicuously labeled with the words "Biohazardous Waste" or
with the international biohazard symbol and the word "BIOHAZARD."
(c) Sharps waste shall be contained in a sharps container pursuant
to Section 118285.
(d) (1) Biohazardous waste, which meets the conditions of
subdivision (f) of Section 117635 because it is contaminated through
contact with, or having previously contained, chemotherapeutic
agents, shall be segregated for storage, and, when placed in a
secondary container, that container shall be labeled with the words
"Chemotherapy Waste," "CHEMO," or other label approved by the
department on the lid and on the sides, so as to be visible from any
lateral direction, to ensure treatment of the biohazardous waste
pursuant to Section 118222.
(2) Biohazardous waste, which meets the conditions of subdivision
(f) of Section 117635 because it is comprised of human surgery
specimens or tissues which have been fixed in formaldehyde or other
fixatives, shall be segregated for storage and, when placed in a
secondary container, that container shall be labeled with the words
"Pathology Waste," "PATH," or other label approved by the department
on the lid and on the sides, so as to be visible from any lateral
direction, to ensure treatment of the biohazardous waste pursuant to
Section 118222.
(e) Sharps waste, which meets the conditions of subdivision (f) of
Section 117635, shall be placed in sharps containers labeled in
accordance with the industry standard with the words "Chemotherapy
Waste," "CHEMO," or other label approved by the department, and
segregated to ensure treatment of the sharps waste pursuant to
Section 118222.
(f) Biohazardous waste, which are recognizable human anatomical
parts, as specified in Section 118220, shall be segregated for
storage and, when placed in a secondary container for treatment as
pathology waste, that container shall be labeled with the words
"Pathology Waste," "PATH," or other label approved by the department
on the lid and on the sides, so as to be visible from any lateral
direction, to ensure treatment of the biohazardous waste pursuant to
Section 118222.
(g) Biohazardous waste, which meets the conditions specified in
subdivision (g) of Section 117635, shall be segregated for storage
and, when placed in a container or secondary container, that
container shall be labeled with the words "INCINERATION ONLY" or
other label approved by the department on the lid and on the sides,
so as to be visible from any lateral direction, to ensure treatment
of the biohazardous waste pursuant to Section 118222.
(h) A person may consolidate into a common container all of the
wastes in this section provided that the consolidated waste is
treated by an extremely high heat technology approved pursuant to
subparagraph (B) of paragraph (1) of subdivision (a) of Section
118215. The container shall be labeled with the biohazardous waste
symbol and the words "HIGH HEAT ONLY" or other label approved by the
department on the lid and on the sides, so as to be visible from any
lateral direction, to ensure treatment of the biohazardous waste
pursuant to this subdivision.
SEC. 135. Section 120440 of the Health and Safety Code is amended
to read:
120440.
(a) For the purposes of this chapter, the following definitions
shall apply:
(1) "Health care provider" means any person licensed pursuant to
Division 2 (commencing with Section 500) of the Business and
Professions Code or a clinic or health facility licensed pursuant to
Division 2 (commencing with Section 1200).
(2) "Schools, child care facilities, and family child care homes"
means those institutions referred to in subdivision (b) of Section
120335, regardless of whether they directly provide immunizations to
patients or clients.
(3) "WIC service provider" means any public or private nonprofit
agency contracting with the department to provide services under the
California Special Supplemental Food Program for Women, Infants, and
Children, as provided for in Article 2 (commencing with Section
123275) of Chapter 1 of Part 2 of Division 106.
(4) "Health care plan" means a health care service plan as defined
in subdivision (f) of Section 1345, a government-funded program the
purpose of which is paying the costs of health care, or an insurer as
described in Sections 10123.5 and 10123.55 of the Insurance Code,
regardless of whether the plan directly provides immunizations to
patients or clients.
(5) "County welfare department" means a county welfare agency
administering the California Work Opportunity and Responsibility to
Kids (CalWORKs) program, pursuant to Chapter 2 (commencing with
Section 11200.5) of Part 3 of Division 9 of the Welfare and
Institutions Code.
(6) "Foster care agency" means any of the county and state social
services agencies providing foster care services in California.
(b) (1) Local health officers may operate immunization information
systems pursuant to their authority under Section 120175, in
conjunction with the Immunization Branch of the State Department of
Health Services. Local health officers and the State Department of
Health Services may operate these systems in either or both of the
following manners:
(A) Separately within their individual jurisdictions.
(B) Jointly among more than one jurisdiction.
(2) Nothing in this subdivision shall preclude local health
officers from sharing the information set forth in paragraphs (1) to
(9), inclusive, of subdivision (c) with other health officers jointly
operating the system.
(c) Notwithstanding Sections 49075 and 49076 of the Education
Code, Chapter 5 (commencing with Section 10850) of Part 2 of Division
9 of the Welfare and Institutions Code, or any other provision of
law, unless a refusal to permit recordsharing is made pursuant to
subdivision (e), health care providers, and other agencies,
including, but not limited to, schools, child care facilities,
service providers for the California Special Supplemental Food
Program for Women, Infants, and Children (WIC), health care plans,
foster care agencies, and county welfare departments, may disclose
the information set forth in paragraphs (1) to (9), inclusive, from
the patient's medical record, or the client's record, to local health
departments operating countywide or regional immunization
information and reminder systems and the State Department of Health
Services. Local health departments and the State Department of Health
Services may disclose the information set forth in paragraphs (1) to
(9), inclusive, to each other, and upon a request for information
pertaining to a specific person, to health care providers taking care
of the patient. Local health departments and the State Department of
Health Services may disclose the information in paragraphs (1) to
(6), inclusive, and paragraphs (8) and (9), to schools, child care
facilities, county welfare departments, and family child care homes
to which the person is being admitted or in attendance, foster care
agencies in assessing and providing medical care for children in
foster care, and WIC service providers providing services to the
person, health care plans arranging for immunization services for the
patient, and county welfare departments assessing immunization
histories of dependents of CalWORKs participants, upon request for
information pertaining to a specific person. Determination of
benefits based upon immunization of a dependent CalWORKs participant
shall be made pursuant to Section 11265.8 of the Welfare and
Institutions Code. The following information shall be subject to this
subdivision:
(1) The name of the patient or client and names of the parents or
guardians of the patient or client.
(2) Date of birth of the patient or client.
(3) Types and dates of immunizations received by the patient or
client.
(4) Manufacturer and lot number for each immunization received.
(5) Adverse reaction to immunizations received.
(6) Other nonmedical information necessary to establish the
patient's or client's unique identity and record.
(7) Current address and telephone number of the patient or client
and the parents or guardians of the patient or client.
(8) Patient's or client's gender.
(9) Patient's or client's place of birth.
(d) (1) Health care providers, local health departments, and the
State Department of Health Services shall maintain the
confidentiality of information listed in subdivision (c) in the same
manner as other medical record information with patient
identification that they possess. These providers, departments, and
contracting agencies are subject to civil action and
criminal penalties for the wrongful
disclosure of the information listed in subdivision (c), in
accordance with existing law. They shall use the information listed
in subdivision (c) only for the following purposes:
(A) To provide immunization services to the patient or client,
including issuing reminder notifications to patients or clients or
their parents or guardians when immunizations are due.
(B) To provide or facilitate provision of third-party payer
payments for immunizations.
(C) To compile and disseminate statistical information of
immunization status on groups of patients or clients or populations
in California, without identifying information for these patients or
clients included in these groups or populations.
(D) In the case of health care providers only, as authorized by
Part 2.6 (commencing with Section 56) of Division 1 of the Civil
Code.
(2) Schools, child care facilities, family child care homes, WIC
service providers, foster care agencies, county welfare departments,
and health care plans shall maintain the confidentiality of
information listed in subdivision (c) in the same manner as other
client, patient, and pupil information that they possess. These
institutions and providers are subject to civil action and criminal
penalties for the wrongful disclosure of the information listed in
subdivision (c), in accordance with existing law. They shall use the
information listed in subdivision (c) only for those purposes
provided in subparagraphs (A) to (D), inclusive, of paragraph (1) and
as follows:
(A) In the case of schools, child care facilities, family child
care homes, and county welfare departments, to carry out their
responsibilities regarding required immunization for attendance or
participation benefits, or both, as described in Chapter 1
(commencing with Section 120325), and in Section 11265.8 of the
Welfare and Institutions Code.
(B) In the case of WIC service providers, to perform immunization
status assessments of clients and to refer those clients found to be
due or overdue for immunizations to health care providers.
(C) In the case of health care plans, to facilitate payments to
health care providers, to assess the immunization status of their
clients, and to tabulate statistical information on the immunization
status of groups of patients, without including patient-identifying
information in these tabulations.
(D) In the case of foster care agencies, to perform immunization
status assessments of foster children and to assist those foster
children found to be due or overdue for immunization in obtaining
immunizations from health care providers.
(e) A patient or a patient's parent or guardian may refuse to
permit recordsharing. The health care provider administering
immunization and any other agency possessing any patient or client
information listed in subdivision (c), if planning to provide patient
or client information to an immunization system, as described in
subdivision (b), shall inform the patient or client, or the parent or
guardian of the patient or client, of the following:
(1) The information listed in subdivision (c) may be shared with
local health departments, and the State Department of Health
Services. The health care provider or other agency shall provide the
name and address of the State Department of Health Services and of
the immunization registry with which the provider or other agency
will share the information.
(2) Any of the information shared with local health departments
and the State Department of Health Services shall be treated as
confidential medical information and shall be used only to share with
each other, and, upon request, with health care providers, schools,
child care facilities, family child care homes, WIC service
providers, county welfare departments, foster care agencies, and
health care plans. These providers, agencies, and institutions shall,
in turn, treat the shared information as confidential, and shall use
it only as described in subdivision (d).
(3) The patient or client, or parent or guardian of the patient or
client, has the right to examine any immunization-related
information shared in this manner and to correct any errors in it.
(4) The patient or client, or the parent or guardian of the
patient or client, may refuse to allow this information to be shared
in the manner described, or to receive immunization reminder
notifications at any time, or both.
(f) (1) The health care provider administering the immunization
and any other agency possessing any patient or client information
listed in subdivision (c) may inform the patient or client, or the
parent or guardian of the patient or client, by ordinary mail, of the
information in paragraphs (1) to (4), inclusive, of subdivision (e).
The mailing must include a reasonable means for refusal, such as a
return form or contact telephone number.
(2) The information in paragraphs (1) to (4), inclusive, of
subdivision (e) may also be presented to the parent or guardian of
the patient or client during any hospitalization of the patient or
client.
(g) If the patient or client, or parent or guardian of the patient
or client, refuses to allow the information to be shared, pursuant
to paragraph (4) of subdivision (e), the health care provider or
other agency may not share this information in the manner described
in subdivision (c), except as provided in subparagraph (D) of
paragraph (1) of subdivision (d).
(h) Upon request of the patient or client, or the parent or
guardian of the patient or client, in writing or by other means
acceptable to the recipient, a local health department or the State
Department of Health Services that has received information about a
person pursuant to subdivision (c) shall do all of the following:
(1) Provide the name and address of other persons or agencies with
whom the recipient has shared the information.
(2) Stop sharing the information in its possession after the date
of the receipt of the request.
(i) Upon notification, in writing or by other means acceptable to
the recipient, of an error in the information, a local health
department or the State Department of Health Services that has
information about a person pursuant to subdivision (c) shall correct
the error. If the recipient is aware of a disagreement about whether
an error exists, information to that effect may be included.
(j) (1) Any party authorized to make medical decisions for a
patient or client, including, but not limited to, those authorized by
Section 6922, 6926, or 6927 of, or Part 1.5 (commencing with Section
6550), Chapter 2 (commencing with Section 6910) of Part 4, or
Chapter 1 (commencing with Section 7000) of Part 6 of Division 11 of,
the Family Code, Section 1530.6 of the Health and Safety Code, or
Sections 727 and 1755.3 of, and Article 6 (commencing with Section
300) of Chapter 2 of Part 1 of Division 2 of, the Welfare and
Institutions Code, may permit sharing of the patient's or client's
record with any of the immunization information systems authorized by
this section.
(2) For a patient or client who is a dependent of a juvenile
court, the court or a person or agency designated by the court may
permit this recordsharing.
(3) For a patient or client receiving foster care, a person or
persons licensed to provide residential foster care, or having legal
custody, may permit this recordsharing.
(k) For purposes of supporting immunization information systems,
the State Department of Health Services shall assist its Immunization
Branch in both of the following:
(1) Providing department records containing information about
publicly funded immunizations.
(2) Supporting efforts for the reporting of publicly funded
immunizations into immunization information systems by health care
providers and health care plans.
(l) Section 120330 shall not apply to this section.
SEC. 136. The heading of Article 45 (commencing with Section
123620) of Chapter 2 of Part 2 of Division 106 of the Health and
Safety Code is amended and renumbered to read:
Article 4.5. Fetal Ultrasound
SEC. 137. Section 125001 of the Health and Safety Code is amended
to read:
125001.
(a) The department shall establish a program for the development,
provision, and evaluation of genetic disease testing, and may provide
laboratory testing facilities or make grants to, contract with, or
make payments to, any laboratory that it deems qualified and
cost-effective to conduct testing or with any metabolic specialty
clinic to provide necessary treatment with qualified specialists. The
program shall provide genetic screening and followup services for
persons who have the screening.
(b) The department shall expand statewide screening of newborns to
include tandem mass spectrometry screening for fatty acid oxidation,
amino acid, and organic acid disorders and congenital adrenal
hyperplasia as soon as possible. The department shall provide
information with respect to these disorders and available testing
resources to all women receiving prenatal care and to all women
admitted to a hospital for delivery. If the department is unable to
provide this statewide screening by August 1, 2005, the department
shall temporarily obtain these testing services through a competitive
bid process from one or more public or private laboratories that
meet the department's requirements for testing, quality assurance,
and reporting. If the department determines that contracting for
these services is more cost-effective, and meets the other
requirements of this chapter, than purchasing the tandem mass
spectrometry equipment themselves, the department shall contract with
one or more public or private laboratories.
(c) The department shall report to the Legislature regarding the
progress of the program on or before July 1, 2006. The report shall
include the costs for screening, followup, and treatment as compared
to costs and morbidity averted for each condition tested for in the
program.
SEC. 138. Section 1215.2 of the Insurance Code is amended to read:
1215.2.
(a) No person shall make a tender offer for, or a request or
invitation for tenders of, or enter into an agreement to exchange
securities for or acquire in the open market, any voting security, or
any security convertible into a voting security, of a domestic
insurer or of any other person controlling a domestic insurer, if the
other person is not substantially engaged either directly or through
its affiliates in any businesses other than that of insurance, if,
as a result of the consummation thereof, the person would, directly
or indirectly, acquire control of the insurer, and no person shall
enter into an agreement to merge with or otherwise to acquire control
of a domestic insurer, unless, at the time copies of the offer,
purchase, request, or invitation are first published, sent, or given
to security holders or the agreement or transaction is entered into,
as the case may be, the person has filed with the commissioner, and
has sent to the insurer, a statement containing the following
information, and any additional information as the commissioner may
by rule or regulation prescribe as necessary or appropriate in the
public interest or for the protection of policyholders or
shareholders:
(1) The background and identity of all persons by whom or on whose
behalf the purchases or the exchange, merger, or other acquisition
of control are to be effected.
(2) The source and amount of the funds or other consideration used
or to be used in making the purchases or in effecting the exchange,
merger, or other acquisition of control, and, if any part of the
funds or other consideration has been or is to be borrowed or
otherwise obtained for the purpose of making the purchases or
effecting the exchange, merger, or other acquisition of control, a
description of the transaction and the names of the parties thereto.
However, where a source of funds is a loan made in the lender's
ordinary course of business, if the person filing the statement so
requests, the name of the lender shall not be made available to the
public.
(3) Any plans or proposals which those persons may have to
liquidate the insurer, to sell its assets or merge it with any
person, or to make any other major change in its business or
corporate structure or management.
(4) The amount of each class of voting securities or securities
which may be converted into voting securities of the insurer or the
controlling person which are beneficially owned, and the amount of
each class of voting securities or securities which may be converted
into voting securities of the insurer or the controlling person
concerning which there is a right to acquire beneficial ownership, by
each person and by each affiliate of each person, together with the
name and address of each affiliate.
(5) Information as to any contracts, arrangements, or
understandings with any person with respect to any securities of the
insurer or the controlling person, including, but not limited to,
transfer of any of the securities, joint ventures, loan or option
arrangements, puts or calls, guarantees of loans, guarantees against
loss or guarantees of profits, division of losses or profits, or the
giving or withholding of proxies, naming the persons with whom the
contracts, arrangements, or understandings have been entered into,
and giving the details thereof.
All requests or invitations for tenders or advertisements making a
tender offer or requesting or inviting tenders of the voting
securities of the insurer or the controlling person made by or on
behalf of the person, and a copy of the agreement to exchange or
otherwise acquire securities or to merge with or otherwise to acquire
control of the insurer, shall be filed with the commissioner and
sent to the insurer as a part of the statement and shall contain the
information contained in the statement as the commissioner may by
rule or regulation prescribe. Copies of any additional material
soliciting or requesting the tender offers subsequent to the initial
solicitation or request, and copies of any amendment to the
agreement, shall contain the information as the commissioner may by
rule or regulation prescribe as necessary or appropriate in the
public interest or for the protection of policyholders or
shareholders, and shall be filed with the commissioner and sent to
the insurer not later than the time copies of the material are first
published or sent or given to security holders or the amendment is
entered into.
(b) If the person required to file the statement referred to in
subdivision (a) is a partnership, limited partnership, syndicate, or
other group, the commissioner may require that the information called
for by paragraphs (1) to (5), inclusive, of subdivision (a) shall be
given with respect to: (1) each partner of the partnership or
limited partnership, (2) each member of the syndicate or group, and
(3) each person who controls the partner or member. If a person
referred to in paragraph (1), (2), or (3) of this subdivision is a
corporation or the person required to file the statement referred to
in subdivision (a) is a corporation, the commissioner may require
that the information called for by paragraphs (1) to (5), inclusive,
of subdivision (a) shall be given with respect to the corporation and
each officer and director of the corporation and each person who is
directly or indirectly the beneficial owner of more than 10 percent
of the outstanding voting securities of the corporation.
(c) If any tender offer, request, or invitation for tenders, or
agreement to exchange or otherwise acquire securities or to merge or
otherwise acquire control referred to in subdivision (a), is proposed
to be made by means of a registration statement under the federal
Securities Act of 1933, or in circumstances requiring the disclosure
of similar information under the federal Securities Exchange Act of
1934, or under a state law requiring similar registration or
disclosure, the person required to file the statement referred to in
subdivision (a) may file that registration statement with the
commissioner as full satisfaction of the requirement in subdivision
(a).
(d) The purchases, exchanges, mergers, or other acquisitions of
control referred to in subdivision (a) may not be made until the
commissioner approves the purchases, exchanges, mergers, or other
acquisitions of control. The commissioner shall approve or disapprove
the transaction within 60 days after the statement required by
subdivision (a) has been filed with the commissioner. The
commissioner may disapprove the transaction if the commissioner finds
any of the following:
(1) After the change of control the domestic insurer referred to
in subdivision (a) could not satisfy the requirements for the
issuance of a license to write the line or lines of insurance for
which it is presently licensed.
(2) The purchases, exchanges, mergers, or other acquisitions of
control would substantially lessen competition in insurance in this
state or create a monopoly therein.
(3) The financial condition of an acquiring person might
jeopardize the financial stability of the insurer, or prejudice the
interests of its policyholders.
(4) The plans or proposals which the acquiring person has to
liquidate the insurer, to sell its assets, or to merge it with any
person, or to make any other major change in its business or
corporate structure or management, are not fair and reasonable to
policyholders.
(5) The competence, experience, and integrity of those persons who
would control the operation of the insurer indicate that it would
not be in the interest of policyholders, or the public to permit them
to do so.
(e) The commissioner shall require the payment of two thousand
three hundred sixty dollars ($2,360) as a fee for filing an
application under this section, the amount to accompany the
application.
(f) This section shall not apply to any offer for or request or
invitation for tenders of any voting securities, or any agreement to
exchange securities for or otherwise acquire control, if the insurer
whose shares are to be acquired remains a direct or indirect
subsidiary of the same ultimate controlling company person within the
insurer's insurance holding company system, neither the acquiring
person nor any affiliate acquires or incurs any debt, guarantee, or
other liability related to the transaction, and no shares are
purchased by or sold to a person who is not an affiliated person in
that insurance holding company system, or if, and to the extent that,
the commissioner, by rule or regulation or by order, exempts the
offer, request, invitation, or agreement from the provisions of this
section as not comprehended within the purposes thereof.
SEC. 139. Section 98.2 of the Labor Code is amended to read:
98.2.
(a) Within 10 days after service of notice of an order, decision,
or award, the parties may seek review by filing an appeal to the
superior court, where the appeal shall be heard de novo. A copy of
the appeal request shall be served upon the Labor Commissioner by the
appellant. For purposes of computing the 10-day period after
service, Section 1013 of the Code of Civil Procedure is applicable.
(b) Whenever an employer files an appeal pursuant to this section,
the employer shall post an undertaking with the reviewing court in
the amount of the order, decision, or award. The undertaking shall
consist of an appeal bond issued by a licensed surety or a cash
deposit with the court in the amount of the order, decision, or
award. The employer shall provide written notification to the other
parties and the Labor Commissioner of the posting of the undertaking.
The undertaking shall be on the condition that, if any judgment is
entered in favor of the employee, the employer shall pay the amount
owed pursuant to the judgment, and if the appeal is withdrawn or
dismissed without entry of judgment, the employer shall pay the
amount owed pursuant to the order, decision, or award of the Labor
Commissioner unless the parties have executed a settlement agreement
for payment of some other amount, in which case the employer shall
pay the amount that the employer is obligated to pay under the terms
of the settlement agreement. If the employer fails to pay the amount
owed within 10 days of entry of the judgment, dismissal, or
withdrawal of the appeal, or the execution of a settlement agreement,
a portion of the undertaking equal to the amount owed, or the entire
undertaking if the amount owed exceeds the undertaking, is forfeited
to the employee.
(c) If the party seeking review by filing an appeal to the
superior court is unsuccessful in the appeal, the court shall
determine the costs and reasonable attorney's fees incurred by the
other parties to the appeal, and assess that amount as a cost upon
the party filing the appeal. An employee is successful if the court
awards an amount greater than zero.
(d) If no notice of appeal of the order, decision, or award is
filed within the period set forth in subdivision (a), the order,
decision, or award shall, in the absence of fraud, be deemed the
final order.
(e) The Labor Commissioner shall file, within 10 days of the order
becoming final pursuant to subdivision (d), a certified copy of the
final order with the clerk of the superior court of the appropriate
county unless a settlement has been reached by the parties and
approved by the Labor Commissioner. Judgment shall be entered
immediately by the court clerk in conformity therewith. The judgment
so entered has the same force and effect as, and is subject to all of
the provisions of law relating to, a judgment in a civil action, and
may be enforced in the same manner as any other judgment of the
court in which it is entered. Enforcement of the judgment shall
receive court priority.
(f) (1) In order to ensure that judgments are satisfied, the Labor
Commissioner may serve upon the judgment debtor, personally or by
first-class mail at the last known address of the judgment debtor
listed with the division, a form similar to, and requiring the
reporting of the same information as, the form approved or adopted by
the Judicial Council for purposes of subdivision (a) of Section
116.830 of the Code of Civil Procedure to assist in identifying the
nature and location of any assets of the judgment debtor.
(2) The judgment debtor shall complete the form and cause it to be
delivered to the division at the address listed on the form within
35 days after the form has been served on the judgment debtor, unless
the judgment has been satisfied. In case of willful failure by the
judgment debtor to comply with this subdivision, the division or the
judgment creditor may request the court to apply the sanctions
provided in Section 708.170 of the Code of Civil Procedure.
(g) Notwithstanding subdivision (e), the Labor Commissioner may
stay execution of any judgment entered upon an order, decision, or
award that has become final upon good cause appearing therefor and
may impose the terms and conditions of the stay of execution. A
certified copy of the stay of execution shall be filed with the clerk
entering the judgment.
(h) When a judgment is satisfied in fact, other than by execution,
the Labor Commissioner may, upon the motion of either party or on
its own motion, order entry of satisfaction of judgment. The clerk of
the court shall enter a satisfaction of judgment upon the filing of
a certified copy of the order.
(i) The Labor Commissioner shall make every reasonable effort to
ensure that judgments are satisfied, including taking all appropriate
legal action and requiring the employer to deposit a bond as
provided in Section 240.
(j) The judgment creditor, or the Labor Commissioner as assignee
of the judgment creditor, is entitled to court costs and reasonable
attorney's fees for enforcing the judgment that is rendered pursuant
to this section.
SEC. 140. Section 98.6 of the Labor Code is amended to read:
98.6.
(a) No person shall discharge an employee or in any manner
discriminate against any employee or applicant for employment because
the employee or applicant engaged in any conduct delineated in this
chapter, including the conduct described in subdivision (k) of
Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of
Division 2, or because the employee or applicant for employment has
filed a bona fide complaint or claim or instituted or caused to be
instituted any proceeding under or relating to his or her rights,
which are under the jurisdiction of the Labor Commissioner, or
because the employee has initiated any action or notice pursuant to
Section 2699, or has testified or is about to testify in any such
proceeding or because of the exercise by the employee or applicant
for employment on behalf of himself, herself, or others of any rights
afforded him or her.
(b) Any employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated against in
the terms and conditions of his or her employment because the
employee engaged in any conduct delineated in this chapter, including
the conduct described in subdivision (k) of Section 96, and Chapter
5 (commencing with Section 1101) of Part 3 of Division 2, or because
the employee has made a bona fide complaint or claim to the division
pursuant to this part, or because the employee has initiated any
action or notice pursuant to Section 2699 shall be entitled to
reinstatement and reimbursement for lost wages and work benefits
caused by those acts of the employer. Any employer who willfully
refuses to hire, promote, or otherwise restore an employee or former
employee who has been determined to be eligible for rehiring or
promotion by a grievance procedure, arbitration, or hearing
authorized by law, is guilty of a misdemeanor.
(c) (1) Any applicant for employment who is refused employment,
who is not selected for a training program leading to employment, or
who in any other manner is discriminated against in the terms and
conditions of any offer of employment because the applicant engaged
in any conduct delineated in this chapter, including the conduct
described in subdivision (k) of Section 96, and Chapter 5 (commencing
with Section 1101) of Part 3 of Division 2, or because the applicant
has made a bona fide complaint or claim to the division pursuant to
this part, or because the employee has initiated any action or notice
pursuant to Section 2699 shall be entitled to employment and
reimbursement for lost wages and work benefits caused by the acts of
the prospective employer.
(2) This
subdivision shall not be construed to invalidate any collective
bargaining agreement that requires an applicant for a position that
is subject to the collective bargaining agreement to sign a contract
that protects either or both of the following as specified in
subparagraphs (A) and (B), nor shall this subdivision be construed to
invalidate any employer requirement of an applicant for a position
that is not subject to a collective bargaining agreement to sign an
employment contract that protects either or both of the following:
(A) An employer against any conduct that is actually in direct
conflict with the essential enterprise-related interests of the
employer and where breach of that contract would actually constitute
a material and substantial disruption of the employer's operation.
(B) A firefighter against any disease that is presumed to arise in
the course and scope of employment, by limiting his or her
consumption of tobacco products on and off the job.
(d) The provisions of this section creating new actions or
remedies that are effective on January 1, 2002, to employees or
applicants for employment do not apply to any state or local law
enforcement agency, any religious association or corporation
specified in subdivision (d) of Section 12926 of the Government Code,
except as provided in Section 12926.2 of the Government Code, or any
person described in Section 1070 of the Evidence Code.
SEC. 141. Section 2699.5 of the Labor Code is amended to read:
2699.5.
The provisions of subdivision (a) of Section 2699.3 shall apply to
any alleged violation of the following provisions: subdivision (k)
of Section 96, Section 98.6, 201, 201.5, 201.7, 202, 203, 203.1,
203.5, 204, 204a, 204b, 204.1, 204.2, 205, 205.5, 206, 206.5, 208,
209, or 212, subdivision (d) of Section 213, Section 221, 222, 222.5,
223, or 224, subdivision (a) of Section 226, Section 226.7, 227,
227.3, 230, 230.1, 230.2, 230.3, 230.4, 230.7, 230.8, or 231,
subdivision (c) of Section 232, subdivision (c) of Section 232.5,
Section 233, 234, 351, 353, or 403, subdivision (b) of Section 404,
Section 432.2, 432.5, 432.7, 435, 450, 510, 511, 512, 513, 551, 552,
601, 602, 603, 604, 750, 751.8, 800, 850, 851, 851.5, 852, 921, 922,
923, 970, 973, 976, 1021, 1021.5, 1025, 1026, 1101, 1102, 1102.5, or
1153, subdivision (c) or (d) of Section 1174, Section 1194, 1197,
1197.1, 1197.5, or 1198, subdivision (b) of Section 1198.3, Section
1199, 1199.5, 1290, 1292, 1293, 1293.1, 1294, 1294.1, 1294.5, 1296,
1297, 1298, 1301, 1308, 1308.1, 1308.7, 1309, 1309.5, 1391, 1391.1,
1391.2, 1392, 1683, or 1695, subdivision (a) of Section 1695.5,
Section 1695.55, 1695.6, 1695.7, 1695.8, 1695.9, 1696, 1696.5,
1696.6, 1697.1, 1700.25, 1700.26, 1700.31, 1700.32, 1700.40, or
1700.47, paragraph (1), (2), or (3) of subdivision (a) of or
subdivision (e) of Section 1701.4, subdivision (a) of Section 1701.5,
Section 1701.8, 1701.10, 1701.12, 1735, 1771, 1774, 1776, 1777.5,
1811, 1815, 2651, or 2673, subdivision (a) of Section 2673.1, Section
2695.2, 2800, 2801, 2802, 2806, or 2810, subdivision (b) of Section
2929, or Section 3095, 6310, 6311, or 6399.7.
SEC. 142. Section 3099.3 of the Labor Code is amended to read:
3099.3.
The Division of Apprenticeship Standards shall do all of the
following:
(a) Make information about electrician certification available in
non-English languages spoken by a substantial number of construction
workers, as defined in Section 7296.2 of the Government Code.
(b) Provide for the administration of certification tests in
Spanish and, to the extent practicable, other non-English languages
spoken by a substantial number of applicants, as defined in Section
7296.2 of the Government Code, except insofar as the ability to
understand warning signs, instructions, and certain other information
in English is necessary for safety reasons.
(c) Ensure, in conjunction with the California Apprenticeship
Council, that by no later than January 1, 2003, all electrician
apprenticeship programs approved under this chapter that impose
minimum formal education requirements as a condition of entry provide
for reasonable alternative means of satisfying those requirements.
(d) Ensure, in conjunction with the California Apprenticeship
Council, that by no later than January 1, 2003, all electrician
apprenticeship programs approved under this chapter have adopted
reasonable procedures for granting credit toward a term of
apprenticeship for other vocational training and on-the-job training
experience.
(e) Report to the Legislature, prior to the deadline for
individuals to become certified, on the status of electrician
certification, including all of the following:
(1) The number of persons who have been certified pursuant to
Section 3099.
(2) The number of persons enrolled in electrician apprenticeship
programs.
(3) The number of persons who have registered pursuant to Section
3099.4.
(4) The estimated number of individuals performing work for Class
C-10 electrical contractors for which certification will be required
after the deadline for certification, who have not yet been certified
and are not enrolled in apprenticeship programs or registered
pursuant to Section 3099.4.
(5) Whether enforcement of the deadline for certification will
cause a shortage of electricians in California.
(6) Whether persons who wish to become certified electricians will
have an adequate opportunity to pass the certification exam, to
register pursuant to Section 3099.4, or to enroll in an
apprenticeship program prior to the deadline for certification.
SEC. 143. Section 3600.1 of the Labor Code is amended to read:
3600.1.
(a) Whenever any firefighter of the state, as defined in Section
19886 of the Government Code, is injured, dies, or is disabled from
performing his or her duties as a firefighter by reason of his or her
proceeding to or engaging in a fire-suppression or rescue operation,
or the protection or preservation of life or property, anywhere in
this state, including the jurisdiction in which he or she is
employed, but is not at the time acting under the immediate direction
of his or her employer, he or she or his or her dependents, as the
case may be, shall be accorded by his or her employer all of the same
benefits of this division that he, she, or they would have received
had that firefighter been acting under the immediate direction of his
or her employer. Any injury, disability, or death incurred under the
circumstances described in this section shall be deemed to have
arisen out of, and been sustained in, the course of employment for
purposes of workers' compensation and all other benefits.
(b) Nothing in this section shall be deemed to do either of the
following:
(1) Require the extension of any benefits to a firefighter who, at
the time of his or her injury, death, or disability, is acting for
compensation from one other than the state.
(2) Require the extension of any benefits to a firefighter
employed by the state where by departmental regulation, whether now
in force or hereafter enacted or promulgated, the activity giving
rise to the injury, disability, or death is expressly prohibited.
(c) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5 of the Government Code, the memorandum of
understanding shall be controlling without further legislative
action, except that if the provisions of a memorandum of
understanding require the expenditure of funds, the provisions shall
not become effective unless approved by the Legislature in the annual
Budget Act.
SEC. 144. Section 4658.5 of the Labor Code is amended to read:
4658.5.
(a) Except as provided in Section 4658.6, if the injury causes
permanent partial disability and the injured employee does not return
to work for the employer within 60 days of the termination of
temporary disability, the injured employee shall be eligible for a
supplemental job displacement benefit in the form of a
nontransferable voucher for education-related retraining or skill
enhancement, or both, at state-approved or accredited schools, as
follows:
(1) Up to four thousand dollars ($4,000) for permanent partial
disability awards of less than 15 percent.
(2) Up to six thousand dollars ($6,000) for permanent partial
disability awards between 15 and 25 percent.
(3) Up to eight thousand dollars ($8,000) for permanent partial
disability awards between 26 and 49 percent.
(4) Up to ten thousand dollars ($10,000) for permanent partial
disability awards between 50 and 99 percent.
(b) The voucher may be used for payment of tuition, fees, books,
and other expenses required by the school for retraining or skill
enhancement. No more than 10 percent of the voucher moneys may be
used for vocational or return to work counseling. The administrative
director shall adopt regulations governing the form of payment,
direct reimbursement to the injured employee upon presentation to the
employer of appropriate documentation and receipts, and any other
matters necessary to the proper administration of the supplemental
job displacement benefit.
(c) Within 10 days of the last payment of temporary disability,
the employer shall provide to the employee, in the form and manner
prescribed by the administrative director, information that provides
notice of rights under this section. This notice shall be sent by
certified mail.
(d) This section shall apply to injuries occurring on or after
January 1, 2004.
SEC. 145. Section 179 of the Military and Veterans Code is amended
to read:
179.
(a) The Adjutant General shall establish a California State
Military Museum and Resource Center as a repository for military
artifacts, memorabilia, equipment, documents, and other items
relating to the history of the California National Guard, in
accordance with applicable regulations of the United States Army
governing Army museum activities. The museum shall consist of the
facility described in the Proclamation of the Governor dated May 11,
1994, and any branches as may currently exist or may from time to
time be created throughout the state. Each facility shall be deemed
to be an armory within the meaning of Section 430.
(b) The Adjutant General shall enter into an operating agreement
with the California Military Museum Foundation, formerly known as the
California National Guard Historical Society, an existing California
nonprofit public benefit corporation that is tax exempt under
Section 501(c)(3) of the Internal Revenue Code. Under the operating
agreement with the Adjutant General, the foundation shall operate the
California State Military Museum and Resource Center in coordination
with the California State Military Reserve's California Center for
Military History. The foundation shall develop, administer,
interpret, and manage museum historical programs and related public
services, and acquire and manage funding for museum programs and
services.
(c) Volunteers, docents, members of the California State Military
Reserve, or others working with or for the California Military Museum
Foundation for purposes consistent with the mission of the
organization, shall be considered volunteers under Sections 3118 and
3119 of the Government Code and Section 3363.5 of the Labor Code.
(d) The Board of Trustees of the California Military Museum
Foundation shall include the Adjutant General, or the Assistant
Adjutant General, or any Deputy Adjutant General designated by the
Adjutant General, as an ex officio voting member of the board. The
board of trustees of the foundation shall be the governing authority
for operations funded through moneys received by the foundation. The
board of trustees of the foundation shall submit an audit report
annually to the Adjutant General. The board of trustees of the
foundation shall submit copies of annual audit reports to the
Director of Finance, the Chair of the Joint Legislative Audit
Committee, and the Chair of the Joint Legislative Budget Committee.
No funds raised or assets acquired by the foundation shall be used
for purposes inconsistent with support of the museum.
(e) The Board of Trustees of the California Military Museum
Foundation shall, no later than January 10 of each year, submit a
business plan for the following fiscal year to the Adjutant General,
the Director of Finance, and the Chair of the Joint Legislative
Budget Committee for review and comment. The board of trustees shall
also submit, not less than 30 days prior to adoption, any proposed
formal amendments to the business plan to the Adjutant General, the
Director of Finance, and the Chair of the Joint Legislative Budget
Committee for review and comment.
(f) (1) The Adjutant General or the California State Military
Museum Foundation may solicit, receive, and administer donations of
funds or property for the support and improvement of the museum. Any
grants or donations received may be expended or used for museum
purposes.
(2) Property of historical military significance, not including
real property, that is owned by the state and is determined by the
Adjutant General to be in excess of the needs of the Military
Department, shall be transferred to the museum.
(3) Property determined by the California State Military Museum
Foundation to be in excess of the needs of the museum may be sold,
donated, exchanged, or otherwise disposed of, at its discretion, in a
manner appropriate to the historical and intrinsic value of the
property, and the benefits from the disposition shall inure to the
museum. This paragraph does not apply to property held in trust for
the Controller pursuant to Section 1563 of the Code of Civil
Procedure.
(g) The Adjutant General or the California State Military Museum
Foundation may solicit and receive firearms and other weaponry
confiscated by or otherwise in the possession of law enforcement
officers as donations to the museum if he or she deems them to be of
historical or military interest.
(h) The Adjutant General shall, in cooperation with the California
State Military Museum Foundation, conduct a study of the future
needs of the National Guard to preserve, display, and interpret
artifacts, documents, photographs, films, literature, and other items
relating to the history of the military in California.
(i) (1) The California State Military Museum Foundation may enter
into agreements with other military museums in California, including,
but not limited to, the Legion of Valor Museum, to loan property
that is not real property and that is under the direct control of the
foundation.
(2) The California State Military Museum may enter into agreements
with other military museums in California to loan property held in
trust for the Controller pursuant to Section 1563 of the Code of
Civil Procedure.
SEC. 146. Section 972.1 of the Military and Veterans Code, as
amended by Section 2 of Chapter 138 of the Statutes of 2004, is
amended to read:
972.1.
(a) The sum of five hundred thousand dollars ($500,000) is hereby
appropriated from the General Fund to the Department of Veterans
Affairs for allocation, during the 1989-90 fiscal year, for purposes
of funding the activities of county veteran service officers pursuant
to this section. Funds for allocation in future years shall be as
provided in the annual Budget Act.
(b) Funds shall be disbursed each fiscal year on a pro rata basis
to counties that have established and maintain a county veteran
service officer in accordance with the staffing level and workload of
each county veteran service officer under a formula based upon
performance that shall be developed by the Department of Veterans
Affairs for these purposes, and that shall allocate county funds in
any fiscal year for county veteran service officers in an amount not
less than the amount allocated in the 1988-89 fiscal year.
(c) The department shall annually determine the amount of new or
increased monetary benefits paid to eligible veterans by the federal
government attributable to the assistance of county veteran service
officers. The department shall on or before January 1, prepare and
transmit its determination for the preceding fiscal year to the
Department of Finance and the Legislature. The Department of Finance
shall review the department's determination in time to use the
information in the annual Budget Act for the budget of the department
for the next fiscal year.
(d) (1) The Legislature finds and declares that 50 percent of the
amount annually budgeted for county veteran service officers is
approximately five million dollars ($5,000,000). The Legislature
further finds and declares that it is an efficient and reasonable use
of state funds to increase the annual budget for county veteran
service officers in an amount not to exceed five million dollars
($5,000,000) if it is justified by the monetary benefits to the state'
s veterans attributable to the effort of these officers.
(2) It is the intent of the Legislature, after reviewing the
department's determination in subdivision (c), to consider an
increase in the annual budget for county veteran service officers in
an amount not to exceed five million dollars ($5,000,000), if the
monetary benefits to the state's veterans attributable to the
assistance of county veteran service officers justify that increase
in the budget.
(e) This section shall become operative January 1, 2011.
SEC. 147. Section 985 of the Military and Veterans Code is amended
to read:
985.
As used in this article:
(a) "Farm" means a tract of land, which, in the opinion of the
department, is capable of producing sufficiently to provide a living
for the purchaser and the purchaser's dependents.
(b) "Home" means any of the following:
(1) A parcel of real estate upon which there is a dwelling house
or other buildings that will, in the opinion of the department, suit
the needs of the purchaser and the purchaser's dependents as a place
of abode.
(2) Condominium, as defined in subdivision (h).
(3) Mobilehome, as defined in subdivision (k).
(4) Cooperative housing, as defined in subdivision (m).
(c) "Purchaser" means a veteran or any person who has entered into
a contract of purchase of a farm or home from the department.
(d) "Purchase price" means the price which the department pays for
any farm or home.
(e) "Selling price" means the price for which the department sells
any farm or home.
(f) "Initial payment" means the first payment to be made by a
purchaser to the department for a farm or home.
(g) "Progress payment plan" means payment by the department for
improvements on real property in installments as work progresses.
(h) "Condominium" means an estate in real property consisting of
an undivided interest in common in a portion of a parcel of real
property together with a separate interest in space in a residential
building on the real property, such as an apartment, which, in the
opinion of the department, suits the needs of the purchaser and the
purchaser's dependents as a place of abode. A condominium may
include, in addition, a separate interest in other portions of the
real property.
(i) "Effective rate of interest" means the average interest rate
of the interest on the unpaid balance due on a participation contract
to which the interest of the department is subject and the interest
rate on the unpaid balance of the purchase price, as determined by
the department.
(j) "Participation contract" means an obligation secured by a deed
of trust or mortgage, or other security interest established
pursuant to regulations of the department.
(k) "Mobilehome" means either a parcel of real estate, or an
undivided interest in common in a portion of a parcel of real
property, on which is situated a mobilehome that will, in the opinion
of the department, suit the needs of the purchaser and the purchaser'
s dependents as a place of abode and meets all requirements of local
governmental jurisdictions.
(l) "Immediate family" means the spouse of a purchaser, the
natural or adopted dependent children of the purchaser, and the
parents of the purchaser if they are dependent on the purchaser for
50 percent or more of their support.
(m) "Cooperative housing corporation" means a real estate
development in which membership in the corporation, by stock
ownership, is coupled with the exclusive right to possess a portion
of the real property.
SEC. 148. Section 502.01 of the Penal Code is amended to read:
502.01.
(a) As used in this section:
(1) "Property subject to forfeiture" means any property of the
defendant that is illegal telecommunications equipment as defined in
subdivision (g) of Section 502.8, or a computer, computer system, or
computer network, and any software or data residing thereon, if the
telecommunications device, computer, computer system, or computer
network was used in committing a violation of, or conspiracy to
commit a violation of, Section 288, 288.2, 311.1, 311.2, 311.3,
311.4, 311.5, 311.10, 311.11, 422, 470, 470a, 472, 475, 476, 480,
483.5, or 484g, or subdivision (a), (b), or (d) of Section 484e,
subdivision (a) of Section 484f, subdivision (b) or (c) of Section
484i, or subdivision (c) of Section 502, or Section 502.7, 502.8,
529, 529a, 530.5, 537e, 593d, 593e, or 646.9, or was used as a
repository for the storage of software or data obtained in violation
of those provisions. Forfeiture shall not be available for any
property used solely in the commission of an infraction. If the
defendant is a minor, it also includes property of the parent or
guardian of the defendant.
(2) "Sentencing court" means the court sentencing a person found
guilty of violating or conspiring to commit a violation of Section
288, 288.2, 311.1, 311.2, 311.3, 311.4, 311.5, 311.10, 311.11, 422,
470, 470a, 472, 475, 476, 480, 483.5, or 484g, or subdivision (a),
(b), or (d) of Section 484e, subdivision (a) of Section 484f,
subdivision (b) or (c) of Section 484i, or subdivision (c) of Section
502, or Section 502.7, 502.8, 529, 529a, 530.5, 537e, 593d, 593e, or
646.9, or, in the case of a minor, found to be a person described in
Section 602 of the Welfare and Institutions Code because of a
violation of those provisions, the juvenile court.
(3) "Interest" means any property interest in the property subject
to forfeiture.
(4) "Security interest" means an interest that is a lien,
mortgage, security interest, or interest under a conditional sales
contract.
(5) "Value" has the following meanings:
(A) When counterfeit items of computer software are manufactured
or possessed for sale, the "value" of those items shall be equivalent
to the retail price or fair market price of the true items that are
counterfeited.
(B) When counterfeited but unassembled components of computer
software packages are recovered, including, but not limited to,
counterfeited computer diskettes, instruction manuals, or licensing
envelopes, the "value" of those components of computer software
packages shall be equivalent to the retail price or fair market price
of the number of completed computer software packages that could
have been made from those components.
(b) The sentencing court shall, upon petition by the prosecuting
attorney, at any time following sentencing, or by agreement of all
parties, at the time of sentencing, conduct a hearing to determine
whether any property or property interest is subject to forfeiture
under this section. At the forfeiture hearing, the prosecuting
attorney shall have the burden of establishing, by a preponderance of
the evidence, that the property or property interests are subject to
forfeiture. The prosecuting attorney may retain seized property that
may be subject to forfeiture until the sentencing hearing.
(c) Prior to the commencement of a forfeiture proceeding, the law
enforcement agency seizing the property subject to forfeiture shall
make an investigation as to any person other than the defendant who
may have an interest in it. At least 30 days before the hearing to
determine whether the property should be forfeited, the prosecuting
agency shall send notice of the hearing to any person who may have an
interest in the property that arose before the seizure.
A person claiming an interest in the property shall file a motion
for the redemption of that interest at least 10 days before the
hearing on forfeiture, and shall send a copy of the motion to the
prosecuting agency and to the probation department.
If a motion to redeem an interest has been filed, the sentencing
court shall hold a hearing to identify all persons who possess valid
interests in the property. No person shall hold a valid interest in
the property if, by a preponderance of the evidence, the prosecuting
agency shows that the person knew or should have known that the
property was being used in violation of, or conspiracy to commit a
violation of, Section 288, 288.2, 311.1, 311.2, 311.3, 311.4, 311.5,
311.10, 311.11, 470, 470a, 472, 475, 476, 480, 483.5, or 484g, or
subdivision (a), (b), or (d) of Section 484e, subdivision (a) of
Section 484f, subdivision (b) or (c) of Section 484i, or subdivision
(c) of Section 502, or Section 502.7, 502.8, 529, 529a, 530.5, 537e,
593d, 593e, or 646.9, and that the person did not take reasonable
steps to prevent that use, or if the interest is a security interest,
the person knew or should have known at the time that the security
interest was created that the property would be used for a violation.
(d) If the sentencing court finds that a person holds a valid
interest in the property, the following provisions shall apply:
(1) The court shall determine the value of the property.
(2) The court shall determine the value of each valid interest in
the property.
(3) If the value of the property is greater than the value of the
interest, the holder of the interest shall be entitled to ownership
of the property upon paying the court the difference between the
value of the property and the value of the valid interest.
If the holder of the interest declines to pay the amount
determined under paragraph (2), the court may order the property sold
and designate the prosecutor or any other agency to sell the
property. The designated agency shall be entitled to seize the
property and the holder of the interest shall forward any
documentation underlying the interest, including any ownership
certificates for that property, to the designated agency. The
designated agency shall sell the property and pay the owner of the
interest the proceeds, up to the value of that interest.
(4)
If the value of the property is less than the value of the interest,
the designated agency shall sell the property and pay the owner of
the interest the proceeds, up to the value of that interest.
(e) If the defendant was a minor at the time of the offense, this
subdivision shall apply to property subject to forfeiture that is the
property of the parent or guardian of the minor.
(1) The prosecuting agency shall notify the parent or guardian of
the forfeiture hearing at least 30 days before the date set for the
hearing.
(2) The computer or telecommunications device shall not be subject
to forfeiture if the parent or guardian files a signed statement
with the court at least 10 days before the date set for the hearing
that the minor shall not have access to any computer or
telecommunications device owned by the parent or guardian for two
years after the date on which the minor is sentenced.
(3) If the minor is convicted of a violation of Section 288,
288.2, 311.1, 311.2, 311.3, 311.4, 311.5, 311.10, 311.11, 470, 470a,
472, 476, or 480, or subdivision (b) or (d) of Section 484e,
subdivision (a) of Section 484f, subdivision (b) of Section 484i, or
subdivision (c) of Section 502, or Section 502.7, 502.8, 529, 529a,
or 530.5, within two years after the date on which the minor is
sentenced, and the violation involves a computer or
telecommunications device owned by the parent or guardian, the
original property subject to forfeiture, and the property involved in
the new offense, shall be subject to forfeiture notwithstanding
paragraph (2).
(4) Notwithstanding paragraph (1), (2), or (3), or any other
provision of this chapter, if a minor's parent or guardian makes full
restitution to the victim of a crime enumerated in this chapter in
an amount or manner determined by the court, the forfeiture
provisions of this chapter do not apply to the property of that
parent or guardian if the property was located in the family's
primary residence during the commission of the crime.
(f) Notwithstanding any other provision of this chapter, the court
may exercise its discretion to deny forfeiture where the court finds
that the convicted defendant, or minor adjudicated to come within
the jurisdiction of the juvenile court, is not likely to use the
property otherwise subject to forfeiture for future illegal acts.
(g) If the defendant is found to have the only valid interest in
the property subject to forfeiture, it shall be distributed as
follows:
(1) First, to the victim, if the victim elects to take the
property as full or partial restitution for injury, victim
expenditures, or compensatory damages, as defined in paragraph (1) of
subdivision (e) of Section 502. If the victim elects to receive the
property under this paragraph, the value of the property shall be
determined by the court and that amount shall be credited against the
restitution owed by the defendant. The victim shall not be penalized
for electing not to accept the forfeited property in lieu of full or
partial restitution.
(2) Second, at the discretion of the court, to one or more of the
following agencies or entities:
(A) The prosecuting agency.
(B) The public entity of which the prosecuting agency is a part.
(C) The public entity whose officers or employees conducted the
investigation resulting in forfeiture.
(D) Other state and local public entities, including school
districts.
(E) Nonprofit charitable organizations.
(h) If the property is to be sold, the court may designate the
prosecuting agency or any other agency to sell the property at
auction. The proceeds of the sale shall be distributed by the court
as follows:
(1) To the bona fide or innocent purchaser or encumbrancer,
conditional sales vendor, or mortgagee of the property up to the
amount of his or her interest in the property, if the court orders a
distribution to that person.
(2) The balance, if any, to be retained by the court, subject to
the provisions for distribution under subdivision (g).
SEC. 149. Section 679.05 of the Penal Code is amended to read:
679.05.
(a) A victim of domestic violence or abuse, as defined in Section
6203 or 6211 of the Family Code, or Section 13700 of this code, has
the right to have a domestic violence counselor and a support person
of the victim's choosing present at any interview by law enforcement
authorities, district attorneys, or defense attorneys. However, the
support person may be excluded from an interview by law enforcement
or the district attorney if the law enforcement authority or the
district attorney determines that the presence of that individual
would be detrimental to the purpose of the interview. As used in this
section, "domestic violence counselor" is defined in Section 1037.1
of the Evidence Code.
(b) (1) Prior to the commencement of the initial interview by law
enforcement authorities or the district attorney pertaining to any
criminal action arising out of a domestic violence incident, a victim
of domestic violence or abuse, as defined in Section 6203 or 6211 of
the Family Code, or Section 13700 of this code, shall be notified
orally or in writing by the attending law enforcement authority or
district attorney that the victim has the right to have a domestic
violence counselor and a support person of the victim's choosing
present at the interview or contact. This subdivision applies to
investigators and agents employed or retained by law enforcement or
the district attorney.
(2) At the time the victim is advised of his or her rights
pursuant to paragraph (1), the attending law enforcement authority or
district attorney shall also advise the victim of the right to have
a domestic violence counselor and a support person present at any
interview by the defense attorney or investigators or agents employed
by the defense attorney.
(c) An initial investigation by law enforcement to determine
whether a crime has been committed and the identity of the suspects
shall not constitute a law enforcement interview for purposes of this
section.
SEC. 150. Section 1203.4a of the Penal Code is amended to read:
1203.4a.
(a) Every defendant convicted of a misdemeanor and not granted
probation shall, at any time after the lapse of one year from the
date of pronouncement of judgment, if he or she has fully complied
with and performed the sentence of the court, is not then serving a
sentence for any offense and is not under charge of commission of any
crime and has, since the pronouncement of judgment, lived an honest
and upright life and has conformed to and obeyed the laws of the
land, be permitted by the court to withdraw his or her plea of guilty
or nolo contendere and enter a plea of not guilty; or if he or she
has been convicted after a plea of not guilty, the court shall set
aside the verdict of guilty; and in either case the court shall
thereupon dismiss the accusatory pleading against the defendant, who
shall thereafter be released from all penalties and disabilities
resulting from the offense of which he or she has been convicted,
except as provided in Section 12021.1 of this code or Section 13555
of the Vehicle Code. The defendant shall be informed of the
provisions of this section, either orally or in writing, at the time
he or she is sentenced. The defendant may make an application and
change of plea in person or by attorney, or by the probation officer
authorized in writing; provided, that in any subsequent prosecution
of the defendant for any other offense, the prior conviction may be
pleaded and proved and shall have the same effect as if relief had
not been granted pursuant to this section.
This subdivision applies to convictions which occurred before as
well as those occurring after, the effective date of this section.
(b) Subdivision (a) does not apply to any misdemeanor falling
within the provisions of subdivision (b) of Section 42001 of the
Vehicle Code, or to any infraction.
(c) A person who petitions for a dismissal of a charge under this
section may be required to reimburse the county and the court for the
cost of services rendered at a rate to be determined by the county
board of supervisors for the county and by the court for the court,
not to exceed sixty dollars ($60), and to reimburse any city for the
cost of services rendered at a rate to be determined by the city
council not to exceed sixty dollars ($60). Ability to make this
reimbursement shall be determined by the court using the standards
set forth in paragraph (2) of subdivision (g) of Section 987.8 and
shall not be a prerequisite to a person's eligibility under this
section. The court may order reimbursement in any case in which the
petitioner appears to have the ability to pay, without undue
hardship, all or any portion of the cost for services established
pursuant to this subdivision.
(d) Any determination of amount made by a court under this section
shall be valid only if either (1) made under procedures adopted by
the Judicial Council or (2) approved by the Judicial Council.
SEC. 151. Section 11055 of the Penal Code is amended to read:
11055.
(a) There is within the Department of Justice the Foreign
Prosecution and Law Enforcement Unit designated with the
responsibility for assisting local law enforcement agencies with
foreign prosecutions, child abduction recoveries and returns under
the Hague Convention on the Civil Aspects of International Child
Abduction, and law enforcement investigative matters. The unit is
also responsible for assisting local law enforcement in obtaining
information from foreign officials on foreign prosecution matters.
(b) The Foreign Prosecution and Law Enforcement Unit shall do all
of the following:
(1) For those countries having extraterritorial jurisdiction
allowing for the prosecution of their citizens for crimes committed
in California, the unit shall, upon request, provide informational
assistance to local law enforcement on foreign prosecution protocols
and provide technical assistance in preparing investigative materials
for forwarding and filing in international jurisdictions. The unit
shall provide information and assistance on the scope and uses of
foreign prosecution to California prosecutors and law enforcement
agencies. The unit shall be responsible for tracking foreign
prosecution cases presented by California law enforcement agencies.
The unit shall collect information on a statewide basis regarding
foreign prosecution cases for the primary purpose of analyzing the
information it collects and disseminating its conclusions to local
law enforcement agencies. Local law enforcement agencies shall retain
the authority to prepare and present foreign prosecution cases
without the assistance of the unit.
(2) The unit shall assist district attorneys in recovering
children from Mexico, and, where appropriate, other countries either
in court-ordered returns pursuant to the Hague Convention or
voluntary returns.
(3) The unit shall, upon request, assist local law enforcement
agencies and foreign law enforcement in formal requests under the
Mutual Legal Assistance Treaty. The unit shall, upon request, also
assist California law enforcement agencies and foreign officials in
informal requests for mutual legal assistance.
(4) The unit, under the direction of the Attorney General, shall
provide information to local law enforcement on sensitive diplomatic
issues.
SEC. 152. Section 12081 of the Penal Code is amended to read:
12081.
(a) Any person who is at least 21 years of age may apply for an
entertainment firearms permit from the Department of Justice that
authorizes the permitholder to possess firearms loaned to him or her
for use solely as a prop in a motion picture, television, video,
theatrical, or other entertainment production or event. Upon receipt
of an initial or renewal application submitted as specified in
subdivision (b), the department shall examine its records, records
the department is authorized to request from the State Department of
Mental Health pursuant to Section 8104 of the Welfare and
Institutions Code, and records of the National Instant Criminal
Background Check System as described in subsection (t) of Section 922
of Title 18 of the United States Code, in order to determine if the
applicant is prohibited from possessing or receiving firearms. The
department shall issue an entertainment firearms permit only if the
records indicate that the applicant is not prohibited from possessing
or receiving firearms pursuant to any federal, state, or local law.
(b) (1) Requests for entertainment firearms permits shall be made
on application forms prescribed by the Department of Justice that
require applicant information, including, but not limited to, the
following:
(A) Complete name.
(B) Residential and mailing address.
(C) Telephone number.
(D) Date of birth.
(E) Place of birth.
(F) Country of citizenship and, if other than United States, alien
number or admission number.
(G) Valid driver's license number or valid identification card
number issued by the California Department of Motor Vehicles.
(H) Social security number.
(I) Signature.
(2) All applications must be submitted with the appropriate fee as
specified in subdivision (c).
(3) An initial application for an entertainment firearms permit
shall require the submission of fingerprint images and related
information in a manner prescribed by the department, for the purpose
of obtaining information as to the existence and nature of a record
of state or federal level convictions and state or federal level
arrests for which the department establishes that the individual was
released on bail or on his or her own recognizance pending trial as
needed to determine whether the applicant may be issued the permit.
Requests for federal level criminal offender record information
received by the Department of Justice pursuant to this section shall
be forwarded by the department to the Federal Bureau of
Investigation.
(4) The Department of Justice shall review the criminal offender
record information specified in subdivision ( l) of Section 11105 for
entertainment firearms permit applicants.
(5) The Department of Justice shall review subsequent arrests,
pursuant to Section 11105.2, to determine the continuing validity of
the permit as specified in subdivision (d) for all entertainment
firearms permitholders.
(6) Any person who furnishes a fictitious name or address or
knowingly furnishes any incorrect information or knowingly omits any
information required to be provided on this application is guilty of
a misdemeanor.
(c) The Department of Justice shall recover the full costs of
administering the program by assessing the following application
fees:
(1) For the initial application: one hundred four dollars ($104).
Of this sum, fifty-six dollars ($56) shall be deposited into the
Fingerprint Fee Account, and forty-eight dollars ($48) shall be
deposited into the Dealer Record of Sale Account.
(2) For each annual renewal application: twenty-nine dollars
($29), which shall be deposited into the Dealer Record of Sale
Account.
(d) The implementation of subdivisions (a), (b), and (c) by the
department is exempt from the Administrative Procedure Act (Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code).
(e) The department shall annually review and shall adjust the fees
specified in subdivision (c), if necessary, to fully fund, but not
to exceed the actual costs of, the permit program provided for by
this section, including enforcement of the program.
(f) An entertainment firearms permit issued by the Department of
Justice shall be valid for one year from the date of issuance. If at
any time during that year the permitholder becomes prohibited from
possessing or receiving firearms pursuant to any federal, state, or
local law, his or her entertainment firearms permit shall be no
longer valid.
SEC. 153. Section 12553 of the Penal Code is amended to read:
12553.
(a) (1) Any person who changes, alters, removes, or obliterates
any coloration or markings that are required for by any applicable
state or federal law or regulation, for any imitation firearm, or
device described in subdivision (c) of Section 12555, in any way that
makes the imitation firearm or device look more like a firearm is
guilty of a misdemeanor.
(2) This subdivision shall not apply to a manufacturer, importer,
or distributor of imitation firearms or to the lawful use in
theatrical productions, including motion pictures, television, and
stage productions.
(b) Any manufacturer, importer, or distributor of imitation
firearms that fails to comply with any applicable federal law or
regulation governing the marking of a toy, look-alike or imitation
firearm as defined by federal law or regulation is guilty of a
misdemeanor.
SEC. 154. Section 6106.5 of the Public Contract Code is amended to
read:
6106.5.
(a) "State agency," as used in this section, means those
departments defined in Section 10106 of the Public Contract Code.
(b) "Contractor," as used in this section, means "firm,"
"architectural, landscape architectural, engineering, environmental,
and land surveying services," "construction project management," and
"environmental services" as defined in Section 4525 of the Government
Code.
(c) State agencies shall include a provision in solicitations and
in contracts, if the estimated amount to be retained exceeds ten
thousand dollars ($10,000), and the retention continues for a period
of 60 days beyond the completion of phased services, to permit, upon
written request and the expense of the contractor, the payment of
retentions earned directly to a state- or federally chartered bank in
this state, as the escrow agent. The contractor may direct the
investment of the payments into securities, pursuant to subdivision
(d), and the contractor shall receive the interest earned on the
investments. Upon satisfactory completion of the contract, the
contractor shall receive from the escrow agent all securities,
interest, and payments received by the escrow agent from the owner,
pursuant to the terms of this section. State agencies, relative to
contracts entered into prior to the enactment of this section, upon
written request of the contractor, and subject to the approval of the
state agency, may utilize the provisions of this section.
(d) Securities eligible for investment under this section shall
include those listed in Section 16430 of the Government Code,
interest-bearing demand deposit accounts, or any other investment
mutually agreed to by the contractor and the state agency.
(e) (1) Any contractor who elects to receive interest on moneys
withheld in retention by a state agency shall, at the request of any
subcontractor, make that option available to the subcontractor
regarding any moneys withheld in retention by the contractor from the
subcontractor. If the contractor elects to receive interest on any
moneys withheld in retention by a state agency, then the
subcontractor shall receive the identical rate of interest received
by the contractor on any retention moneys withheld from the
subcontractor by the contractor, less any actual pro rata costs
associated with administering and calculating that interest. In the
event that the interest rate is a fluctuating rate, the rate for the
subcontractor shall be determined by calculating the interest rate
paid during the time that retentions were withheld from the
subcontractor. If the contractor elects to substitute securities in
lieu of retention, then, by mutual consent of the contractor and
subcontractor, the subcontractor may substitute securities in
exchange for the release of moneys held in retention by the
contractor.
(2) This subdivision shall apply only to those subcontractors
performing more than 5 percent of the contractor's total fee.
(3) No contractor shall require any subcontractor to waive any
provision of this section.
(f) An escrow agreement used pursuant to this section shall be
null, void, and unenforceable unless it is substantially similar to
the following form:
ESCROW AGREEMENT FOR SECURITY DEPOSITS
This Escrow Agreement is made and entered into
by and between
_________________________________________________
whose address is ________________________________
hereinafter called "owner," ___________________
whose address is ________________________________
hereinafter called "contractor," and __________
whose address is ________________________________
hereinafter called "escrow agent."
(1) Pursuant to Section 6106.5 of the Public Contract Code of the
State of California, upon written request of the contractor, the
owner shall make payments of retention earnings required to be
withheld by the owner pursuant to the professional consulting
services agreement entered into between the owner and contractor for
____ in the amount of ____ dated ____ hereafter referred to as the
"contract."
(2) When the owner makes payment of retentions earned directly to
the escrow agent, the escrow agent shall hold them for the benefit of
the contractor until such time as the escrow created under this
contract is terminated. The contractor may direct the investment of
the payments into securities pursuant to Section 6106.5(d) of the
Public Contract Code. All terms and conditions of this agreement and
the rights and responsibilities of the parties shall be equally
applicable and binding when the owner pays the escrow agent directly.
(3) The contractor shall be responsible for paying all fees for
the expenses incurred by the escrow agent in administering the escrow
account. These expenses and payment terms shall be determined by the
contractor and escrow agent.
(4) The contractor shall have the right to withdraw all or any
part of the principal or interest in the escrow account only by
written notice to the escrow agent accompanied by written
authorization from the owner to the escrow agent that the owner
consents to the withdrawal of the amount sought to be withdrawn by
contractor.
(5) The owner shall have a right to draw upon the escrow account
in the event of default by the contractor. Upon seven days' written
notice to the escrow agent from the owner of the default, the escrow
agent shall immediately distribute the cash as instructed by the
owner.
(6) Upon receipt of written notification from the owner certifying
that the contract is final and complete, and that the contractor has
complied with all requirements and procedures applicable to the
contract, the escrow agent shall release to the contractor all
deposits and interest on deposits less escrow fees and charges of the
escrow account. The escrow shall be closed immediately upon
disbursement of all moneys on deposit and payments of fees and
charges.
(7) The escrow agent shall rely on the written notifications from
the owner and the contractor pursuant to Sections (1) to (6),
inclusive, of this agreement and the owner and contractor shall hold
the escrow agent harmless from the escrow agent's release,
conversion, and disbursement of the securities and interest as set
forth above.
(8) The names of the persons who are authorized to give written
notice or to receive written notice on behalf of the owner and on
behalf of the contractor in connection with the foregoing, and
exemplars of their respective signatures are as follows:
On behalf of the owner: On behalf of the
contractor:
______________________ ________________________
Title Title
________________________
______________________
Name
Name
______________________ ________________________
Address
Address
______________________ ________________________
On behalf of the escrow
agent:
______________________
Title
______________________
Name
______________________
Signature
______________________
Address
______________________
At the time the escrow account is opened, the owner and contractor
shall deliver to the escrow agent a fully executed counterpart of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by
their proper officers on the date first set forth above.
Owner Contractor
________________________ _________________________
Title Title
________________________ _________________________
Name Name
________________________ _________________________
Signature Signature
________________________ _________________________
SEC. 155. Section 6108 of the Public Contract Code is amended to
read:
6108.
(a) (1) Every contract entered into by any state agency for the
procurement or laundering of apparel, garments or corresponding
accessories, or the procurement of equipment, materials, or supplies,
other than procurement related to a public works contract, shall
require that a contractor certify that no apparel, garments or
corresponding accessories, equipment, materials, or supplies
furnished to the state pursuant to the contract have been laundered
or produced in whole or in part by sweatshop labor, forced labor,
convict labor, indentured labor under penal sanction, abusive forms
of child labor or exploitation of children in sweatshop labor, or
with the benefit of sweatshop labor, forced labor, convict labor,
indentured labor under penal sanction, abusive forms of child labor
or exploitation of children in sweatshop labor. The contractor shall
agree to comply with this provision of the contract.
(2) The contract shall specify that the contractor is required to
cooperate fully in providing reasonable access to the contractor's
records, documents, agents, employees, or premises if reasonably
required by authorized officials of the contracting agency, the
Department of Industrial Relations, or the Department of Justice
determine the contractor's compliance with the requirements under
paragraph (1).
(b) (1) Any contractor contracting with the state who knew or
should have known that the apparel, garments or corresponding
accessories, equipment, materials, or supplies furnished to the state
were laundered or produced in violation of the conditions specified
in subdivision (a) when entering into a contract pursuant to
subdivision (a), may, subject to subdivision (c), have any or all of
the following sanctions imposed:
(A) The contract under which the prohibited apparel,
garments or corresponding accessories, equipment, materials, or
supplies were laundered or provided may be voided at the option of
the state agency to which the equipment, materials, or supplies were
provided.
(B) The contractor may be assessed a penalty which shall be the
greater of one thousand dollars ($1,000) or an amount equaling 20
percent of the value of the apparel, garments or corresponding
accessories, equipment, materials, or supplies that the state agency
demonstrates were produced in violation of the conditions specified
in paragraph (1) of subdivision (a) and that were supplied to the
state agency under the contract.
(C) The contractor may be removed from the bidder's list for a
period not to exceed 360 days.
(2) Any moneys collected pursuant to this subdivision shall be
deposited into the General Fund.
(c) (1) When imposing the sanctions described in subdivision (b),
the contracting agency shall notify the contractor of the right to a
hearing, if requested, within 15 days of the date of the notice. The
hearing shall be before an administrative law judge of the Office of
Administrative Hearings in accordance with the procedures specified
in Chapter 5 (commencing with Section 11500) of Part 1 of Division 3
of Title 2 of the Government Code. The administrative law judge shall
take into consideration any measures the contractor has taken to
ensure compliance with this section, and may waive any or all of the
sanctions if it is determined that the contractor has acted in good
faith.
(2) The agency shall be assessed the cost of the administrative
hearing, unless the agency has prevailed in the hearing, in which
case the contractor shall be assessed the cost of the hearing.
(d) (1) Any state agency that investigates a complaint against a
contractor for violation of this section may limit its investigation
to evaluating the information provided by the person or entity
submitting the complaint and the information provided by the
contractor.
(2) Whenever a contracting officer of the contracting agency has
reason to believe that the contractor failed to comply with the
requirements under paragraph (1) of subdivision (a), the agency shall
refer the matter for investigation to the head of the agency and, as
the head of the agency determines appropriate, to either the
Director of Industrial Relations or the Department of Justice.
(e) (1) For purposes of this section, the term "forced labor"
shall have the same meaning as in Section 1307 of Title 19 of the
United States Code.
(2) "Abusive forms of child labor" means any of the following:
(A) All forms of slavery or practices similar to slavery, such as
the sale and trafficking of children, debt bondage, and serfdom and
forced or compulsory labor, including forced or compulsory
recruitment of children for use in armed conflict.
(B) The use, procuring, or offering of a child for prostitution,
for the production of pornography, or for pornographic performances.
(C) The use, procuring, or offering of a child for illicit
activities, in particular for the production and trafficking of
illicit drugs.
(D) All work or service exacted from or performed by any person
under the age of 18 either under the menace of any penalty for its
nonperformance and for which the worker does not offer oneself
voluntarily, or under a contract, the enforcement of which can be
accomplished by process or penalties.
(E) All work or service exacted from or performed by a child in
violation of all applicable laws of the country of manufacture
governing the minimum age of employment, compulsory education, and
occupational health and safety.
(3) "Exploitation of children in sweatshop labor" means all work
or service exacted from or performed by any person under the age of
18 years in violation of more than one law of the country of
manufacture governing wage and benefits, occupational health and
safety, nondiscrimination, and freedom of association.
(4) "Sweatshop labor" means all work or service extracted from or
performed by any person in violation of more than one law of the
country of manufacture governing wages, employee benefits,
occupational health, occupational safety, nondiscrimination, or
freedom of association.
(5) "Apparel, garments or corresponding accessories" includes, but
is not limited to, uniforms.
(6) Notwithstanding any other provision of this section, "forced
labor" and "convict labor" do not include work or services performed
by an inmate or a person employed by the Prison Industry Authority.
(7) "State agency" means any state agency in this state.
(f) (1) On or before February 1, 2004, the Department of
Industrial Relations shall establish a contractor responsibility
program, including a Sweatfree Code of Conduct, to be signed by all
bidders on state contracts and subcontracts. Any state agency
responsible for procurement shall ensure that the Sweatfree Code of
Conduct is available for public review at least 30 calendar days
between the dates of receipt and the final award of the contract. The
Sweatfree Code of Conduct shall list the requirements that
contractors are required to meet, as set forth in subdivision (g).
(2) Upon implementation in the manner described in paragraph (4),
every contract entered into by any state agency for the procurement
or laundering of apparel, garments or corresponding accessories, or
for the procurement of equipment or supplies, shall require that the
contractor certify in accordance with the Sweatfree Code of Conduct
that no apparel, garments or corresponding accessories, or equipment,
materials, or supplies, furnished to the state pursuant to the
contract have been laundered or produced, in whole or in part, by
sweatshop labor.
(3) The appropriate procurement agency, in consultation with the
Director of Industrial Relations, shall employ a phased and targeted
approach to implementing the Sweatfree Code of Conduct. Sweatfree
Code of Conduct procurement policies involving apparel, garments and
corresponding accessories may be permitted a phasein period of up to
one year for purposes of feasibility and providing sufficient notice
to contractors and the general public. The appropriate procurement
agency, in consultation with the Director of Industrial Relations,
shall target other procurement categories based on the magnitude of
verified sweatshop conditions and the feasibility of implementation,
and may set phasein goals and timetables of up to three years in
order to achieve compliance with the principles of the Sweatfree Code
of Conduct.
(4) In order to facilitate compliance with the Sweatfree Code of
Conduct, the Department of Industrial Relations shall explore
mechanisms employed by other governmental entities, including, but
not limited to, New Jersey Executive Order 20 of 2002, to ensure that
businesses that contract with this state are in compliance with this
section and any regulations or requirements promulgated in
conformance with this section, as amended by the act adding this
paragraph. The mechanisms explored may include, but not be limited
to, authorization to contract with a competent nonprofit organization
that is neither funded nor controlled, in whole or in part, by a
corporation that is engaged in the procurement or laundering of
apparel, garments, or corresponding accessories, or the procurement
of equipment, materials, or supplies. The Department of Industrial
Relations, in complying with this paragraph, shall also consider any
feasible and cost-effective monitoring measures that will encourage
compliance with the Sweatfree Code of Conduct.
(5) To ensure public access and confidence, the Department of
Industrial Relations shall ensure public awareness and access to
proposed contracts by postings on the Internet and through
communication to advocates for garment workers, unions, and other
interested parties. The appropriate agencies shall establish a
mechanism for soliciting and reviewing any information indicating
violations of the Sweatfree Code of Conduct by prospective or current
bidders, contractors, or subcontractors. The agencies shall make
their findings public when they reject allegations against bidding or
contracting parties.
(6) Contractors shall ensure that their subcontractors comply in
writing with the Sweatfree Code of Conduct, under penalty of perjury.
Contractors shall attach a copy of the Sweatfree Code of Conduct to
the certification required by subdivision (a).
(g) No state agency may enter into a contract with any contractor
unless the contractor meets the following requirements:
(1) Contractors and subcontractors in California shall comply with
all appropriate state laws concerning wages, workplace safety,
rights to association and assembly, and nondiscrimination standards,
as well as appropriate federal laws. Contractors based in other
states in the United States shall comply with all appropriate laws of
their states and appropriate federal laws. For contractors whose
locations for manufacture or assembly are outside the United States,
those contractors shall ensure that their subcontractors comply with
the appropriate laws of countries where the facilities are located.
(2) Contractors and subcontractors shall maintain a policy of not
terminating any employee except for just cause, and employees shall
have access to a mediator or to a mediation process to resolve
certain workplace disputes that are not regulated by the National
Labor Relations Board.
(3) Contractors and subcontractors shall ensure that workers are
paid, at a minimum, wages and benefits in compliance with applicable
local, state, and national laws of the jurisdiction in which the
labor, on behalf of the contractor or subcontractor, is performed.
Whenever a state agency expends funds for the procurement or
laundering of apparel, garments, or corresponding accessories, or the
procurement of equipment, materials, or supplies, other than
procurement related to a public works contract, the applicable labor
standards established by the local jurisdiction through the exercise
of either local police powers or local spending powers in which the
labor, in compliance with the contract or purchase order for which
the expenditure is made, is performed shall apply with regard to the
contract or purchase order for which the expenditure is made, unless
the applicable local standards are in conflict with, or are
explicitly preempted by, state law. A state agency may not require,
as a condition for the receipt of state funds or assistance, that a
local jurisdiction refrain from applying the labor standards that are
otherwise applicable to that local jurisdiction. The Department of
Industrial Relations may, without incurring additional expenses,
access information from any nonprofit organization, including, but
not limited to, the World Bank, that gathers and disseminates data
with respect to wages paid throughout the world, to allow the
Department of Industrial Relations to determine whether contractors
and subcontractors are compensating their employees at a level that
enables those employees to live above the applicable poverty level.
(4) All contractors and subcontractors shall comply with the
overtime laws and regulations of the country in which their employees
are working.
(5) All overtime hours shall be worked voluntarily. Workers shall
be compensated for overtime at either (A) the rate of compensation
for regular hours of work, or (B) as legally required in the country
of manufacture, whichever is greater.
(6) No person may be employed who is younger than the legal age
for children to work in the country in which the facility is located.
In no case may children under the age of 15 years be employed in the
manufacturing process. Where the age for completing compulsory
education is higher than the standard for the minimum age of
employment, the age for completing education shall apply to this
section.
(7) There may be no form of forced labor of any kind, including
slave labor, prison labor, indentured labor, or bonded labor,
including forced overtime hours.
(8) The work environment shall be safe and healthy and, at a
minimum, be in compliance with relevant local, state, and national
laws. If residential facilities are provided to workers, those
facilities shall be safe and healthy as well.
(9) There may be no discrimination in hiring, salary, benefits,
performance evaluation, discipline, promotion, retirement, or
dismissal on the basis of age, sex, pregnancy, maternity leave
status, marital status, race, nationality, country of origin, ethnic
origin, disability, sexual orientation, gender identity, religion, or
political opinion.
(10) No worker may be subjected to any physical, sexual,
psychological, or verbal harassment or abuse, including corporal
punishment, under any circumstances, including, but not limited to,
retaliation for exercising his or her right to free speech and
assembly.
(11) No worker may be forced to use contraceptives or take
pregnancy tests. No worker may be exposed to chemicals, including
glues and solvents, that endanger reproductive health.
(12) Contractors and bidders shall list the names and addresses of
each subcontractor to be utilized in the performance of the
contract, and list each manufacturing or other facility or operation
of the contractor or subcontractor for performance of the contract.
The list, which shall be maintained and updated to show any changes
in subcontractors during the term of the contract, shall provide
company names, owners or officers, addresses, telephone numbers,
e-mail addresses, and the nature of the business association.
(h) Any person who certifies as true any material matter pursuant
to this section that he or she knows to be false is guilty of a
misdemeanor.
(i) The provisions of this section, as amended by Chapter 711 of
the Statutes of 2003, shall be in addition to any other provisions
that authorize the prosecution and enforcement of local labor laws
and may not be interpreted to prohibit a local prosecutor from
bringing a criminal or civil action against an individual or business
that violates the provisions of this section.
SEC. 156. Section 10411 of the Public Contract Code is amended to
read:
10411.
(a) No retired, dismissed, separated, or formerly employed person
of any state agency or department employed under the state civil
service or otherwise appointed to serve in state government may enter
into a contract in which he or she engaged in any of the
negotiations, transactions, planning, arrangements, or any part of
the decisionmaking process relevant to the contract while employed in
any capacity by any state agency or department. The prohibition of
this subdivision shall apply to a person only during the two-year
period beginning on the date the person left state employment.
(b) For a period of 12 months following the date of his or her
retirement, dismissal, or separation from state service, no person
employed under state civil service or otherwise appointed to serve in
state government may enter into a contract with any state agency, if
he or she was employed by that state agency in a policymaking
position in the same general subject area as the proposed contract
within the 12-month period prior to his or her retirement, dismissal,
or separation. The prohibition of this subdivision shall not apply
to a contract requiring the person's services as an expert witness in
a civil case or to a contract for the continuation of an attorney's
services on a matter with which he or she was involved prior to
leaving state service.
SEC. 157. Section 5018.1 of the Public Resources Code is amended
to read:
5018.1.
(a) Notwithstanding any other provision of law, the Department of
Finance may delegate to the department the right to exercise the same
authority granted to the Division of the State Architect and the
Real Estate Services Division in the Department of General Services,
to plan, design, construct, and administer contracts and professional
services for legislatively approved capital outlay projects.
(b) Any right afforded to the department pursuant to subdivision
(a) to exercise project planning, design, construction, and
administration of contracts and professional services may be revoked,
in whole or in part, by the Department of Finance at any time prior
to January 1, 2009.
(c) This section shall remain in effect only until January 1,
2009, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2009, deletes or extends
that date.
SEC. 158. Section 14530.1 of the Public Resources Code is amended
to read:
14530.1.
There is hereby created within the department a recycling
financial analysis and policy development unit, to develop, analyze,
consolidate, and evaluate economic and policy proposals to carry out
the objectives of this division, including, but not limited to, all
of the following:
(a) Evaluate the solvency of the fund on an ongoing basis in order
to make recommendations and report to the Legislature.
(b) Identify the fiscal impacts of proposed recycling programs, or
changes to existing recycling programs.
(c) Assess the economic impacts of recycling proposals and
programs on the state's citizens and businesses, including the impact
of adding new container types into existing law.
(d) Develop recommendations to better integrate the various
recycling alternatives available from state government, local
government, and private industry with the objective of reducing
recycling costs to citizens and businesses and meeting the 80-percent
recycling goal established by this division.
SEC. 159. Section 14539 of the Public Resources Code is amended to
read:
14539.
(a) The department shall certify processors pursuant to this
section. The director shall adopt, by regulation, requirements and
standards for certification. The regulations shall require, but shall
not be limited to requiring, that all of the following conditions be
met for certification:
(1) The processor demonstrates to the satisfaction of the
department that the processor will operate in accordance with this
division.
(2) If one or more certified entities have operated at the same
location within the past five years, the operations at the location
of the processor exhibit, to the satisfaction of the department, a
pattern of operation in compliance with the requirements of this
division and regulations adopted pursuant to this division.
(3) The processor notifies the department promptly of any material
change in the nature of the processor's operations that conflicts
with the information submitted in the operator's application for
certification.
(b) A certified processor shall comply with all of the following
requirements for operation:
(1) The processor shall not pay a refund value for, or receive a
refund value from the department for, any food or drink packaging
material or any beverage container or other product that does not
have a refund value established pursuant to Section 14560.
(2) The processor shall take those actions that satisfy the
department to prevent the payment of a refund value for any food or
drink packaging material or any beverage container or other product
that does not have a refund value established pursuant to Section
14560.
(3) Unless exempted pursuant to subdivision (b) of Section 14572,
the processor shall accept, and pay at least the refund value for,
all empty beverage containers, regardless of type, for which the
processor is certified.
(4) A processor shall not pay any refund values, processing
payments, or administrative fees to a noncertified recycler. A
processor may pay refund values, processing payments, or
administrative fees to any entity that is identified by the
department on its list of certified recycling centers.
(5) A processor shall not pay any refund values, processing
payments, or administrative fees on empty beverage containers or
other containers that the processor knew, or should have known, were
coming into the state from out of the state.
(6) A processor shall not claim refund values, processing
payments, or administrative fees on empty beverage containers that
the processor knew, or should have known, were received from
noncertified recyclers or on beverage containers that the processor
knew, or should have known, come from out of the state. A processor
may claim refund values, processing payments, or administrative fees
on any empty beverage container that does not come from out of the
state and that is received from any entity that is identified by the
department on its list of certified recycling centers.
(7) A processor shall take the actions necessary and approved by
the department to cancel containers to render them unfit for
redemption.
(8) A processor shall prepare or maintain the following documents
involving empty beverage containers, as specified by the department
by regulation:
(A) Shipping reports that are required to be prepared by the
processor or that are required to be obtained from recycling centers.
(B) Processor invoice reports.
(C) Cancellation verification documents.
(D) Documents authorizing recycling centers to cancel empty
beverage containers.
(E) Processor-to-processor transaction receipts.
(F) Rejected container receipts on materials subject to this
division.
(G) Receipts for transactions with beverage manufacturers on
materials subject to this division.
(H) Receipts for transactions with distributors on materials
subject to this division.
(I) Weight tickets.
(9) In addition to the requirements of paragraph (7), a processor
shall cooperate with the department and make available its records of
scrap transactions when the review of these records is necessary for
an audit or investigation by the department.
(c) The department may recover, in restitution pursuant to
paragraph (5) of subdivision (c) of Section 14591.2, any payments
made by the department to the processor pursuant to Section 14573
that are based on the documents specified in paragraph (8), that are
not prepared or maintained in compliance with the department's
regulations, and that do not allow the department to verify claims
for program payments.
SEC. 160. Section 14551 of the Public Resources Code is amended to
read:
14551.
(a) The department shall establish reporting periods for the
reporting of redemption rates and recycling rates. Each reporting
period shall be six months. The department shall determine all of the
following for each reporting period and shall issue a report on its
determinations, within 130 days of the end of each reporting period:
(1) Sales of beverages in aluminum beverage containers, bimetal
beverage containers, glass beverage containers, plastic beverage
containers, and other beverage containers in this state, including
refillable beverage containers.
(2) Returns for recycling, and returns not for recycling, of empty
aluminum beverage containers, bimetal beverage containers, glass
beverage containers, plastic beverage containers, and other beverage
containers in this state, including refillable beverage containers
returned to distributors pursuant to Section 14572.5. These numbers
shall be calculated using the average current weights of beverage
containers, as determined and reported by the department. To these
numbers shall be added and separately reported the following, if
greater than, or equal to, zero:
(A) All empty postfilled aluminum, glass, and plastic food or
drink packaging materials sold in the state, returned for recycling,
and reported by weight to the department which do not have a refund
value less the number specified in subparagraph (B).
(B) The number of beverage containers which comprise the first
five percentage points of the redemption rate without including the
empty postfilled aluminum, glass, and plastic food or drink packaging
materials sold in the state, returned for recycling and reported by
weight to the department which do not have a refund value.
(3) An aluminum beverage container redemption rate, the numerator
of which shall be the number of empty aluminum beverage containers
returned, including refillable aluminum beverage containers and empty
postfilled aluminum food or drink packaging material included in
paragraph (2), and the denominator of which shall be the number of
aluminum beverage containers sold in this state.
(4) An aluminum beverage container recycling rate, the numerator
of which shall be the number of empty aluminum beverage containers
returned for recycling, including refillable aluminum beverage
containers, and the denominator of which shall be the number of
aluminum beverage containers sold in this state.
(5) A bimetal beverage container redemption rate, the numerator of
which shall be the number of empty bimetal beverage containers
returned, and the denominator of which shall be the number of bimetal
beverage containers sold in this state.
(6) A bimetal beverage container recycling rate, the numerator of
which shall be the number of empty bimetal containers returned for
recycling, including refillable bimetal beverage containers, and the
denominator of which shall be the number of bimetal beverage
containers sold in this state.
(7) A glass beverage container redemption rate, the numerator of
which shall be the number of empty glass beverage containers
returned, including refillable glass beverage containers and empty
postfilled food or drink packaging materials included in paragraph
(2), and the denominator of which shall be the number of glass
beverage containers sold in this state.
(8) A glass beverage container recycling rate, the numerator of
which shall be the number of empty glass beverage containers returned
for recycling, including refillable glass beverage containers, and
the denominator of which shall be the number of glass beverage
containers sold in this state.
(9) A plastic beverage container redemption rate, the numerator of
which shall be the number of empty plastic beverage containers
returned, including refillable plastic beverage containers and empty
postfilled food or drink packaging materials included in paragraph
(2), and the denominator of which shall be the number of plastic
beverage containers sold in this state.
(10) A plastic beverage container recycling rate, the numerator of
which shall be the number of empty plastic beverage containers
returned for recycling, including refillable plastic beverage
containers, and the denominator of which shall be
the number of plastic beverage containers
sold in this state.
(11) A redemption rate for other beverage containers, the
numerator of which shall be the number of empty beverage containers
other than those containers specified in paragraphs (1) to (10),
inclusive, returned, and the denominator of which shall be the number
of beverage containers, other than those containers specified in
paragraphs (1) to (10), inclusive, sold in this state.
(12) A recycling rate for other beverage containers, the numerator
of which shall be the number of empty beverage containers other than
those containers specified in paragraphs (1) to (10), inclusive,
returned for recycling, and the denominator of which shall be the
number of beverage containers, other than those containers specified
in paragraphs (1) to (10), inclusive, sold in this state.
(13) The department may define categories of other beverage
containers, and report a redemption rate and a recycling rate for
each such category of other beverage containers.
(14) The volumes of materials collected from certified recycling
centers, by city or county, as requested by the city or county, if
the reporting is consistent with the procedures established pursuant
to Section 14554 to protect proprietary information.
(b) The department shall determine the manner of collecting the
information for the reports specified in subdivision (a), including
establishing procedures, to protect any proprietary information
concerning the sales and purchases.
SEC. 161. Section 21061.0.5 of the Public Resources Code is
amended and renumbered to read:
21061.3.
"Infill site" means a site in an urbanized area that meets either
of the following criteria:
(a) The immediately adjacent parcels are developed with qualified
urban uses or at least 75 percent of the perimeter of the site
adjoins parcels that are developed with qualified urban uses and the
remaining 25 percent of the site adjoins parcels that have previously
been developed for qualified urban uses, and the site has not been
developed for urban uses and no parcel within the site has been
created within the past 10 years.
(b) The site has been previously developed for qualified urban
uses.
SEC. 162. Section 21159.24 of the Public Resources Code is amended
to read:
21159.24.
(a) Except as provided in subdivision (b), this division does not
apply to a project if all of the following criteria are met:
(1) The project is a residential project on an infill site.
(2) The project is located within an urbanized area.
(3) The project satisfies the criteria of Section 21159.21.
(4) Within five years of the date that the application for the
project is deemed complete pursuant to Section 65943 of the
Government Code, community-level environmental review was certified
or adopted.
(5) The site of the project is not more than four acres in total
area.
(6) The project does not contain more than 100 residential units.
(7) Either of the following criteria are met:
(A) (i) At least 10 percent of the housing is sold to families of
moderate income, or not less than 10 percent of the housing is rented
to families of low income, or not less than 5 percent of the housing
is rented to families of very low income.
(ii) The project developer provides sufficient legal commitments
to the appropriate local agency to ensure the continued availability
and use of the housing units for very low, low-, and moderate-income
households at monthly housing costs determined pursuant to paragraph
(3) of subdivision (h) of Section 65589.5 of the Government Code.
(B) The project developer has paid or will pay in-lieu fees
pursuant to a local ordinance in an amount sufficient to result in
the development of an equivalent number of units that would otherwise
be required pursuant to subparagraph (A).
(8) The project is within one-half mile of a major transit stop.
(9) The project does not include any single level building that
exceeds 100,000 square feet.
(10) The project promotes higher density infill housing. A project
with a density of at least 20 units per acre shall be conclusively
presumed to promote higher density infill housing. A project with a
density of at least 10 units per acre and a density greater than the
average density of the residential properties within 1,500 feet shall
be presumed to promote higher density housing unless the
preponderance of the evidence demonstrates otherwise.
(b) Notwithstanding subdivision (a), this division shall apply to
a development project that meets the criteria described in
subdivision (a), if any of the following occur:
(1) There is a reasonable possibility that the project will have a
project-specific, significant effect on the environment due to
unusual circumstances.
(2) Substantial changes with respect to the circumstances under
which the project is being undertaken that are related to the project
have occurred since community-level environmental review was
certified or adopted.
(3) New information becomes available regarding the circumstances
under which the project is being undertaken and that is related to
the project, that was not known, and could not have been known, at
the time that community-level environmental review was certified or
adopted.
(c) If a project satisfies the criteria described in subdivision
(a), but is not exempt from this division as a result of satisfying
the criteria described in subdivision (b), the analysis of the
environmental effects of the project in the environmental impact
report or the negative declaration shall be limited to an analysis of
the project-specific effect of the projects and any effects
identified pursuant to paragraph (2) or (3) of subdivision (b).
(d) For the purposes of this section, "residential" means a use
consisting of either of the following:
(1) Residential units only.
(2) Residential units and primarily neighborhood-serving goods,
services, or retail uses that do not exceed 15 percent of the total
floor area of the project.
SEC. 163. Section 30310 of the Public Resources Code is amended to
read:
30310.
In making their appointments pursuant to this division, the
Governor, the Senate Committee on Rules, and the Speaker of the
Assembly shall make good faith efforts to assure that their
appointments, as a whole, reflect, to the greatest extent feasible,
the economic, social, and geographic diversity of the state.
SEC. 164. Section 40507 of the Public Resources Code is amended to
read:
40507.
(a) On or before March 1 of each year, the board shall file an
annual report with the Legislature highlighting significant programs
or actions undertaken by the board to implement programs pursuant to
this division during the prior calendar year. The report shall
include, but is not limited to, the information described in
subdivision (b).
(b) Commencing January 1, 1997, the board shall file annual
progress reports with the Legislature covering the activities and
actions undertaken by the board in the prior fiscal year. The board
shall prepare, and may electronically file with the Legislature, the
progress reports throughout the calendar year, as determined by the
board, on the following programs:
(1) The local enforcement agency program.
(2) The research and development program.
(3) The public education program.
(4) The market development program.
(5) The used oil program.
(6) The planning and local assistance program.
(7) The site cleanup program.
(c) The progress report shall specifically include, but is not
limited to, all of the following information:
(1) Pursuant to paragraph (1) of subdivision (b), the status of
the certification and evaluation of local enforcement agencies
pursuant to Chapter 2 (commencing with Section 43200) of Part 4.
(2) Pursuant to paragraph (2) of subdivision (b), all of the
following information:
(A) The results of the research and development programs
established pursuant to Chapter 13 (commencing with Section 42650) of
Part 3.
(B) A report on information and activities associated with the
establishment of the Plastics Recycling Information Clearinghouse,
pursuant to Section 42520.
(C) A report on the progress in implementing the monitoring and
control program for the subsurface migration of landfill gas
established pursuant to Section 43030, including recommendations, as
needed, to improve the program.
(D) A report on the comparative costs and benefits of the
recycling or conversion processes for waste tires funded pursuant to
Chapter 17 (commencing with Section 42860) of Part 3.
(3) Pursuant to paragraph (3) of subdivision (b), all of the
following information:
(A) A review of actions taken by the board to educate and inform
individuals and public and private sector entities who generate solid
waste on the importance of source reduction, recycling, and
composting of solid waste, and recommendations for administrative or
legislative actions which will inform and educate these parties.
(B) A report on the effectiveness of the public information
program required to be implemented pursuant to Chapter 12 (commencing
with Section 42600) of Part 3, including recommendations on
administrative and legislative changes to improve the program.
(C) A report on the status and effectiveness of school district
source reduction and recycling programs implemented pursuant to
Chapter 12.5 (commencing with Section 42620) of Part 3, including
recommendations on administrative and legislative changes to improve
the program's effectiveness.
(D) A report on the effectiveness of the integrated waste
management educational program and teacher training plan implemented
pursuant to Part 4 (commencing with Section 71300) of Division 34,
including recommendations on administrative and legislative changes
which will improve the program.
(E) A summary of available and wanted materials, a profile of the
participants, and the amount of waste diverted from disposal sites as
a result of the California Materials Exchange Program established
pursuant to subdivision (a) of Section 42600.
(4) Pursuant to paragraph (4) of subdivision (b), all of the
following information:
(A) A review of market development strategies undertaken by the
board pursuant to this division to ensure that markets exist for
materials diverted from solid waste facilities, including
recommendations for administrative and legislative actions which will
promote expansion of those markets. The recommendations shall
include, but not be limited to, all of the following:
(i) Recommendations for actions to develop more direct liaisons
with private manufacturing industries in the state to promote
increased utilization of recycled feedstock in manufacturing
processes.
(ii) Recommendations for actions which can be taken to assist
local governments in the inclusion of recycling activities in county
overall economic development plans.
(iii) Recommendations for actions to utilize available financial
resources for expansion of recycling industry capacity.
(iv) Recommendations to improve state, local, and private industry
product and material procurement practices.
(B) Development and implementation of a program to assist local
agencies in the identification of markets for materials that are
diverted from disposal facilities through source reduction,
recycling, and composting pursuant to Section 40913.
(C) A report on the Recycling Market Development Zone Loan Program
conducted pursuant to Article 3 (commencing with Section 42010) of
Chapter 1 of Part 3.
(D) A report on implementation of the Compost Market Program
pursuant to Chapter 5 (commencing with Section 42230) of Part 3.
(E) A report on the progress in developing and implementing the
comprehensive Market Development Plan, pursuant to Article 2 of
Chapter 1 (commencing with Section 42005) of Part 3.
(F) The number of retreaded tires purchased by the Department of
General Services during the prior fiscal year pursuant to Section
42414.
(G) The results of the study performed in consultation with the
Department of General Services pursuant to Section 42415 to determine
if tire retreads, procured by the Department of General Services,
have met all quality and performance criteria of a new tire,
including any recommendations to expand, revise, or curtail the
program.
(H) The number of recycled lead-acid batteries purchased during
the prior fiscal year by the Department of General Services pursuant
to Section 42443.
(I) A list of established price preferences for recycled paper
products for the prior fiscal year pursuant to paragraph (1) of
subdivision (c) of Section 12162 of the Public Contract Code.
(J) A report on the implementation of the white office paper
recovery program pursuant to Chapter 10 (commencing with Section
42560) of Part 3.
(5) Pursuant to paragraph (5) of subdivision (b), both of the
following information:
(A) A report on the annual audit of the used oil recycling program
established pursuant to Chapter 4 (commencing with Section 48600) of
Part 7.
(B) A summary of industrial and lubricating oil sales and
recycling rates, the results of programs funded pursuant to Chapter 4
(commencing with Section 48600) of Part 7, recommendations, if any,
for statutory changes to the program, including changes in the
amounts of the payment required by Section 48650 and the recycling
incentive, and plans for present and future programs to be conducted
over the next two years.
(6) Pursuant to paragraph (6) of subdivision (b), all of the
following information:
(A) The development by the board of the model countywide or
regional siting element and model countywide or regional agency
integrated waste management plan pursuant to Section 40912, including
its effectiveness in assisting local agencies.
(B) The adoption by the board of a program to provide assistance
to cities, counties, or regional agencies in the development and
implementation of source reduction programs pursuant to subdivision
(c) of Section 40912.
(C) The development by the board of model programs and materials
to assist rural counties and cities in preparing city and county
source reduction and recycling elements pursuant to Section 41787.3.
(D) A report on the number of tires that are recycled or otherwise
diverted from disposal in landfills or stockpiles.
(E) A report on the development and implementation of
recommendations, with proposed implementing regulations, for
providing technical assistance to counties and cities that meet
criteria specified in Section 41782, so that those counties and
cities will be able to meet the objectives of this division. The
recommendations shall, among other things, address both of the
following matters:
(i) Assistance in developing methods of raising revenue at the
local level to fund rural integrated waste management programs.
(ii) Assistance in developing alternative methods of source
reduction, recycling, and composting of solid waste suitable for
rural local governments.
(F) A report on the status and implementation of the "Buy Recycled"
program established pursuant to subdivision (d) of Section 42600,
including the waste collection and recycling programs established
pursuant to Sections 12164.5 and 12165 of the Public Contract Code.
(7) Pursuant to paragraph (7) of subdivision (b), a description of
sites cleaned up under the Solid Waste Disposal and Codisposal Site
Cleanup Program established pursuant to Article 2.5 (commencing with
Section 48020) of Chapter 2 of Part 7, a description of remaining
sites where there is no responsible party or the responsible party is
unable or unwilling to pay for cleanup, and recommendations for any
needed legislative changes.
SEC. 165. Section 42648.6 of the Public Resources Code is amended
to read:
42648.6.
If a large venue or large event has contiguous parcels located in
both the City of Los Angeles and the County of Los Angeles, the
requirements of this chapter shall apply only to the local agency
containing the majority of the property for that large venue or large
event.
SEC. 166. The heading of Chapter 4 (commencing with Section 71069)
of Part 2 of Division 34 of the Public Resources Code, as added by
Chapter 644 of the Statutes of 2004, is amended and renumbered to
read:
CHAPTER 3.5. Report and Information Management
SEC. 167. Section 353.2 of the Public Utilities Code is amended to
read:
353.2.
(a) As used in this article, "ultraclean and low-emission
distributed generation" means any electric generation technology that
meets both of the following criteria:
(1) Commences initial operation between January 1, 2003, and
December 31, 2008.
(2) Produces zero emissions during its operation or produces
emissions during its operation that are equal to or less than the
2007 State Air Resources Board emission limits for distributed
generation, except that technologies operating by combustion must
operate in a combined heat and power application with a 60-percent
system efficiency on a higher heating value.
(b) In establishing rates and fees, the commission may consider
energy efficiency and emissions performance to encourage early
compliance with air quality standards established by the State Air
Resources Board for ultraclean and low-emission distributed
generation.
SEC. 168. Section 379.6 of the Public Utilities Code is amended to
read:
379.6.
(a) The commission, in consultation with the State Energy
Resources Conservation and Development Commission, shall administer,
until January 1, 2008, the self-generation incentive program for
distributed generation resources originally established pursuant to
Chapter 329 of the Statutes of 2000. Except as provided in
subdivision (b), the program shall be administered in the same form
as it existed on January 1, 2004.
(b) Eligibility for the self-generation incentive program's level
3 incentive category shall be subject to the following conditions:
(1) Commencing January 1, 2005, all combustion-operated
distributed generation projects using fossil fuel shall meet an
oxides of nitrogen (NOx) emissions rate standard of 0.14 pounds per
megawatthour.
(2) Commencing January 1, 2007, all combustion-operated
distributed generation projects using fossil fuel shall meet a NOx
emissions rate standard of 0.07 pounds per megawatthour and a minimum
efficiency of 60 percent. A minimum efficiency of 60 percent shall
be measured as useful energy output divided by fuel input. The
efficiency determination shall be based on 100 percent load.
(3) Combined heat and power units that meet the 60-percent
efficiency standard may take a credit to meet the applicable NOx
emissions standard of 0.14 pounds per megawatthour or 0.07 pounds per
megawatthour. Credit shall be at the rate of one megawatthour for
each 3.4 million British thermal units (Btus) of heat recovered.
(4) Notwithstanding paragraphs (1) and (2), a project that does
not meet the applicable NOx emission standard is eligible if it meets
both of the following requirements:
(A) The project operates solely on waste gas. The commission shall
require a customer that applies for an incentive pursuant to this
paragraph to provide an affidavit or other form of proof, that
specifies that the project shall be operated solely on waste gas.
Incentives awarded pursuant to this paragraph shall be subject to
refund and shall be refunded by the recipient to the extent the
project does not operate on waste gas. As used in this paragraph,
"waste gas" means natural gas that is generated as a byproduct of
petroleum production operations and is not eligible for delivery to
the utility pipeline system.
(B) The air quality management district or air pollution control
district, in issuing a permit to operate the project, determines that
operation of the project will produce an onsite net air emissions
benefit, compared to permitted onsite emissions if the project does
not operate. The commission shall require the customer to secure the
permit prior to receiving incentives.
(c) In administering the self-generation incentive program, the
commission may adjust the amount of rebates, include other ultraclean
and low-emission distributed generation technologies, as defined in
Section 353.2, and evaluate other public policy interests, including,
but not limited to, ratepayers, and energy efficiency and
environmental interests.
SEC. 169. Section 394.25 of the Public Utilities Code is amended
to read:
394.25.
(a) The commission may enforce the provisions of Sections 2102,
2103, 2104, 2105, 2107, 2108, and 2114 against electric service
providers as if those electric service providers were public
utilities as defined in these code sections. Notwithstanding the
above, nothing in this section grants the commission jurisdiction to
regulate electric service providers other than as specifically set
forth in this part. Electric service providers shall continue to be
subject to the provisions of Sections 2111 and 2112. Upon a finding
by the commission's executive director that there is evidence to
support a finding that the electric service provider has committed an
act constituting grounds for suspension or revocation of
registration as set forth in subdivision (b) of Section 394.25, the
commission shall notify the electric service provider in writing and
notice an expedited hearing on the suspension or revocation of the
electric service provider's registration to be held within 30 days of
the notification to the electric service provider of the executive
director's finding of evidence to support suspension or revocation of
registration. The commission shall, within 45 days after holding the
hearing, issue a decision on the suspension or revocation of
registration, which shall be based on findings of fact and
conclusions of law based on the evidence presented at the hearing.
The decision shall include the findings of fact and the conclusions
of law relied upon.
(b) An electric service provider may have its registration
suspended or revoked, immediately or prospectively, in whole or in
part, for any of the following acts:
(1) Making material misrepresentations in the course of soliciting
customers, entering into service agreements with those customers, or
administering those service agreements.
(2) Dishonesty, fraud, or deceit with the intent to substantially
benefit the electric service provider or its employees, agents, or
representatives, or to disadvantage retail electricity customers.
(3) Where the commission finds that there is evidence that the
electric service provider is not financially or operationally capable
of providing the offered electric service.
(4) The misrepresentation of a material fact by an applicant in
obtaining a registration pursuant to Section 394.
(c) Pursuant to its authority to revoke or suspend registration,
the commission may suspend a registration for a specified period or
revoke the registration, or in lieu of suspension or revocation,
impose a moratorium on adding or soliciting additional customers. Any
suspension or revocation of a registration shall require the
electric service provider to cease serving customers within the
boundaries of investor-owned electrical corporations, and the
affected customers shall be served by the electrical corporation
until the time when they may select service from another service
provider. Customers shall not be liable for the payment of any early
termination fees or other penalties to any electric service provider
under the service agreement if the serving electric service provider'
s registration is suspended or revoked.
(d) The commission shall require any electric service provider
whose registration is revoked pursuant to paragraph (4) of
subdivision (b) to refund all of the customer credit funds that the
electric service provider received from the State Energy Resources
Conservation and Development Commission pursuant to subdivision (a)
of Section 25744 of the Public Resources Code. The repayment of these
funds shall be in addition to all other penalties and fines
appropriately assessed the electric service provider for committing
those acts under other provisions of law. All customer credit funds
refunded under this subdivision shall be deposited in the Renewable
Resource Trust Fund for redistribution by the State Energy Resources
Conservation and Development Commission pursuant to Chapter 8.6
(commencing with Section 25740) of Division 15 of the Public
Resources Code. This subdivision may not be construed to apply
retroactively.
(e) If a customer of an electric service provider or a community
choice aggregator is involuntarily returned to service provided by an
electrical corporation, any reentry fee imposed on that customer
that the commission deems is necessary to avoid imposing costs on
other customers of the electrical corporation shall be the obligation
of the electric service provider or a community choice aggregator,
except in the case of a customer returned due to default in payment
or other contractual obligations or because the customer's contract
has expired. As a condition of its registration, an electric service
provider or a community choice aggregator shall post a bond or
demonstrate insurance sufficient to cover those reentry fees. In the
event that an electric service provider becomes insolvent and is
unable to discharge its obligation to pay reentry fees, the fees
shall be allocated to the returning customers.
SEC. 170. Section 2827.10 of the Public Utilities Code is amended
to read:
2827.10.
(a) As used in this section, the following terms have the
following meanings:
(1) "Electrical corporation" means an electrical corporation, as
defined in Section 218.
(2) "Eligible fuel cell electrical generating facility" means a
facility that includes the following:
(A) Integrated powerplant systems containing a stack, tubular
array, or other functionally similar configuration used to
electrochemically convert fuel to electric energy.
(B) An inverter and fuel processing system where necessary.
(C) Other plant equipment, including heat recovery equipment,
necessary to support the plant's operation or its energy conversion.
(3) "Eligible fuel cell customer-generator" means a customer of an
electrical corporation that meets all the following criteria:
(A) Uses a fuel cell electrical generating facility with a
capacity of not more than one megawatt that is located on or adjacent
to the customer's owned, leased, or rented
premises, is interconnected and operates in
parallel with the electric grid while the grid is operational or in a
grid independent mode when the grid is nonoperational, and is sized
to offset part or all of the eligible fuel cell customer-generator's
own electrical requirements.
(B) Is the recipient of local, state, or federal funds, or who
self-finances projects designed to encourage the development of
eligible fuel cell electrical generating facilities.
(C) Uses technology that meets the definition of an "ultraclean
and low-emission distributed generation" in subdivision (a) of
Section 353.2.
(4) "Net energy metering" has the same meaning as that term is
defined in Section 2827.9.
(b) Every electrical corporation shall, not later than March 1,
2004, file with the commission a standard tariff providing for net
energy metering for eligible fuel cell customer-generators,
consistent with this section. Every electrical corporation shall make
this tariff available to eligible fuel cell customer-generators upon
request, on a first-come, first-served basis, until the total
cumulative rated generating capacity used by the eligible fuel cell
customer-generators equals 45 megawatts within the service territory
of the electrical corporation for an electrical corporation with a
peak demand above 10,000 megawatts, or equals 22.5 megawatts within
the service territory of the electrical corporation for an electrical
corporation with a peak demand of 10,000 megawatts or below. The
combined statewide cumulative rated generating capacity used by the
eligible fuel cell customer-generators in the service territories of
all electrical corporations in the state may not exceed 112.5
megawatts.
(c) In determining the eligibility for the cumulative rated
generating capacity within an electrical service area, preference
shall be given to facilities which, at the time of installation, are
located in a community with significant exposure to air contaminants
or localized air contaminants, or both, including, but not limited
to, communities of minority populations or low-income populations, or
both, based on the ambient air quality standards established
pursuant to Section 39607 of the Health and Safety Code.
(d) Each net energy metering contract or tariff shall be
identical, with respect to rate structure, all retail rate
components, and any monthly charges, to the contract or tariff to
which the customer would be assigned if the customer was not an
eligible fuel cell customer-generator. Any new or additional demand
charge, standby charge, customer charge, minimum monthly charge,
interconnection charge, or other charge that would increase an
eligible fuel cell customer-generator's costs beyond those of other
customers in the rate class to which the eligible fuel cell
customer-generator would otherwise be assigned are contrary to the
intent of the Legislature in enacting Chapter 661 of the Statutes of
2003, and may not form a part of net energy metering tariffs.
(e) The net metering calculation shall be carried out in
accordance with Section 2827.9.
(f) This section shall remain in effect only until January 1,
2006, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2006, deletes or extends
that date.
SEC. 171. Section 2828 of the Public Utilities Code is amended to
read:
2828.
(a) As used in this section, the following terms have the
following meanings:
(1) "Environmental attributes" associated with the Hetch Hetchy
Water and Power solar generation include, but are not limited to, the
credits, benefits, emissions reductions, environmental air quality
credits, and emissions reduction credits, offsets, and allowances,
however entitled, resulting from the avoidance of the emission of any
gas, chemical, or other substance attributable to the Hetch Hetchy
Water and Power photovoltaic electricity generation facility owned by
the City and County of San Francisco.
(2) "HHWP solar generation" means the electricity generated by
Hetch Hetchy Water and Power photovoltaic electricity generation
facilities owned by the City and County of San Francisco, designated
by the City and County of San Francisco pursuant to subdivision (b)
and not to exceed five megawatts of peak generation capacity in
total.
(3) "Interconnection Agreement" means the 1987 agreement between
Pacific Gas and Electric Company and the City and County of San
Francisco, as filed with and accepted by the Federal Energy
Regulatory Commission (FERC), and as amended from time to time with
FERC approval, which provides for rates for transmission,
distribution, and sales of supplemental electricity to the City and
County of San Francisco. Nothing in this section shall waive or
modify the rights of parties under the Interconnection Agreement or
the jurisdiction of the FERC over rates set forth in the
Interconnection Agreement.
(4) "Appropriate TOU tariff" means the Time-of-Use tariff that
would be applicable to the City and County of San Francisco account
at the photovoltaic project site if the facility at the site were a
Pacific Gas and Electric Company bundled customer, as determined by
Pacific Gas and Electric Company.
(b) The City and County of San Francisco may elect to designate
specific photovoltaic electricity generation facilities as HHWP solar
generation, if all of the following conditions are met:
(1) No single photovoltaic generation project exceeds one megawatt
of peak generation capacity.
(2) The photovoltaic project utilizes a meter, or multiple meters,
capable of separately measuring electricity flow in both directions.
All meters shall provide "time-of-use" measurement information. If
the existing meter at the site of the photovoltaic project is not
capable of providing time-of-use information or is not capable of
separately measuring total flow of energy in both directions, the
City and County of San Francisco is responsible for all expenses
involved in purchasing and installing a meter or meters that are both
capable of providing time-of-use information and able to separately
measure total electricity flow in both directions.
(3) The amount of all electricity delivered to the electric grid
by the designated HHWP solar generation is the property of Pacific
Gas and Electric Company.
(4) The City and County of San Francisco does not sell electricity
delivered to the electric grid from the designated HHWP solar
generation to a third party.
(5) Ownership and use of the environmental attributes associated
with the electricity delivered to the electric grid by HHWP solar
generation shall be determined by the commission in accordance with
Article 16 (commencing with Section 399.11) of Chapter 2.3 of Part 1.
(c) For each site of a photovoltaic project that comprises the
HHWP solar generation, Pacific Gas and Electric Company shall
identify the appropriate TOU tariff for that site. Any electricity
exported to the Pacific Gas and Electric Company grid at that site
shall, for each time-of-use period, result in a monetary credit to be
applied monthly as a credit or offset against the invoice created
pursuant to the Interconnection Agreement and shall be valued at the
generation component of the appropriate TOU tariff. The commission
shall determine if it is appropriate to increase the credit to
reflect any additional value derived from the location or the
environmental attributes of, the designated HHWP solar generation.
(d) Monthly charges and credit amounts are interim and subject to
an accounting true-up, consistent with commission policies and
practices. The true-up shall be performed annually or upon the
termination, for any reason, of the Interconnection Agreement. The
true-up shall accomplish the following:
(1) If the total electricity delivered to the site by Pacific Gas
and Electric Company since the previous true-up equals or exceeds the
total electricity exported to the grid by the Hetch Hetchy
photovoltaic electricity generation facility at the site, the City
and County of San Francisco is a net electricity consumer at that
site. For any site where the City and County of San Francisco is a
net electricity consumer, a credit or offset shall be applied to
reduce the obligations of the City and County of San Francisco to an
invoice prepared pursuant to the Interconnection Agreement. If there
is no invoiced obligation to be reduced, there is no applicable
credit.
(2) If the total electricity delivered to the site by Pacific Gas
and Electric Company since the previous true-up is less than the
total electricity exported to the grid by the Hetch Hetchy
photovoltaic electricity generation facility at the site, the City
and County of San Francisco is a net electricity producer at that
site. For any site where the City and County of San Francisco is a
net electricity producer, the City and County of San Francisco shall
receive no credit or offset for the electricity exported to the grid
in excess of the electricity delivered to the site from the grid. For
any site where the City and County of San Francisco is a net
electricity producer, the City and County of San Francisco shall
receive a credit or offset up to the amount of electricity delivered
to the site from the grid. The credit or offset shall be applied to
reduce the obligations of the City and County of San Francisco to an
invoice prepared pursuant to the Interconnection Agreement. If there
is no invoiced obligation to be reduced, there is no applicable
credit or offset. Pacific Gas and Electric Company shall use the
last-in, first-out method to determine what electricity delivered to
the grid from the site will not earn a credit or offset.
(e) Notwithstanding any other provision of this section, if the
City and County of San Francisco engages in retail sales to customers
within the service territory of Pacific Gas and Electric Company, as
a result of becoming a community choice aggregator, as a result of
municipalization, or otherwise, all other provisions of this section
shall become inoperative.
(f) Pursuant to this section, the offset to charges under the
Interconnection Agreement is the medium to convey credits earned
under this section. Nothing in this section shall be construed to
affect in any way the rights and obligations of the City and County
of San Francisco and Pacific Gas and Electric Company under the
Interconnection Agreement.
(g) Pacific Gas and Electric Company shall file an advice letter
with the commission, that complies with this section, not later than
10 days after the City and County of San Francisco first designates
the specific generation facilities that will comprise HHWP solar
generation. The commission, within 30 days of the date of filing of
the advice letter, shall approve the advice letter or specify
conforming changes to be made by Pacific Gas and Electric Company to
be filed in an amended advice letter within 30 days.
(h) The City and County of San Francisco may terminate its
election pursuant to subdivisions (b), (c), and (d), upon providing
Pacific Gas and Electric Company with a minimum of 60 days' written
notice.
SEC. 172. Section 21661.5 of the Public Utilities Code is amended
to read:
21661.5.
(a) No political subdivision, any of its officers or employees, or
any person may submit any application for the construction of a new
airport to any local, regional, state, or federal agency unless the
plan for construction is first approved by the board of supervisors
of the county, or the city council of the city, in which the airport
is to be located and unless the plan is submitted to the appropriate
commission exercising powers pursuant to Article 3.5 (commencing with
Section 21670) of Chapter 4 of Part 1 of Division 9, and acted upon
by that commission in accordance with the provisions of that article.
(b) A county board of supervisors or a city council may, pursuant
to Section 65100 of the Government Code, delegate its responsibility
under this section for the approval of a plan for construction of new
helicopter landing and takeoff areas, to the county or city planning
agency.
SEC. 173. Section 90300 of the Public Utilities Code is amended to
read:
90300.
(a) Employees have the right to self-organize, to form, join, or
assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection. It is declared to be in the public
interest that the district not express any preference for one union
over another.
(1) (A) Notwithstanding any other provision of this act, if a
majority of the employees employed by a district in a unit
appropriate for collective bargaining indicate a desire to be
represented by a labor organization, then the district, after
determining pursuant to subdivision (f) that the labor organization
represents the employees in the appropriate unit, shall enter into a
written contract with the accredited representative of those
employees governing wages, salaries, hours, and working conditions.
(B) (i) If a dispute arises over wages, salaries, hours, or
working conditions that is not resolved by negotiations conducted in
good faith between the district and the labor organization, then upon
the request of either party, the district and the labor organization
may submit the dispute to an arbitration board. The decision of a
majority of the arbitration board shall be final.
(ii) The arbitration board shall be composed of two
representatives of the district, two representatives of the labor
organization, and a fifth member to be agreed upon by the
representatives of the district and labor organization.
(iii) If the representatives of the district and labor
organization are unable to agree on the fifth member, then the names
of five persons experienced in labor arbitration shall be obtained
from the California State Mediation and Conciliation Service within
the Department of Industrial Relations. The labor organization and
the district shall, alternately, strike a name from the list supplied
by the California State Mediation and Conciliation Service. The
labor organization and the district shall determine by lot who shall
first strike a name from the list. After the labor organization and
the district have stricken four names, the name remaining shall be
designated as the arbitrator. The decision of a majority of the
arbitration board shall be final and binding upon the parties.
(iv) The expenses of arbitration shall be borne equally by the
parties. Each party shall bear the party's own costs.
(b) If the board and the representatives of the employees do not
agree to submit the dispute to an arbitration board as provided in
subdivision (a), either party may notify the California State
Mediation and Conciliation Service that a dispute exists and that
there is no agreement to arbitrate. The California State Mediation
and Conciliation Service shall determine whether or not the dispute
can be resolved by the parties and, if not, the issues that are the
subject of the dispute. After making its determination, the service
shall certify its findings to the Governor who shall, within 10 days
of receipt of certification, appoint a factfinding commission
consisting of three persons. The factfinding commission shall
immediately convene and investigate the issues involved in the
dispute. The commission shall report to the Governor within 30 days
of the date of its creation.
(c) After the creation of the commission and for 30 days after the
date the commission made its report to the Governor, the parties to
the controversy shall not make any change, except by mutual
agreement, in the conditions out of which the dispute arose. Service
to the public shall be provided during that time.
(d) A contract or agreement shall not be made, or assumed, with
any labor organization, association, group, or individual that denies
membership to, or in any manner discriminates against, any employee
on any basis listed in subdivision (a) of Section 12940 of the
Government Code, as those bases are defined in Sections 12926 and
12926.1 of the Government Code. However, the organization may
preclude from membership any individual who advocates the overthrow
of the government by force or violence.
(e) The district shall not discriminate with regard to employment
against any person on any basis listed in subdivision (a) of Section
12940 of the Government Code, as those bases are defined in Sections
12926 and 12926.1 of the Government Code, except as otherwise
provided in Section 12940 of the Government Code.
(f) (1) Any questions regarding whether a labor organization
represents a majority of employees or whether the proposed unit is or
is not appropriate, shall be submitted to the California State
Mediation and Conciliation Service for disposition. The California
State Mediation and Conciliation Service shall promptly hold a public
hearing after due notice to all interested parties to determine the
unit appropriate for the purposes of collective bargaining. In making
that determination and in establishing rules and regulations
governing petitions and the conduct of hearings and elections, the
California State Mediation and Conciliation Service shall be guided
by relevant federal law and administrative practice, developed under
the Labor-Management Relations Act of 1947 (29 U.S.C. Sec. 141 et
seq.).
(2) The California State Mediation and Conciliation Service shall
provide for an election to determine the question of representation
and shall certify the results to the parties. A certification of a
labor organization to represent or act for the employees in any
collective bargaining unit shall not be subject to challenge on the
grounds that a new substantial question of representation within the
collective bargaining unit exists until the lapse of one year from
the date of certification or the expiration of any collective
bargaining agreement, whichever is later. However, no collective
bargaining agreement shall be construed to be a bar to representation
proceedings for a period of more than two years.
(g) If the district acquires existing facilities from a publicly
or privately owned public utility, either in proceedings by eminent
domain or otherwise, the district shall assume and observe all
existing labor contracts.
(1) To the extent necessary for operation of facilities, all of
the employees of the acquired public utility whose duties pertain to
the facilities acquired shall be appointed to comparable positions in
the district without examination, subject to all the rights and
benefits of this act. Those employees shall be given sick leave,
seniority, vacation, and pension credits in accordance with the
records and labor agreements of the acquired public utility.
(2) Members and beneficiaries of any pension or retirement system,
or other benefits established by the public utility, shall continue
to have the rights, privileges, benefits, obligations, and status
with respect to the established system. No employee of any acquired
public utility may be subject to a reduction in wages, seniority,
pension, vacation, or other benefits as a result of the acquisition.
(3) The district may extend the benefits of this section to
officers or supervisory employees of the acquired utility.
(h) The district shall not do any of the following:
(1) Acquire any existing system or part of an existing system,
whether by purchase, lease, condemnation, or otherwise.
(2) Dispose of or lease any transit system or part of the transit
system.
(3) Merge, consolidate, or coordinate any transit system or part
of the transit system.
(4) Reduce or limit the lines or service of any existing system or
of the district's system unless the district has first made adequate
provision for any employees who are or may be displaced. The terms
and conditions of that provision shall be a proper subject of
collective bargaining.
(i) Notwithstanding any provision of the Government Code, the
district may make deductions from the wages and salaries of its
employees who authorize the deductions for the following purposes:
(1) Pursuant to a collective bargaining agreement with a duly
designated or certified labor organization, for the payment of union
dues, fees, or assessments.
(2) For the payment of contributions pursuant to any health and
welfare plan, or pension or retirement plan.
(3) For any purpose for which employees of any private employer
may authorize deductions.
(j) (1) The obligation of the district to bargain in good faith
with a duly designated or certified labor organization and to execute
a written collective bargaining agreement with that labor
organization covering the wages, hours, and working conditions of the
employees represented by that labor organization in an appropriate
unit, and to comply with the terms of the collective bargaining
agreement, shall not be limited or restricted by any provision of
law. The obligation of the district to bargain collectively shall
extend to all subjects of collective bargaining that are or may be
proper subjects of collective bargaining with a private employer,
including retroactive provisions.
(2) Notwithstanding any other provision of law, the district shall
make deductions from the wages and salaries of its employees, upon
receipt of authorization to make those deductions, for the payment of
union dues, fees, or assessments, for the payment of contributions
pursuant to any health and welfare plan or pension plan, or for any
other purpose for which employees of any private employer may
authorize deductions, where those deductions are pursuant to a
collective bargaining agreement with a duly designated or certified
labor organization.
(k) The district may provide for a retirement system, provided
that the adoption, terms, and conditions of any retirement system
covering employees of the district represented by a labor
organization in accordance with this section shall be pursuant to a
collective bargaining agreement between the labor organization and
the district.
(l) The district shall take any steps that may be necessary to
obtain coverage for the district and its employees under Title II of
the Federal Social Security Act (42 U.S.C. Sec. 401 et seq.), and the
related provisions of the Federal Insurance Contributions Act (26
U.S.C. Sec. 3101 et seq.).
(m) The district shall take any steps that may be necessary to
obtain coverage for the district and its employees under the workers'
compensation (Division 4 (commencing with Section 3200) and Division
4.5 (commencing with Section 6100) of the Labor Code), unemployment
compensation disability (Part 2 (commencing with Section 2691) of
Division 1 of the Unemployment Insurance Code), and unemployment
insurance (Part 1 (commencing with Section 100) of Division 1 of the
Unemployment Insurance Code) laws of the State of California.
SEC. 174. Section 130054.1 of the Public Utilities Code is amended
to read:
130054.1.
The Ventura County Transportation Commission shall consist of the
following members:
(a) Five members of the Ventura County Board of Supervisors.
(b) One member from each incorporated city within Ventura County
who shall be the mayor of the city or a member of its city council.
The term of a member under this subdivision terminates when he or she
ceases to hold that office or when replaced by the city council.
(c) One citizen member appointed by the Ventura County Board of
Supervisors, who shall not be an elected official, but who shall be a
resident of Ventura County.
(d) One citizen member appointed by the Ventura County City
Selection Committee, who shall not be an elected official, but who
shall be a resident of Ventura County.
(e) One nonvoting member appointed by the Governor.
SEC. 175. Section 130630 of the Public Utilities Code is amended
to read:
130630.
The role of the board as it relates to the MTA is as follows:
(a) The board provides counsel and direction to management and
shall not be involved in the day-to-day affairs of the MTA.
(b) Board members do not have individual power or authority over
the MTA. That power and decisionmaking authority lie with the full
board.
SEC. 176. Section 170042 of the Public Utilities Code is amended
to read:
170042.
(a) The board may act only by ordinance or resolution for the
regulation of the authority and undertaking all acts necessary and
convenient for the exercise of the authority's powers.
(b) The authority may adopt and enforce rules and regulations for
the administration, maintenance, operation, and use of its facilities
and services.
(c) (1) A person who violates a rule, regulation, or ordinance
adopted by the board is guilty of a misdemeanor punishable pursuant
to Section 19 of the Penal Code, or an infraction under the
circumstances set forth in paragraph (1) or (2) of subdivision (d) of
Section 17 of the Penal Code.
(2) The authority may employ necessary personnel to enforce this
section.
(d) A majority of the membership of the board shall constitute a
quorum for the transaction of business.
SEC. 177. Section 69.4 of the Revenue and Taxation Code is amended
to read:
69.4.
(a) (1) Notwithstanding any other provision of law, pursuant to
the authority of subdivision (i) of Section 2 of Article XIII A of
the California Constitution, the base year value of qualified
contaminated property may be transferred, subject to the conditions
and limitations of that subdivision and this section, to a comparable
replacement property of equal or lesser value that is located in the
same county and is acquired or newly constructed as a replacement
for the contaminated property, pursuant to subparagraph (A) of
paragraph (1) of that subdivision.
(2) The limitation in paragraph (1) requiring that the qualified
contaminated property and the replacement property be located in the
same county does not apply in a county in which the county board of
supervisors adopts a resolution making the provisions of this section
applicable to replacement properties acquired to replace qualified
contaminated properties located in another county within this state.
The resolution shall specify the date on and after which its
provisions are applicable. The specified date may be a date earlier
than the date on which the county adopts the ordinance, but no
earlier than November 3, 1998.
(b) The replacement property shall be acquired or newly
constructed within five years after the original property is sold or
otherwise transferred.
(c) (1)
Upon the sale or transfer of the original property, the assessor
shall determine a new base year value for that property in accordance
with subdivision (a) of Section 2 of Article XIII A of the
California Constitution and Section 110.1.
(2) This section does not apply unless the sale or transfer of the
original property is a change in ownership that does either of the
following:
(A) Subjects the original property to reappraisal at its current
fair market value in accordance with Section 110.1 or 5803.
(B) Results in a base year value determined in accordance with
this section, Section 69, Section 69.3, or Section 69.5 because the
property qualifies under this section, Section 69, Section 69.3, or
Section 69.5 as a replacement dwelling or property.
(d) Property tax relief under this section is not available for a
replacement property if the owner or owners of the original property
do either of the following:
(1) Receive property tax relief under Section 74.7.
(2) Sign a claim under Section 63.1 allowing the base year value
to stay with the original property.
(e) For purposes of this section:
(1) The "original property" means the qualified contaminated
property.
(2) "Equal or lesser value" means the amount of the full cash
value of a replacement property that does not exceed one of the
following:
(A) One hundred five percent of the amount of the full cash value
of the original property, if the replacement property is purchased or
newly constructed within the first year following the date of the
sale of the original property.
(B) One hundred ten percent of the amount of the full cash value
of the original property, if the replacement property is purchased or
newly constructed within the second year following the date of the
sale of the original property.
(C) One hundred fifteen percent of the amount of the full cash
value of the original property, if the replacement property is
purchased or newly constructed within the third year following the
date of the sale of the original property.
(D) One hundred twenty percent of the amount of the full cash
value of the original property, if the replacement property is
purchased or newly constructed within the fourth year following the
date of the sale of the original property.
(E) One hundred twenty-five percent of the amount of the full cash
value of the original property, if the replacement property is
purchased or newly constructed within the fifth year following the
date of the sale of the original property.
For purposes of this paragraph, if the replacement property is, in
part, purchased and, in part, newly constructed, the date the
replacement property is "acquired or newly constructed" is the date
of acquisition or the date of completion of construction, whichever
is later.
(3) The base year value of the original property shall be the base
year value of the original property as determined in accordance with
Section 110.1, with the inflation factor adjustments permitted by
subdivision (f) of Section 110.1. The base year value of the original
property shall also include any inflation factor adjustments
permitted by subdivision (f) of Section 110.1 up to the date the
replacement property is acquired or newly constructed, regardless of
whether the claimant continued to own the original property during
this entire period. The base year or years used to compute the base
year value of the original property shall be deemed to be the base
year or years of any property to which that base year value is
transferred pursuant to this section.
(4) "Fair market value of the replacement property" means the full
cash value of the replacement property determined in accordance with
Section 110.1 as of the date on which that property was acquired or
new construction was completed. If the replacement property is, in
part, acquired and, in part, newly constructed, "fair market value of
the replacement property" means the fair market value of the land
and the improvements as of the date of completion.
(5) "Fair market value of the qualified contaminated property"
means the full cash value of the qualified contaminated property, as
if that property was not contaminated, determined in accordance with
Section 110.1, as of the date of its sale or transfer by the
claimant.
(6) "Claimant" means any owner of qualified contaminated property
claiming the property tax relief provided by this section.
(7) "Comparable replacement property" means a property that is
similar in utility and function to the property that it replaces.
Property is similar in function and utility if it is, or is intended
to be, used in the same manner as the qualified contaminated
property.
(f) (1) A claimant is not eligible for the property tax relief
provided by this section unless a claim is filed within three years
of the date the replacement property was purchased or the new
construction of the replacement property was completed.
(2) The claimant shall provide to the assessor the following
information:
(A) Proof that the claimant did not participate or acquiesce in
any act or omission that rendered the real property uninhabitable or
unusable, as applicable, or is related to any individual or entity
that committed that act or omission.
(B) Proof that the qualified contaminated property has been
designated as a toxic or environmental hazard or as an environmental
cleanup site by an agency of the State of California or the federal
government.
(3) The State Board of Equalization shall design the form for
claiming eligibility.
(g) (1) Upon the timely filing of a claim, the assessor shall
adjust the new base year value as of the date the replacement
property is acquired or the date the new construction of the
replacement property is completed, whichever is later.
(2) Any taxes that were levied on the replacement property prior
to the filing of the claim on the basis of the replacement property's
new base year value, and any allowable annual adjustments thereto,
shall be canceled or refunded to the claimant to the extent that the
taxes exceed the amount that would be due when determined on the
basis of the adjusted new base year value.
(3) Notwithstanding Section 75.10, Chapter 3.5 (commencing with
Section 75) of Part 0.5 of Division 1 shall be utilized for purposes
of implementing this subdivision, including adjustments of the new
base year value of replacement properties acquired prior to the sale
or transfer of the qualified contaminated property.
(h) This section applies only to replacement property that is
acquired or newly constructed on or after January 1, 1995.
SEC. 178. Section 214 of the Revenue and Taxation Code is amended
to read:
214.
(a) Property used exclusively for religious, hospital, scientific,
or charitable purposes owned and operated by community chests,
funds, foundations, limited liability companies, or corporations
organized and operated for religious, hospital, scientific, or
charitable purposes is exempt from taxation, including ad valorem
taxes to pay the interest and redemption charges on any indebtedness
approved by the voters prior to July 1, 1978, or any bonded
indebtedness for the acquisition or improvement of real property
approved on or after July 1, 1978, by two-thirds of the votes cast by
the voters voting on the proposition, if:
(1) The owner is not organized or operated for profit. However, in
the case of hospitals, the organization shall not be deemed to be
organized or operated for profit if, during the immediately preceding
fiscal year, operating revenues, exclusive of gifts, endowments and
grants-in-aid, did not exceed operating expenses by an amount
equivalent to 10 percent of those operating expenses. As used herein,
operating expenses include depreciation based on cost of replacement
and amortization of, and interest on, indebtedness.
(2) No part of the net earnings of the owner inures to the benefit
of any private shareholder or individual.
(3) The property is used for the actual operation of the exempt
activity, and does not exceed an amount of property reasonably
necessary to the accomplishment of the exempt purpose.
(A) For the purposes of determining whether the property is used
for the actual operation of the exempt activity, consideration shall
not be given to use of the property for either or both of the
following described activities if that use is occasional:
(i) The owner conducts fundraising activities on the property and
the proceeds derived from those activities are not unrelated business
taxable income, as defined in Section 512 of the Internal Revenue
Code, of the owner and are used to further the exempt activity of the
owner.
(ii) The owner permits any other organization that meets all of
the requirements of this subdivision, other than ownership of the
property, to conduct fundraising activities on the property and the
proceeds derived from those activities are not unrelated business
taxable income, as defined in Section 512 of the Internal Revenue
Code, of the organization, are not subject to the tax on unrelated
business taxable income that is imposed by Section 511 of the
Internal Revenue Code, and are used to further the exempt activity of
the organization.
(B) For purposes of subparagraph (A):
(i) "Occasional use" means use of the property on an irregular or
intermittent basis by the qualifying owner or any other qualifying
organization described in clause (ii) of subparagraph (A) that is
incidental to the primary activities of the owner or the other
organization.
(ii) "Fundraising activities" means both activities involving the
direct solicitation of money or other property and the anticipated
exchange of goods or services for money between the soliciting
organization and the organization or person solicited.
(C) Subparagraph (A) shall have no application in determining
whether paragraph (3) has been satisfied unless the owner of the
property and any other organization using the property as provided in
subparagraph (A) have filed with the assessor a valid organizational
clearance certificate issued pursuant to Section 254.6.
(D) For the purposes of determining whether the property is used
for the actual operation of the exempt activity, consideration shall
not be given to the use of the property for meetings conducted by any
other organization if the meetings are incidental to the other
organization's primary activities, are not fundraising meetings or
activities as defined in subparagraph (B), are held no more than once
per week, and the other organization and its use of the property
meet all other requirements of paragraphs (1) to (5), inclusive. The
owner of the other organization also shall file with the assessor a
valid organizational clearance certificate issued pursuant to Section
254.6.
(E) Nothing in subparagraph (A), (B), (C), or (D) shall be
construed to either enlarge or restrict the exemption provided for in
subdivision (b) of Section 4 and Section 5 of Article XIII of the
California Constitution and this section.
(4) The property is not used or operated by the owner or by any
other person so as to benefit any officer, trustee, director,
shareholder, member, employee, contributor, or bondholder of the
owner or operator, or any other person, through the distribution of
profits, payment of excessive charges or compensations, or the more
advantageous pursuit of their business or profession.
(5) The property is not used by the owner or members thereof for
fraternal or lodge purposes, or for social club purposes except where
that use is clearly incidental to a primary religious, hospital,
scientific, or charitable purpose.
(6) The property is irrevocably dedicated to religious,
charitable, scientific, or hospital purposes and upon the
liquidation, dissolution, or abandonment of the owner will not inure
to the benefit of any private person except a fund, foundation, or
corporation organized and operated for religious, hospital,
scientific, or charitable purposes.
(7) The property, if used exclusively for scientific purposes, is
used by a foundation or institution that, in addition to complying
with the foregoing requirements for the exemption of charitable
organizations in general, has been chartered by the Congress of the
United States (except that this requirement shall not apply when the
scientific purposes are medical research), and whose objects are the
encouragement or conduct of scientific investigation, research, and
discovery for the benefit of the community at large.
The exemption provided for herein shall be known as the "welfare
exemption." This exemption shall be in addition to any other
exemption now provided by law, and the existence of the exemption
provision in paragraph (2) of subdivision (a) of Section 202 shall
not preclude the exemption under this section for museum or library
property. Except as provided in subdivision (e), this section shall
not be construed to enlarge the college exemption.
(b) Property used exclusively for school purposes of less than
collegiate grade and owned and operated by religious, hospital, or
charitable funds, foundations, limited liability companies, or
corporations, which property and funds, foundations, limited
liability companies, or corporations meet all of the requirements of
subdivision (a), shall be deemed to be within the exemption provided
for in subdivision (b) of Section 4 and Section 5 of Article XIII of
the California Constitution and this section.
(c) Property used exclusively for nursery school purposes and
owned and operated by religious, hospital, or charitable funds,
foundations, limited liability companies, or corporations, which
property and funds, foundations, limited liability companies, or
corporations meet all the requirements of subdivision (a), shall be
deemed to be within the exemption provided for in subdivision (b) of
Section 4 and Section 5 of Article XIII of the California
Constitution and this section.
(d) Property used exclusively for a noncommercial educational FM
broadcast station or an educational television station, and owned and
operated by religious, hospital, scientific, or charitable funds,
foundations, limited liability companies, or corporations meeting all
of the requirements of subdivision (a), shall be deemed to be within
the exemption provided for in subdivision (b) of Section 4 and
Section 5 of Article XIII of the California Constitution and this
section.
(e) Property used exclusively for religious, charitable,
scientific, or hospital purposes and owned and operated by religious,
hospital, scientific, or charitable funds, foundations, limited
liability companies, or corporations or educational institutions of
collegiate grade, as defined in Section 203, which property and
funds, foundations, limited liability companies, corporations, or
educational institutions meet all of the requirements of subdivision
(a), shall be deemed to be within the exemption provided for in
subdivision (b) of Section 4 and Section 5 of Article XIII of the
California Constitution and this section. As to educational
institutions of collegiate grade, as defined in Section 203, the
requirements of paragraph (6) of subdivision (a) shall be deemed to
be met if both of the following are met:
(1) The property of the educational institution is irrevocably
dedicated in its articles of incorporation to charitable and
educational purposes, to religious and educational purposes, or to
educational purposes.
(2) The articles of incorporation of the educational institution
provide for distribution of its property upon its liquidation,
dissolution, or abandonment to a fund, foundation, or corporation
organized and operated for religious, hospital, scientific,
charitable, or educational purposes meeting the requirements for
exemption provided by Section 203 or this section.
(f) Property used exclusively for housing and related facilities
for elderly or handicapped families and financed by, including, but
not limited to, the federal government pursuant to Section 202 of
Public Law 86-372 (12 U.S.C. Sec. 1701q), as amended, Section 231 of
Public Law 73-479 (12 U.S.C. Sec. 1715v), Section 236 of Public Law
90-448 (12 U.S.C. Sec. 1715z), or Section 811 of Public Law 101-625
(42 U.S.C. Sec. 8013), and owned and operated by religious, hospital,
scientific, or charitable funds, foundations, or corporations
meeting all of the requirements of this section shall be deemed to be
within the exemption provided for in subdivision (b) of Section 4
and Section 5 of Article XIII of the California Constitution and this
section.
The amendment of this paragraph made by Chapter 1102 of the
Statutes of 1984 does not constitute a change in, but is declaratory
of, existing law. However, no refund of property taxes shall be
required as a result of this amendment for any fiscal year prior to
the fiscal year in which the amendment takes effect.
Property used exclusively for housing and related facilities for
elderly or handicapped families at which supplemental care or
services designed to meet the special needs of elderly or handicapped
residents are not provided, or that is not financed by the federal
government pursuant to Section 202 of Public Law 86-372 (12 U.S.C.
Sec. 1701q), as amended, Section 231 of Public Law 73-479 (12 U.S.C.
Sec. 1715v), Section 236 of Public Law 90-448 (12 U.S.C. Sec.
1715z), or Section 811 of Public Law 101-625 (42 U.S.C. Sec. 8013),
shall not be entitled to exemption pursuant to this subdivision
unless the property is used for housing and related facilities for
low- and moderate-income elderly or handicapped families. Property
that would otherwise be exempt pursuant to this subdivision, except
that it includes some housing and related facilities for other than
low- or moderate-income elderly or handicapped families, shall be
entitled to a partial exemption. The partial exemption shall be equal
to that percentage of the value of the property that is equal to the
percentage that the number of low- and moderate-income elderly and
handicapped families occupying the property represents of the total
number of families occupying the property.
As used in this subdivision, "low and moderate income" has the
same meaning as the term "persons and families of low or moderate
income" as defined by Section 50093 of the Health and Safety Code.
(g) (1) Property used exclusively for rental housing and related
facilities and owned and operated by religious, hospital, scientific,
or charitable funds, foundations, limited liability companies, or
corporations, including limited partnerships in which the managing
general partner or eligible limited liability company is an eligible
nonprofit corporation, meeting all of the requirements of this
section, or by veterans' organizations, as described in Section
215.1, meeting all the requirements of paragraphs (1) to (7),
inclusive, of subdivision (a), shall be deemed to be within the
exemption provided for in subdivision (b) of Section 4 and Section 5
of Article XIII of the California Constitution and this section and
shall be entitled to a partial exemption equal to that percentage of
the value of the property that the portion of the property serving
lower income households represents of the total property in any year
in which either of the following criteria applies:
(A) The acquisition, rehabilitation, development, or operation of
the property, or any combination of these factors, is financed with
tax-exempt mortgage revenue bonds or general obligation bonds, or is
financed by local, state, or federal loans or grants and the rents of
the occupants who are lower income households do not exceed those
prescribed by deed restrictions or regulatory agreements pursuant to
the terms of the financing or financial assistance.
(B) The owner of the property is eligible for and receives
low-income housing tax credits pursuant to Section 42 of the Internal
Revenue Code of 1986, as added by Public Law 99-514.
(C) In the case of a claim, other than a claim with respect to
property owned by a limited partnership in which the managing general
partner is an eligible nonprofit corporation, that is filed for the
2000-01 fiscal year or any fiscal year thereafter, 90 percent or more
of the occupants of the property are lower income households whose
rent does not exceed the rent prescribed by Section 50053 of the
Health and Safety Code. The total exemption amount allowed under this
subdivision to a taxpayer, with respect to a single property or
multiple properties for any fiscal year on the sole basis of the
application of this subparagraph, may not exceed twenty thousand
dollars ($20,000) of tax.
(2) In order to be eligible for the exemption provided by this
subdivision, the owner of the property shall do both of the
following:
(A) (i) For any claim filed for the 2000-01 fiscal year or any
fiscal year thereafter, certify and ensure, subject to the limitation
in clause (ii), that there is an enforceable and verifiable
agreement with a public agency, a recorded deed restriction, or other
legal document that restricts the project's usage and that provides
that the units designated for use by lower income households are
continuously available to or occupied by lower income households at
rents that do not exceed those prescribed by Section 50053 of the
Health and Safety Code, or, to the extent that the terms of federal,
state, or local financing or financial assistance conflicts with
Section 50053, rents that do not exceed those prescribed by the terms
of the financing or financial assistance.
(ii) In the case of a limited partnership in which the managing
general partner is an eligible nonprofit corporation, the restriction
and provision specified in clause (i) shall be contained in an
enforceable and verifiable agreement with a public agency, or in a
recorded deed restriction to which the limited partnership certifies.
(B) Certify that the funds that would have been necessary to pay
property taxes are used to maintain the affordability of, or reduce
rents otherwise necessary for, the units occupied by lower income
households.
(3) As used in this subdivision, "lower income households" has the
same meaning as the term "lower income households" as defined by
Section 50079.5 of the Health and Safety Code.
(h) Property used exclusively for an emergency or temporary
shelter and related facilities for homeless persons and families and
owned and operated by religious, hospital, scientific, or charitable
funds, foundations, limited liability companies, or corporations
meeting all of the requirements of this section shall be deemed to be
within the exemption provided for in subdivision (b) of Section 4
and Section 5 of Article XIII of the California Constitution and this
section. Property that otherwise would be exempt pursuant to this
subdivision, except that it includes housing and related facilities
for other than an emergency or temporary shelter, shall be entitled
to a partial exemption.
As used in this subdivision, "emergency or temporary shelter"
means a facility that would be eligible for funding pursuant to
Chapter 11 (commencing with Section 50800) of Part 2 of Division 31
of the Health and Safety Code.
(i) Property used exclusively for housing and related facilities
for employees of religious, charitable, scientific, or hospital
organizations that meet all the requirements of subdivision (a) and
owned and operated by funds, foundations, limited liability
companies, or corporations that meet all the requirements of
subdivision (a) shall be deemed to be within the exemption provided
for in subdivision (b) of Section 4 and Section 5 of Article XIII of
the California Constitution and this section to the extent the
residential use of the property is institutionally necessary for the
operation of the organization.
(j) For purposes of this section, charitable purposes include
educational purposes. For purposes of this subdivision, "educational
purposes" means those educational purposes and activities for the
benefit of the community as a whole or an unascertainable and
indefinite portion thereof, and do not include those educational
purposes and activities that are primarily for the benefit of an
organization's shareholders. Educational activities include the study
of relevant information, the dissemination of that information to
interested members of the general public, and the participation of
interested members of the general public.
(k) In the case of property used exclusively for the exempt
purposes specified in this section, owned and operated by limited
liability companies that are organized and operated for those
purposes, the State Board of Equalization shall adopt regulations to
specify the ownership, organizational, and operational requirements
for those companies to qualify for the exemption provided by this
section.
(l) The amendments made by Chapter 354 of the Statutes of 2004
shall apply with respect to lien dates occurring on and after January
1, 2005.
SEC. 179. Section 217 of the Revenue and Taxation Code is amended
to read:
217.
(a) Except as provided in subdivision (d), the following articles
of personal property that have been made available for display in a
publicly owned art gallery or museum, or a museum that is regularly
open to the public and that is operated by a nonprofit organization
that qualifies for exemption pursuant to Section 23701d, shall be
exempt from taxation:
(1) Original paintings in oil, mineral, water, vitreous enamel, or
other colors, pastels, original mosaics, original drawings and
sketches in pen, ink, pencil, or watercolors, or works of the free
fine arts in any other media including applied paper and other
materials, manufactured or otherwise, that are used on collages,
artists' proof etchings unbound, and engravings and woodcuts unbound,
lithographs, or prints made by other hand transfer processes
unbound, or original sculptures or statuary. As used in this
subdivision:
(A) "Sculpture" and "statuary" shall include professional
productions of sculptors only whether in round or in relief, in
bronze, marble, stone, terra cotta, ivory, wood, metal, or other
materials, or whether cut, carved, or otherwise wrought by hand from
the solid block or mass of marble, stone, alabaster, or from metal,
or other materials, or cast in bronze or other metal or substance, or
from wax or plaster, or constructed from any material or made in any
form as the professional productions of sculptors, only.
(B) "Original" when used to modify the words "sculptures"
and "statuary" shall include the original work or model and the first
10 castings, replicas, or reproductions made from the sculptor's
original work or model, with or without a change in scale, regardless
of whether or not the sculptor is alive at the time the castings,
replicas, or reproductions are completed.
(C) "Painting," "mosaic," "drawing," "work of the free fine arts,"
"sketch," "sculpture," and "statuary" shall not include any articles
of utility, articles designed for industrial use, or any articles
that are made wholly or in part by stenciling or any other mechanical
process.
(D) "Etchings," "engravings," "woodcuts," "lithographs," or
"prints made by other hand transfer processes," shall include only
works that are printed by hand from plates, stones or blocks etched,
drawn, or engraved with handtools and do not include works that are
printed from plates, stones or blocks etched, drawn, or engraved by
photochemical or other mechanical processes.
(2) Original works of the free fine arts, that are not described
in paragraph (1), are subject to regulations, as the board may
prescribe, to prove that the article represents some school, kind, or
medium of the free fine arts. As used in this paragraph, "original
works of the free fine arts" shall not include any article of utility
or any article designed for industrial use.
(b) When making a claim for an exemption pursuant to this section,
a person claiming the exemption shall provide all information
required and answer all questions in an affidavit, under penalty of
perjury. The assessor may require other proof of the facts stated
before allowing the exemption. The affidavit shall be accompanied by
a certificate of the director or other officer of the art gallery or
museum in which the property for which an exemption is claimed under
this section was made available for display that the property was
available for public display in the art gallery or museum for the
period specified in subdivision (e).
(c) Sections 255 and 260 shall be applicable to the exemption
provided by this section.
(d) The exemption provided by subdivision (a) shall not apply to
any work of art loaned by any person who holds works of art primarily
for purposes of sale.
(e) The exemption provided by this section shall not apply unless
the property was made available for public display in the art gallery
or museum for a period of 90 days during the 12-month period
immediately preceding the lien date for the year for which the
exemption is claimed.
If the property was first made available for public display less
than 90 days prior to the lien date, the exemption may be granted if
the person claiming the exemption certifies in writing that the
property will be made available for public display for at least 90
days during the 12-month period commencing with the first day the
property was made available for public display.
(f) For purposes of this section, "regularly open to the public"
means that the gallery or museum was open to the public not less than
20 hours per week for not less than 35 weeks of the 12-month period
immediately preceding the lien date for the year for which the
exemption is claimed.
If the gallery or museum has been open for less than 35 weeks
during the 12-month period immediately preceding the lien date or for
less than 20 hours per week during that period, the exemption may be
granted if the director or other officer of the gallery or museum
certifies in writing that the gallery or museum will be open for not
less than 20 hours per week for not less than 35 weeks during the
12-month period beginning with the day the gallery or museum was
first opened.
(g) If a person certifies in writing that the property will be
made available and the gallery or museum open for the periods
specified in subdivisions (e) and (f), and the property is not so
made available or the gallery or museum is not so opened, the
exemption shall be canceled, and an escape assessment may be made as
provided in Section 531.1.
SEC. 180. Section 2508 of the Revenue and Taxation Code is amended
to read:
2508.
If any negotiable paper is returned unpaid to the bank with which
it was deposited pursuant to any requirement of this division, the
bank shall return it to the officer who deposited it and, if its
amount has been included in any cashier's check given by the bank,
the bank is entitled to a refund in the amount of the unpaid
negotiable paper. Any negotiable paper redeemed by or charged back to
the county treasurer by reason of nonpayment shall be returned to
the officer who deposited it in exchange for currency or other
negotiable paper or for the warrant of the county auditor drawn on
the fund into which the original deposit was made.
SEC. 181. Section 3811 of the Revenue and Taxation Code is amended
to read:
3811.
On execution of the deed to the taxing agency or nonprofit
organization, the tax collector shall report the following to the
Controller, the assessor, and the auditor:
(a) The name of the purchaser.
(b) The effective date of the sale and the date of the transfer of
the deed to the taxing agency or nonprofit organization.
(c) The amount for which the property was sold.
(d) The description of the property conveyed.
SEC. 182. Section 7105 of the Revenue and Taxation Code is amended
to read:
7105.
(a) The Transportation Deferred Investment Fund is hereby created
in the State Treasury.
(b) On or before June 30, 2009, the Controller shall transfer an
amount from the General Fund to the Transportation Deferred
Investment Fund that is equal to the amount that was not transferred
from the General Fund to the Transportation Investment Fund for the
2003-04 fiscal year because of the partial suspension of the transfer
pursuant to Section 14557 of the Government Code, plus interest
calculated at the Pooled Money Investment Account rate relative to
the amounts that would otherwise have been available for the
transportation programs described in paragraphs (2) to (5),
inclusive, of subdivision (c) of Section 7104. The amount to be
transferred from the General Fund to the Transportation Deferred
Investment Fund shall be reduced by the amount of any payment made to
the Transportation Deferred Investment Fund from any funding source,
excluding subdivision (d). The moneys deposited in the
Transportation Deferred Investment Fund pursuant to this subdivision
is continuously appropriated without regard to fiscal years for
disbursement in the manner and for the purposes set forth in this
section.
(c) The Controller, from the moneys deposited in the
Transportation Deferred Investment Fund pursuant to subdivision (b),
shall make transfers and apportionments of those funds in the same
manner and amounts that would have been made in the 2003-04 fiscal
year from the Transportation Investment Fund pursuant to Section
7104, as that section read on January 1, 2003, if the transfer of
funds from the General Fund to the Transportation Investment Fund had
not been partially suspended for the 2003-04 fiscal year pursuant to
Section 14557 of the Government Code. However, in making those
transfers and apportionments, the Controller shall take into account
and deduct therefrom any transfers and apportionments that were made
from the Transportation Investment Fund in the 2003-04 fiscal year
from funds made available pursuant to subdivision (b) of Section
14557 of the Government Code. It is the intent of the Legislature
that, upon completion of the transfer of funds pursuant to
subdivision (b) from the General Fund to the Transportation Deferred
Investment Fund, each of the transportation programs that was to have
been funded during the 2003-04 fiscal year from the Transportation
Investment Fund pursuant to Section 7104 of this code shall have
received the amount of funding that the program would have received
in the absence of the suspension of the transfer pursuant to Section
14557 of the Government Code.
(d) To the extent that funds are provided under clauses (iii) and
(v) of subparagraph (A) of paragraph (1) of subdivision (c) of
Section 63048.65 of the Government Code to the Traffic Congestion
Relief Fund for apportionment pursuant to subparagraphs (B) and (C)
of paragraph (2) of subdivision (c) of Section 7104, paragraph (4) of
subdivision (c) of Section 7104, and paragraph (5) of subdivision
(c) of Section 7104, the Controller shall deduct an equal amount from
any transfer of funds from the Transportation Deferred Investment
Fund made for those apportionments and transfer that amount instead
to the Traffic Congestion Relief Fund.
(e) The interest that is to be deposited in the Transportation
Deferred Investment Fund pursuant to subdivision (b) shall be
allocated proportionately to each program element in paragraphs (2)
to (5), inclusive, of subdivision (c) of Section 7104, based on the
amount that each program did not receive in the 2003-04 fiscal year
due to suspension of the transfer pursuant to Section 14557 of the
Government Code.
(f) The Legislature finds and declares that continued investment
in transportation is essential for the California economy. That
investment reduces traffic congestion, assists in economic
development, improves the condition of local streets and roads, and
provides high-quality public transportation.
SEC. 183. Section 17041 of the Revenue and Taxation Code is
amended to read:
17041.
(a) There shall be imposed for each taxable year upon the entire
taxable income of every resident of this state who is not a part-year
resident, except the head of a household as defined in Section
17042, taxes in the following amounts and at the following rates upon
the amount of taxable income computed for the taxable year as if the
resident were a resident of this state for the entire taxable year
and for all prior taxable years for any carryover items, deferred
income, suspended losses, or suspended deductions:
If the taxable income The tax is:
is:
Not over $3,650........ 1% of the taxable income
Over $3,650 but $36.50 plus 2% of the
not excess
over $8,650............
over $3,650
Over $8,650 but $136.50 plus 4% of the
not excess
over $13,650...........
over $8,650
Over $13,650 but $336.50 plus 6% of the
not excess
over $18,950...........
over $13,650
Over $18,950 but $654.50 plus 8% of the
not excess
over $23,950...........
over $18,950
$1,054.50 plus 9.3% of
Over $23,950..... the excess
over $23,950
(b) (1) There shall be imposed for each taxable year upon the
taxable income of every nonresident or part-year resident, except the
head of a household as defined in Section 17042, a tax as calculated
in paragraph (2).
(2) The tax imposed under paragraph (1) shall be calculated by
multiplying the "taxable income of a nonresident or part-year
resident," as defined in subdivision (i), by a rate (expressed as a
percentage) equal to the tax computed under subdivision (a) on the
entire taxable income of the nonresident or part-year resident as if
the nonresident or part-year resident were a resident of this state
for the taxable year and as if the nonresident or part-year resident
were a resident of this state for all prior taxable years for any
carryover items, deferred income, suspended losses, or suspended
deductions, divided by the amount of that income.
(c) There shall be imposed for each taxable year upon the entire
taxable income of every resident of this state who is not a part-year
resident for that taxable year, when the resident is the head of a
household, as defined in Section 17042, taxes in the following
amounts and at the following rates upon the amount of taxable income
computed for the taxable year as if the resident were a resident of
the state for the entire taxable year and for all prior taxable years
for carryover items, deferred income, suspended losses, or suspended
deductions:
If the taxable income The tax is:
is:
Not over $7,300......... 1% of the taxable income
Over $7,300 but $73 plus 2% of the
not excess
over $17,300............ over $7,300
Over $17,300 but $273 plus 4% of the
not excess
over $22,300............ over $17,300
Over $22,300 but $473 plus 6% of the
not excess
over $27,600............ over $22,300
Over $27,600 but $791 plus 8% of
not the
over $32,600............ excess
over $27,600
$1,191 plus 9.3% of the
Over $32,600............ excess
over $32,600
(d) (1) There shall be imposed for each taxable year upon the
taxable income of every nonresident or part-year resident when the
nonresident or part-year resident is the head of a household, as
defined in Section 17042, a tax as calculated in paragraph (2).
(2) The tax imposed under paragraph (1) shall be calculated by
multiplying the "taxable income of a nonresident or part-year
resident," as defined in subdivision (i), by a rate (expressed as a
percentage) equal to the tax computed under subdivision (c) on the
entire taxable income of the nonresident or part-year resident as if
the nonresident or part-year resident were a resident of this state
for the taxable year and as if the nonresident or part-year resident
were a resident of this state for all prior taxable years for any
carryover items, deferred income, suspended losses, or suspended
deductions, divided by the amount of that income.
(e) There shall be imposed for each taxable year upon the taxable
income of every estate, trust, or common trust fund taxes equal to
the amount computed under subdivision (a) for an individual having
the same amount of taxable income.
(f) The tax imposed by this part is not a surtax.
(g) (1) Section 1(g) of the Internal Revenue Code, relating to
certain unearned income of minor children taxed as if the parent's
income, shall apply, except as otherwise provided.
(2) Section 1(g)(7)(B)(ii)(II) of the Internal Revenue Code,
relating to income included on parent's return, is modified, for
purposes of this part, by substituting "1 percent" for "15 percent."
(h) For each taxable year beginning on or after January 1, 1988,
the Franchise Tax Board shall recompute the income tax brackets
prescribed in subdivisions (a) and (c). That computation shall be
made as follows:
(1) The California Department of Industrial Relations shall
transmit annually to the Franchise Tax Board the percentage change in
the California Consumer Price Index for all items from June of the
prior calendar year to June of the current calendar year, no later
than August 1 of the current calendar year.
(2) The Franchise Tax Board shall do both of the following:
(A) Compute an inflation adjustment factor by adding 100 percent
to the percentage change figure that is furnished pursuant to
paragraph (1) and dividing the result by 100.
(B) Multiply the preceding taxable year income tax brackets by the
inflation adjustment factor determined in subparagraph (A) and round
off the resulting products to the nearest one dollar ($1).
(i) (1) For purposes of this part, the term "taxable income of a
nonresident or part-year resident" includes each of the following:
(A) For any part of the taxable year during which the taxpayer was
a resident of this state (as defined by Section 17014), all items of
gross income and all deductions, regardless of source.
(B) For any part of the taxable year during which the taxpayer was
not a resident of this state, gross income and deductions derived
from sources within this state, determined in accordance with Article
9 of Chapter 3 (commencing with Section 17301) and Chapter 11
(commencing with Section 17951).
(2) For purposes of computing "taxable income of a nonresident or
part-year resident" under paragraph (1), the amount of any net
operating loss sustained in any taxable year during any part of which
the taxpayer was not a resident of this state shall be limited to
the sum of the following:
(A) The amount of the loss attributable to the part of the taxable
year in which the taxpayer was a resident.
(B) The amount of the loss which, during the part of the taxable
year the taxpayer is not a resident, is attributable to California
source income and deductions allowable in arriving at taxable income
of a nonresident or part-year resident.
(3) For purposes of computing "taxable income of a nonresident or
part-year resident" under paragraph (1), any carryover items,
deferred income, suspended losses, or suspended deductions shall only
be includable or allowable to the extent that the carryover item,
deferred income, suspended loss, or suspended deduction was derived
from sources within this state, calculated as if the nonresident or
part-year resident, for the portion of the year he or she was a
nonresident, had been a nonresident for all prior years.
SEC. 184. Section 17052.6 of the Revenue and Taxation Code is
amended to read:
17052.6.
(a) For each taxable year beginning on or after January 1, 2000,
there shall be allowed as a credit against the "net tax" (as defined
in Section 17039) an amount determined in accordance with Section 21
of the Internal Revenue Code, as modified by the Economic Growth and
Tax Relief Reconciliation Act of 2001 (P.L. 107-16), except that the
amount of the credit shall be a percentage, as provided in
subdivision (b), of the allowable federal credit without taking into
account whether there is a federal tax liability.
(b) For the purposes of subdivision (a), the percentage of the
allowable federal credit shall be determined as follows:
(1) For taxable years beginning before January 1, 2003:
The percentage of
If the adjusted gross income
is: credit is:
$40,000 or less.............. 63%
Over $40,000 but not over 53%
$70,000......................
Over $70,000 but not over 42%
$100,000.....................
Over $100,000................ 0%
(2) For taxable years beginning on or after January 1, 2003:
The percentage of
If the adjusted gross income
is: credit is:
$40,000 or less.............. 50%
Over $40,000 but not over 43%
$70,000......................
Over $70,000 but not over 34%
$100,000.....................
Over $100,000................ 0%
(c) In the case of a taxpayer whose credits provided under this
section exceed the taxpayer's tax liability computed under this part,
the excess shall be credited against other amounts due, if any, from
the taxpayer and the balance, if any, shall be paid from the Tax
Relief and Refund Account and refunded to the taxpayer.
(d) For purposes of this section, adjusted gross income means
adjusted gross income as computed for purposes of paragraph (2) of
subdivision (h) of Section 17024.5.
(e) The credit authorized by this section shall be limited to
employment-related expenses, within the meaning of Section 21 of the
Internal Revenue Code, but only for child care services or care
provided in this state and only to the extent of earned income
(within the meaning of Section 21(d) of the Internal Revenue Code)
from sources within this state.
(f) For purposes of this section, Section 21(b)(1) of the Internal
Revenue Code, relating to a qualifying individual, is modified to
additionally provide that a child (as defined in Section 151(c)(3) of
the Internal Revenue Code) shall be treated, for purposes of Section
152 of the Internal Revenue Code (as applicable for purposes of this
section), as receiving over one-half of his or her support during
the calendar year from the parent having custody for a greater
portion of the calendar year, that parent shall be treated as a
"custodial parent" (within the meaning of Section 152(e) of the
Internal Revenue Code, as applicable for purposes of this section),
and the child shall be treated as a qualifying individual under
Section 21(b)(1) of the Internal Revenue Code, as applicable for
purposes of this section, if both of the following apply:
(1) The child receives over one-half of his or her support during
the calendar year from his or her parents who never married each
other and who lived apart at all times during the last six months of
the calendar year.
(2) The child is in the custody of one or both of his or her
parents for more than one-half of the calendar year.
(g) The amendments to this section made by Chapter 757 of the
Statutes of 2002 shall apply only to taxable years beginning on or
after January 1, 2002.
SEC. 185. Section 18648 of the Revenue and Taxation Code is
amended to read:
18648.
(a) Section 6112 of the Internal Revenue Code, relating to
organizers and sellers of potentially abusive tax shelters that must
keep lists of investors, applies except as otherwise provided.
(b) Section 6112 of the Internal Revenue Code is modified by
substituting the phrase "Secretary or the Franchise Tax Board" for
the word "Secretary" each place it appears.
(c) The requirement to maintain lists under this section shall
apply to any organizer, seller, or material advisor of a potentially
abusive tax shelter (within the meaning of Section 6112 of the
Internal Revenue Code, as modified by this section) that additionally
satisfies any of the following conditions:
(1) Organized in this state.
(2) Doing business in this state.
(3) Deriving income from sources in this state.
(4) At least one of its investors is a California taxpayer.
(d) (1) Notwithstanding any regulation issued under Section 6112
of the Internal Revenue Code, the list required to be maintained by
this section for listed transactions, as defined in subdivision (a)
of Section 18407, shall be maintained in the form and manner
prescribed by the Franchise Tax Board.
(2) Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code does not apply to any
requirement prescribed by the Franchise Tax Board under this section.
(3) For transactions entered into on or after February 28, 2000,
that become listed transactions (as defined under Section 6011(a) of
the Internal Revenue Code) at any time, the lists shall be provided
to the Franchise Tax Board by the later of:
(A) Sixty days after entering into the transaction.
(B) Sixty days after the transaction becomes a listed transaction.
(C) April 30, 2004.
(4) For transactions entered into on or after September 2, 2003,
that are specifically identified by the Franchise Tax Board for
California income or franchise tax purposes (under the authority of
paragraph (4) of subdivision (a) of Section 18407) as a "listed
transaction" at any time, the list shall be provided to the Franchise
Tax Board by the later of:
(A) Sixty days after entering into the transaction.
(B) Sixty days after the transaction becomes a listed transaction.
(C) April 30, 2004.
(e) The terms "organizer," "seller," and "material advisor" mean a
person that meets any of the requirements of this section or of
Section 6112 of the Internal Revenue Code or regulations issued
thereunder.
SEC. 186. Section 18706 of the Revenue and Taxation Code is
amended to read:
18706.
There is in the State Treasury the California Military Family
Relief Fund to receive contributions made pursuant to Section 18705.
The Franchise Tax Board shall notify the Controller of both the
amount of money paid by taxpayers in excess of their tax liability
and the amount of refund money that taxpayers have designated
pursuant to Section 18705 to be transferred to the California
Military Family Relief Fund. The Controller shall transfer from the
Personal Income Tax Fund to the California Military Family Relief
Fund an amount not in excess of the sum of the amounts designated by
individuals pursuant to Section 18705 for payment into that fund. The
California Military Family Relief Fund shall also accept
contributions from sources other than the tax form, at any time.
SEC. 187. Section 19164 of the Revenue and Taxation Code is
amended to read:
19164.
(a) (1) (A) An accuracy-related penalty shall be imposed under
this part and shall be determined in accordance with Section 6662 of
the Internal Revenue Code, relating to imposition of accuracy-related
penalty, except as otherwise provided.
(B) (i) Except for understatements relating to tax shelter items
to which paragraph (5) applies, in the case of any proposed
deficiency assessment issued after the last date of the amnesty
period specified in Chapter 9.1 (commencing with Section 19730) for
any taxable year beginning prior to January 1, 2003, the penalty
specified in Section 6662(a) of the Internal Revenue Code shall be
computed by substituting "40 percent" for "20 percent."
(ii) Clause (i) shall not apply to any taxable year of a taxpayer
beginning prior to January 1, 2003, if, as of the start date of the
amnesty program period specified in Section 19731, the taxpayer is
then under audit by the Franchise Tax Board, or the taxpayer has
filed a protest under Section 19041, or the taxpayer has filed an
appeal under Section 19045, or the taxpayer is engaged in settlement
negotiations under Section 19442, or the taxpayer has a pending
judicial proceeding in any court of this state or in any federal
court relating to the tax liability of the taxpayer for that taxable
year.
(2) With respect to corporations, this subdivision shall apply to
all of the following:
(A) All taxable years beginning on or after January 1, 1990.
(B) Any other taxable year for which an assessment is made after
July 16, 1991.
(C) For purposes of this section, references in Section 6662(e) of
the Internal Revenue Code and the regulations thereunder, relating
to treatment of an affiliated group that files a consolidated federal
return, are modified to apply to those entities required to be
included in a combined report under Section 25101 or 25110. For these
purposes, entities included in a combined report
pursuant to paragraph (4) or (6) of
subdivision (a) of Section 25110 shall be considered only to the
extent required to be included in the combined report.
(3) Section 6662(d)(1)(B) of the Internal Revenue Code is modified
to provide that in the case of a corporation, other than an "S"
corporation, that has been contacted by the Franchise Tax Board
regarding the use of a potentially abusive tax shelter (within the
meaning of Section 19777), there is a substantial understatement of
tax for any taxable year if the amount of the understatement for the
taxable year exceeds the lesser of:
(A) Ten percent of the tax required to be shown on the return for
the taxable year (or, if greater, two thousand five hundred dollars
($2,500)).
(B) Five million dollars ($5,000,000).
(4) Section 6662(d)(2)(A) of the Internal Revenue Code is modified
to additionally provide that the excess determined under Section
6662(d)(2)(A) of the Internal Revenue Code shall be determined
without regard to items to which Section 19773 applies and without
regard to items with respect to which a penalty is imposed by Section
19774.
(5) For taxpayers that have been contacted by the Franchise Tax
Board regarding the use of a potentially abusive tax shelter (within
the meaning of Section 19777), Section 6662(d)(2)(B)(i) of the
Internal Revenue Code is modified to substitute the phrase "the tax
treatment of any item by the taxpayer if the taxpayer had reasonable
belief that the tax treatment was more likely than not the proper
treatment" for the phrase "the tax treatment of any item by the
taxpayer if there is or was substantial authority for such treatment"
contained therein.
(b) For purposes of Section 6662(d) of the Internal Revenue Code,
Section 6664 of the Internal Revenue Code (as modified by subdivision
(d)), Section 6694(a)(1) of the Internal Revenue Code, and this
part, the Franchise Tax Board may prescribe a list of positions for
which the Franchise Tax Board believes there is not substantial
authority or there is no reasonable belief that the tax treatment is
more likely than not the proper tax treatment. That list (and any
revisions thereof) shall be published through the use of Franchise
Tax Board Notices or other published positions. In addition, the
"listed transactions" identified and published pursuant to the
preceding sentence shall be published on the Web site of the
Franchise Tax Board. This subdivision applies only to a list of
positions relating to abusive tax shelters, within the meaning of
Section 19777.
(c) A fraud penalty shall be imposed under this part and shall be
determined in accordance with Section 6663 of the Internal Revenue
Code, relating to imposition of fraud penalty, except as otherwise
provided.
(d) Section 6664 of the Internal Revenue Code, relating to
definitions and special rules, shall apply, except as otherwise
provided.
(1) For taxpayers that have been contacted by the Franchise Tax
Board regarding the use of a potentially abusive tax shelter (within
the meaning of Section 19777), Section 6664 of the Internal Revenue
Code is modified to additionally provide that no penalty shall be
imposed under Section 19773 with respect to any portion of a
reportable transaction understatement if it is shown that there was a
reasonable cause for that portion and that the taxpayer acted in
good faith with respect to that portion.
(2) Paragraph (1) does not apply to any reportable transaction
understatement unless all of the following requirements are met:
(A) (i) The relevant facts affecting the tax treatment of the item
are adequately disclosed in accordance with the regulations
prescribed under Section 6011 of the Internal Revenue Code, as
modified by Section 18407.
(ii) A taxpayer failing to adequately disclose in accordance with
Section 6011 of the Internal Revenue Code, as modified by Section
18407, shall be treated as meeting the requirements of this
subparagraph, if the penalty for that failure was rescinded under
subdivision (e) of Section 19772.
(iii) For taxable years beginning on or before January 1, 2003,
"adequately disclosed" includes the disclosure of the tax shelter
identification number on the taxpayer's return, as required by
subdivision (c) of Section 18628.
(B) There is or was substantial authority for that treatment.
(C) The taxpayer reasonably believed that treatment was more
likely than not the proper treatment.
(3) For purposes of subparagraph (C) of paragraph (2) all of the
following shall apply:
(A) A taxpayer shall be treated as having a reasonable belief with
respect to the tax treatment of an item only if that belief meets
both of the following requirements:
(i) Is based on the facts and law that exist at the time the
return of tax that includes that tax treatment is filed.
(ii) Relates solely to the taxpayer's chances of success on the
merits of that treatment and does not take into account the
possibility that the return will not be audited, that the treatment
will not be raised on audit, or that the treatment will be resolved
through settlement if it is raised.
(B) (i) An opinion of a tax advisor may not be relied upon to
establish the reasonable belief of a taxpayer if either of the
following conditions are met:
(I) The tax advisor is described in clause (ii).
(II) The opinion is described in clause (iii).
(ii) A tax advisor is described in this clause if the tax advisor
meets any of the following conditions:
(I) Is a material advisor (within the meaning of subdivision (d)
of Section 18648) who participates in the organization, management,
promotion, or sale of the transaction or who is related (within the
meaning of Section 267(b) or 707(b)(1) of the Internal Revenue Code)
to any person who so participates.
(II) Is compensated directly or indirectly by a material advisor
with respect to the transaction.
(III) Has a fee arrangement with respect to the transaction that
is contingent on all or part of the intended tax benefits from the
transaction being sustained.
(IV) As determined under regulations prescribed by either the
Secretary of the Treasury for federal income tax purposes or the
Franchise Tax Board, has a continuing financial interest with respect
to the transaction.
(iii) For purposes of clause (i), an opinion is disqualified if
the opinion meets any of the following conditions:
(I) Is based on unreasonable, factual, or legal assumptions
(including assumptions as to future events).
(II) Unreasonably relies on representations, statements, findings,
or agreements of the taxpayer or any other person.
(III) Does not identify and consider all relevant facts.
(IV) Fails to meet any other requirement as either the Secretary
of the Treasury for federal income tax purposes or the Franchise Tax
Board may by forms and instructions prescribe.
(e) Section 6665 of the Internal Revenue Code, relating to
applicable rules, shall apply, except as otherwise provided.
(f) For taxpayers that have been contacted by the Franchise Tax
Board regarding the use of a potentially abusive tax shelter (within
the meaning of Section 19777), Section 461(i)(3)(C) of the Internal
Revenue Code is modified by substituting a reference to "Section 1274
(b)(3)(B) of the Internal Revenue Code, as modified by subdivision
(g) of Section 19164" instead of the reference to "Section 6662(d)(2)
(C)(iii)" contained therein.
(g) For taxpayers that have been contacted by the Franchise Tax
Board regarding the use of a potentially abusive tax shelter (within
the meaning of Section 19777), Section 1274(b)(3)(B)(i) of the
Internal Revenue Code is modified to provide that for purposes of
Section 1274(b)(3)(B) of the Internal Revenue Code, the term "tax
shelter" means (1) a partnership or other entity, (2) any investment
plan or arrangement, or (3) any other plan or arrangement, if a
significant purpose of the partnership, entity, plan, or arrangement
is the avoidance or evasion of federal income tax or the tax imposed
under Part 10 (commencing with Section 17001) or Part 11 (commencing
with Section 23001).
SEC. 188. Section 20583 of the Revenue and Taxation Code is
amended to read:
20583.
(a) "Residential dwelling" means a dwelling occupied as the
principal place of residence of the claimant, and so much of the land
surrounding it as is reasonably necessary for use of the dwelling as
a home, owned by the claimant, the claimant and spouse, or by the
claimant and either another individual eligible for postponement
under this chapter or an individual described in subdivision (a),
(b), or (c) of Section 20511 and located in this state. It shall
include condominiums and mobilehomes that are assessed as realty for
local property tax purposes. It also includes part of a multidwelling
or multipurpose building and a part of the land upon which it is
built. In the case of a mobilehome not assessed as real property that
is located on land owned by the claimant, "residential dwelling"
includes the land on which the mobilehome is situated and so much of
the land surrounding it as reasonably necessary for use of the
mobilehome as a home.
(b) As used in this chapter in reference to ownership interests in
residential dwellings, "owned" includes (1) the interest of a vendee
in possession under a land sale contract provided that the contract
or memorandum thereof is recorded and only from the date of
recordation of the contract or memorandum thereof in the office of
the county recorder where the residential dwelling is located, (2)
the interest of the holder of a life estate provided that the
instrument creating the life estate is recorded and only from the
date of recordation of the instrument creating the life estate in the
office of the county recorder where the residential dwelling is
located, but "owned" does not include the interest of the holder of
any remainder interest or the holder of a reversionary interest in
the residential dwelling, (3) the interest of a joint tenant or a
tenant in common in the residential dwelling or the interest of a
tenant where title is held in tenancy by the entirety or a community
property interest where title is held as community property, and (4)
the interest in the residential dwelling in which the title is held
in trust, as described in subdivision (d) of Section 62, provided
that the Controller determines that the state's interest is
adequately protected.
(c) For purposes of this chapter, the registered owner of a
mobilehome shall be deemed to be the owner of the mobilehome.
(d) Except as provided in subdivision (c), and Chapter 3
(commencing with Section 20625), ownership must be evidenced by an
instrument duly recorded in the office of the county where the
residential dwelling is located.
(e) "Residential dwelling" does not include any of the following:
(1) Any residential dwelling in which the owners do not have an
equity of at least 20 percent of the full value of the property as
determined for purposes of property taxation or at least 20 percent
of the fair market value as determined by the Controller and where
the Controller determines that the state's interest is adequately
protected. The 20-percent equity requirement shall be met at the time
the claimant or authorized agent files an initial postponement claim
and tenders to the tax collector the initial certificate of
eligibility described in Sections 20602, 20639.6, and 20640.6.
(2) Any residential dwelling in which the claimant's interest is
held pursuant to a contract of sale or under a life estate, unless
the claimant obtains the written consent of the vendor under the
contract of sale, or the holder of the reversionary interest upon
termination of the life estate, for the postponement of taxes and the
creation of a lien on the real property in favor of the state for
amounts postponed pursuant to this act.
(3) Any residential dwelling on which the claimant does not
receive a secured tax bill.
(4) Any residential dwelling in which the claimant's interest is
held as a possessory interest, except as provided in Chapter 3.5
(commencing with Section 20640).
(5) (A) Except as provided in this section, any residential
dwelling on which the property taxes, as defined in Section 20584,
are delinquent at the time the application for postponement under
this chapter is made or on which any other property tax or special
assessment imposed by a special district or other tax code area is
delinquent at the time the application for postponement under this
chapter is made.
(B) Any taxes or assessments described in subparagraph (A) that
are delinquent on July 1, 1977, will not disqualify an otherwise
eligible dwelling for postponement under this chapter. An application
for postponement under this chapter to postpone the payment of
property taxes for the 1977-78 fiscal year, shall also constitute an
application for the postponement of all those delinquent taxes and
assessments, together with any penalties, interest, fees, or other
charges resulting from that delinquency and those amounts shall,
unless otherwise paid by the claimant, be paid out of the amount
appropriated by Section 16100 of the Government Code and shall be
added to and become part of the obligation secured by the lien
provided by Section 16182 of the Government Code; provided, however,
that upon payment of delinquent taxes and assessments for the 1976-77
fiscal year out of the amount appropriated by Section 16100, any
delinquent penalties, interest, fees or other charges resulting from
the delinquency of those taxes and assessments for the 1976-77 fiscal
year shall be canceled.
(C) For the 1978-79 fiscal year and each fiscal year thereafter,
any taxes or assessments described in subparagraph (A) that became
delinquent after the claimant was 62 and before the claimant first
has established a lien pursuant to Section 16182 of the Government
Code will not disqualify an otherwise eligible dwelling for
postponement under this chapter. An application to postpone taxes for
the 1978-79 fiscal year or for any fiscal year thereafter shall also
constitute an application for the postponement of all delinquent
taxes and assessments, together with any penalties, interest, fees,
or other charges resulting from the delinquency and those amounts
shall, unless otherwise paid by the claimant, be paid out of the
amount appropriated by Section 16100 of the Government Code and shall
be added to and become part of the obligation secured by the lien
provided by Section 16182 of the Government Code.
(6) All taxes or assessments described in subparagraph (A) of
paragraph (5) that are delinquent on the date this bill takes effect
will not disqualify an otherwise eligible blind or disabled applicant'
s dwelling from postponement under this chapter. A blind or disabled
citizen's application for postponement of property taxes will not
constitute an application for the postponement of any delinquent
taxes and assessments, or any penalties, interest, fees or other
charges resulting from delinquency. Delinquent taxes of blind or
disabled applicants are not subject to postponement under this
chapter.
SEC. 189. Section 527 of the Streets and Highways Code is amended
to read:
527.
(a) Route 227 is from Route 1 south of Oceano to Route 101 in San
Luis Obispo.
(b) (1) Notwithstanding subdivision (a), the commission may
relinquish to the City of Arroyo Grande the portion of Route 227 that
is located within the city limits of that city, upon terms and
conditions the commission finds to be in the best interests of the
state, including, but not limited to, a condition that the City of
Arroyo Grande maintain within its jurisdiction signs directing
motorists to the continuation of Route 227.
(2) A relinquishment under this subdivision shall become effective
immediately following the recording by the county recorder of the
relinquishment resolution containing the commission's approval of the
terms and conditions of the relinquishment.
(3) On and after the effective date of the relinquishment, both of
the following shall occur:
(A) The portion of Route 227 relinquished under this subdivision
shall cease to be a state highway.
(B) The portion of Route 227 relinquished under this subdivision
may not be considered for future adoption under Section 81.
(c) (1) Notwithstanding subdivision (a), the commission may
relinquish to the City of San Luis Obispo the portion of Route 227
that is located within the city limits of that city, upon terms and
conditions the commission finds to be in the best interests of the
state, including, but not limited to, a condition that the City of
San Luis Obispo maintain within its jurisdiction signs directing
motorists to the continuation of Route 227.
(2) A relinquishment under this subdivision shall become effective
immediately following the recording by the county recorder of the
relinquishment resolution containing the commission's approval of the
terms and conditions of the relinquishment.
(3) On and after the effective date of the relinquishment, both of
the following shall occur:
(A) The portion of Route 227 relinquished under this subdivision
shall cease to be a state highway.
(B) The portion of Route 227 relinquished under this subdivision
may not be considered for future adoption under Section 81.
(4) For the portions of Route 227 that are relinquished, the City
of San Luis Obispo shall maintain within its jurisdiction signs
directing motorists to the continuation of Route 227.
SEC. 190. Section 36705 of the Streets and Highways Code is
amended to read:
36705.
As used in this part:
(a) "Activities" means, but is not limited to, all of the
following:
(1) Providing security services supplemental to those normally
provided by the city.
(2) Maintaining, including irrigating, landscaping.
(3) Providing sanitation, graffiti removal, street and sidewalk
cleaning, and other public services supplemental to those normally
provided by the city.
(4) Marketing, advertising, and promoting economic development,
including the retention and recruitment of businesses and tenants.
(5) Providing managerial services for multifamily residential
businesses.
(6) Providing building inspection and code enforcement services
for multifamily residential businesses supplemental to those normally
provided by the city.
(b) "Assessment" means a levy for the purpose of acquiring,
constructing, installing, or maintaining improvements and promoting
activities which will benefit the properties or businesses located
within a multifamily improvement district.
(c) "Business" means all types of businesses, including, but not
limited to, the operation of multifamily residential properties,
retail stores, commercial properties, financial institutions, and
professional offices.
(d) "City" means a city, county, city and county, or an agency or
entity created pursuant to the Joint Exercise of Powers Act, Article
1 (commencing with Section 6500) of Chapter 5 of Division 7 of Title
1 of the Government Code, the public member agencies of which
includes only cities, counties, or a city and county.
(e) "City council" means the city council of a city or the board
of supervisors of a county, or the agency, commission, or board
created pursuant to a joint powers agreement and which is a city
within the meaning of this part.
(f) "Improvement" means the acquisition, construction,
installation, or maintenance of any tangible property with an
estimated useful life of five years or more, including, but not
limited to:
(1) Parking facilities.
(2) Benches, booths, kiosks, display cases, pedestrian shelters,
signs, and entry monuments.
(3) Trash receptacles.
(4) Street lighting.
(5) Street decorations.
(6) Parks.
(7) Fountains.
(8) Planting areas.
(9) Closing, opening, widening, or narrowing of existing streets.
(10) Facilities or equipment, or both, to enhance the security of
persons and property within the district.
(11) Ramps, sidewalks, plazas, and pedestrian malls.
(12) Rehabilitation or removal of existing structures.
(g) "Management district plan" or "plan" means a proposal as
described in Section 36713.
(h) "Multifamily improvement district," or "district," means a
multifamily improvement district established pursuant to this part.
(i) "Owners' association" means a private nonprofit entity that is
under contract with a city to administer or implement activities and
improvements specified in the management district plan. An owners'
association may be an existing nonprofit entity or a newly formed
nonprofit entity. An owners' association is a private entity and may
not be considered a public entity for any purpose, nor may its board
members or staff be considered to be public officials for any
purpose.
(j) "Property" means real property situated within a multifamily
improvement district.
(k) "Property owner" or "owner" means any person shown as the
owner of land on the last equalized assessment roll or otherwise
known to be the owner of land by the city council. The city council
has no obligation to obtain other information as to the ownership of
land, and its determination of ownership shall be final and
conclusive for the purposes of this part. Wherever this subdivision
requires the signature of the property owner, the signature of the
authorized agent of the property owner shall be sufficient.
(l) "Tenant" means an occupant pursuant to a lease or a rental
agreement of commercial space or a dwelling unit, other than an
owner.
SEC. 191. Section 36733 of the Streets and Highways Code is
amended to read:
36733.
The city council may execute baseline service contracts that would
establish levels of city services that would continue after a
district has been formed.
SEC. 192. Section 36737 of the Streets and Highways Code is
amended to read:
36737.
(a) The city council may, by resolution, determine and declare
that bonds shall be issued to finance the estimated cost of some or
all of the proposed improvements described in the resolution of
formation adopted pursuant to Section 36716, if the resolution of
formation adopted pursuant to that section provides for the issuance
of bonds, under the Improvement Bond Act of 1915 (Division 10
(commencing with Section 8500)) or in conjunction with Marks-Roos
Local Bond Pooling Act of 1985 (Article 4 (commencing with Section
6584) of Chapter 5 of Division 7 of Title 1 of the Government Code).
Either act, as the case may be, shall govern the proceedings relating
to the issuance of bonds, although proceedings under the Improvement
Bond Act of 1915 may be modified by the city council as necessary to
accommodate assessments levied upon business pursuant to this part.
(b) The resolution adopted pursuant to subdivision (a) shall
generally describe the proposed improvements specified in the
resolution of formation adopted pursuant to Section 36716, set forth
the estimated cost of those improvements, specify the number of
annual installments and the fiscal years during which they are to be
collected. The amount of debt service to retire the bonds shall not
exceed the amount of revenue estimated to be raised from assessments
over 20 years.
(c) Notwithstanding any other provision of this part, assessments
levied to pay the principal and interest on any bond issued pursuant
to this section shall not be reduced or terminated if doing so would
interfere with the timely retirement of the debt.
SEC. 193. Section 1052 of the Unemployment Insurance Code is
amended to read:
1052.
Upon receipt of the application the separate account, actual
contribution and benefit experience and payrolls of the predecessor
or that part thereof, as determined by authorized regulations, which
pertains to the organization, trade, or business, or portion thereof
acquired, shall be transferred to the successor employer for the
purpose of determining its rate of contribution after the acquisition
with the same effect for that purpose as if the operations of the
predecessor had at all times been carried on by the successor. The
separate account shall be transferred by the director to the
successor employer and, as of the date of the acquisition, shall
become the separate account or part of the separate account, as the
case may be, of the successor employer, and the benefits thereafter
chargeable to the predecessor employer on account of employment
relating to the transferred organization, trade, or business or
transferred portion thereof prior to the date of the acquisition
shall be charged to the separate account. This section shall not
apply to any acquisition which is determined by the director to have
been made for the purpose of obtaining a more favorable rate of
contributions under Section 977.
SEC. 194. Section 4000.1 of the Vehicle Code, as amended by
Section 3 of Chapter 704 of the Statutes of 2004, is amended to read:
4000.1.
(a) Except as otherwise provided in subdivision (b), (c), or (d)
of this section, or subdivision (b) of Section 43654 of the Health
and Safety Code, the department shall require upon initial
registration, and upon transfer of ownership and registration, of any
motor vehicle subject to Part 5 (commencing with Section 43000) of
Division 26 of the Health and Safety Code, a valid certificate of
compliance or a certificate of noncompliance, as appropriate, issued
in accordance with Section 44015 of the Health and Safety Code.
(b) With respect to new motor vehicles certified pursuant to
Chapter 2 (commencing with Section 43100) of Part 5 of Division 26 of
the Health and Safety Code, the department shall accept a statement
completed pursuant to subdivision (b) of Section 24007 in lieu of the
certificate of compliance.
(c) For purposes of determining the validity of a certificate of
compliance or noncompliance submitted in compliance with the
requirements of this section, the definitions of new and used motor
vehicle contained in Chapter 2 (commencing with Section 39010) of
Part 1 of Division 26 of the Health and Safety Code shall control.
(d) Subdivision (a) does not apply to a transfer of ownership and
registration under any of the following circumstances:
(1) The initial application for transfer is submitted within the
90-day validity period of a smog certificate as specified in Section
44015 of the Health and Safety Code.
(2) The transferor is the parent, grandparent, sibling, child,
grandchild, or spouse of the transferee.
(3) A
motor vehicle registered to a sole proprietorship is transferred to
the proprietor as owner.
(4) The transfer is between companies the principal business of
which is leasing motor vehicles, if there is no change in the lessee
or operator of the motor vehicle or between the lessor and the person
who has been, for at least one year, the lessee's operator of the
motor vehicle.
(5) The transfer is between the lessor and lessee of the motor
vehicle, if there is no change in the lessee or operator of the motor
vehicle.
(6) The motor vehicle was manufactured prior to the 1976
model-year.
(7) Beginning January 1, 2005, the transfer is for a motor vehicle
that is four or less model-years old. The department shall impose a
fee of eight dollars ($8) on the transferee of a motor vehicle that
is four or less model-years old. Revenues generated from the
imposition of that fee shall be deposited into the Vehicle Inspection
and Repair Fund.
(e) The State Air Resources Board, under Part 5 (commencing with
Section 43000) of Division 26 of the Health and Safety Code, may
exempt designated classifications of motor vehicles from subdivision
(a) as it deems necessary, and shall notify the department of that
action.
(f) Subdivision (a) does not apply to a motor vehicle when an
additional individual is added as a registered owner of the motor
vehicle.
(g) For purposes of subdivision (a), any collector motor vehicle,
as defined in Section 259, is exempt from those portions of the test
required by subdivision (f) of Section 44012 of the Health and Safety
Code, if the collector motor vehicle meets all of the following
criteria:
(1) Submission of proof that the motor vehicle is insured as a
collector motor vehicle, as shall be required by regulation of the
bureau.
(2) The motor vehicle is at least 35 model-years old.
(3) The motor vehicle complies with the exhaust emissions
standards for that motor vehicle's class and model year as prescribed
by the department, and the motor vehicle passes a functional
inspection of the fuel cap and a visual inspection for liquid fuel
leaks.
SEC. 195. Section 4466 of the Vehicle Code, as amended by Section
1 of Chapter 430 of the Statutes of 2004, is amended to read:
4466.
(a) The department shall not issue a duplicate or substitute
certificate of title or license plate if, after a search of the
records of the department, the registered owner's address, as
submitted on the application, is different from that which appears in
the records of the department, unless the registered owner applies
in person and presents all of the following:
(1) Proof of ownership of the vehicle that is acceptable to the
department. Proof of ownership may be the certificate of title,
registration certificate, or registration renewal notice, or a
facsimile of any of those documents, if the facsimile matches the
vehicle record of the department.
(2) A driver's license or identification card containing a picture
of the licensee or cardholder issued to the registered owner by the
department pursuant to Chapter 1 (commencing with Section 12500) of
Division 6. The department shall conduct a search of its records to
verify the authenticity of any document submitted under this
paragraph.
(A) If the registered owner is a resident of another state or
country, the registered owner shall present a driver's license or
identification card issued by that state or country. In addition, the
registered owner shall provide photo documentation in the form of a
valid passport, military identification card, identification card
issued by a state or United States government agency, student
identification card issued by a college or university, or
identification card issued by a California-based employer. If a
resident of another state is unable to present the required photo
identification, the department shall verify the authenticity of the
driver's license or identification card by contacting the state that
issued the driver's license or identification card.
(B) If the registered owner is not an individual, the person
submitting the application shall submit the photo identification
required under this paragraph, as well as documentation acceptable to
the department that demonstrates that the person is employed by an
officer of the registered owner.
(3) If the application is for the purpose of replacing a license
plate that was stolen, a copy of a police report identifying the
plate as stolen.
(4) If the application is for the purpose of replacing a
certificate of title or license plate that was mutilated or
destroyed, the remnants of the mutilated or destroyed document or
plate.
(5) If the department has a record of a prior issuance of a
duplicate or substitute certificate of title or license plate for the
vehicle within the past 90 days, a copy of a report from the
Department of the California Highway Patrol verifying the vehicle
identification number of the vehicle.
(b) Subdivision (a) does not apply if either of the following
apply:
(1) The registered owner's name, address, and driver's license or
identification card number submitted on the application match the
name, address, and driver's license or identification card number
contained in the department's records.
(2) An application for a duplicate or substitute certificate of
title or license plate is submitted by or through one of the
following:
(A) A legal owner, if the legal owner is not the same person as
the registered owner or as the lessee under Section 4453.5.
(B) A dealer or an agent of the dealer.
(C) A dismantler.
(D) An insurer or an agent of the insurer.
(E) A salvage pool.
(c) At the discretion of the department, the requirements of
subdivision (a) shall not apply in any of the following
circumstances:
(1) An application for a duplicate or substitute certificate of
title or license plate is submitted by a licensed registration
service representing any of the following:
(A) A person, including, but not limited to, a person listed in
subparagraphs (A) to (E), inclusive, of paragraph (2) of subdivision
(b).
(B) A business entity recognized under the laws of this state or
the laws of any foreign or domestic jurisdiction whose laws are in
parity with the laws of this state.
(C) A court-appointed bankruptcy referee.
(D) A person who is an individual, is not included in
subparagraphs (A) to (C), inclusive, and submits to the licensed
registration service an application with a signature that is
validated by a notary public. The licensed registration service shall
maintain full and complete records of its transactions conducted
pursuant to this subparagraph and shall make those records available
for inspection by an investigator of the Department of Motor
Vehicles, investigator of the Department of the California Highway
Patrol, a city police department, a county sheriff's office, or a
district attorney's office, if the investigator requests access to
the record and the request is for the purpose of a criminal
investigation.
(2) The vehicle is registered under the International Registration
Plan pursuant to Section 8052 or under the Permanent Fleet
Registration program pursuant to Article 9.5 (commencing with Section
5301) of Chapter 1.
(3) The vehicle is an implement of husbandry, as defined in
Section 36000, or a tow dolly, or has been issued an identification
plate under Section 5014 or 5014.1.
(d) The department shall issue one or more license plates only to
the registered owner or lessee. The department shall issue the
certificate of title only to the legal owner, or if none, then to the
registered owner, as shown on the department's records.
(e) This section shall remain in effect only until January 1,
2008, and as of that date is repealed, unless a later enacted
statute, which is enacted before January 1, 2008, deletes or extends
that date.
SEC. 196. Section 5205.5 of the Vehicle Code is amended to read:
5205.5.
(a) For the purposes of implementing Section 21655.9, the
department shall make available for issuance, for a fee determined by
the department to be sufficient to reimburse the department for the
actual costs incurred pursuant to this section, distinctive decals,
labels, and other identifiers that clearly distinguish the following
vehicles from other vehicles:
(1) A vehicle that meets California's super ultra-low emission
vehicle (SULEV) standard for exhaust emissions and the federal
inherently low-emission vehicle (ILEV) evaporative emission standard,
as defined in Part 88 (commencing with Section 88.101-94) of Title
40 of the Code of Federal Regulations.
(2) A vehicle that was produced during the 2004 model year or
earlier and meets California ultra-low emission vehicle (ULEV)
standard for exhaust emissions and the federal ILEV standard.
(3) A hybrid vehicle or an alternative fuel vehicle that meets
California's advanced technology partial zero-emission vehicle (AT
PZEV) standard for criteria pollutant emissions and has a 45 miles
per gallon or greater fuel economy highway rating.
(4) A hybrid vehicle that was produced during the 2004 model year
or earlier and has a 45 miles per gallon or greater fuel economy
highway rating, and meets California's ultra-low emission vehicle
(ULEV), super ultra-low emission vehicle (SULEV), or partial
zero-emission vehicle (PZEV) standards.
(b) Neither an owner of a hybrid vehicle that meets the AT PZEV
standard, with the exception of a vehicle that meets the federal ILEV
standard, nor an owner of a hybrid vehicle described in paragraph
(4) of subdivision (a), is entitled to a decal, label, or other
identifier pursuant to this section unless, and until, the federal
government acts to approve the use of high-occupancy vehicle lanes by
vehicles of the types identified in paragraph (3) or (4) of
subdivision (a), regardless of the number of occupants.
(c) The department shall include a summary of the provisions of
this section on each motor vehicle registration renewal notice, or on
a separate insert, if space is available and the summary can be
included without incurring additional printing or postage costs.
(d) The Department of Transportation shall remove individual
high-occupancy vehicle (HOV) lanes, or portions of those lanes,
during periods of peak congestion from the access provisions provided
in subdivision (a), following a finding by the Department of
Transportation as follows:
(1) The lane, or portion thereof, exceeds a level of service C, as
discussed in subdivision (b) of Section 65089 of the Government
Code.
(2) The operation or projected operation of the vehicles described
in subdivision (a) in these lanes, or portions thereof, will
significantly increase congestion.
The finding also shall demonstrate the infeasibility of
alleviating the congestion by other means, including, but not limited
to, reducing the use of the lane by noneligible vehicles, or further
increasing vehicle occupancy.
(e) The State Air Resources Board shall publish and maintain a
listing of all vehicles eligible for participation in the programs
described in this section. The board shall provide that listing to
the department.
(f) For purposes of subdivision (a), the Department of the
California Highway Patrol and the department, in consultation with
the Department of Transportation, shall design and specify the
placement of the decal, label, or other identifier on the vehicle.
Each decal, label, or other identifier issued for a vehicle shall
display a unique number, which number shall be printed on, or affixed
to, the vehicle registration.
(g) (1) For purposes of subdivision (a), the department shall
issue no more than 75,000 distinctive decals, labels, or other
identifiers that clearly distinguish the vehicles specified in
paragraphs (3) and (4) of subdivision (a).
(2) The department shall notify the Department of Transportation
immediately after the date on which the department has issued 50,000
decals, labels, and other identifiers under this section for the
vehicles described in paragraphs (3) and (4) of subdivision (a).
(3) The Department of Transportation shall determine whether
significant high-occupancy vehicle lane breakdown has occurred
throughout the state, in accordance with the following timeline:
(A) For lanes that are nearing capacity, the Department of
Transportation shall make the determination not later than 90 days
after the date provided by the department under paragraph (2).
(B) For lanes that are not nearing capacity, the Department of
Transportation shall make the determination not later than 180 days
after the date provided by the department under paragraph (2).
(4) In making the determination that significant high-occupancy
vehicle lane breakdown has occurred, the Department of Transportation
shall consider the following factors in the HOV lane:
(A) Reduction in level of service.
(B) Sustained stop-and-go conditions.
(C) Slower than average speed than the adjacent mixed flow lanes.
(D) Consistent increase in travel time.
(5) After making the determinations pursuant to subparagraphs (A)
and (B) of paragraph (3), if the Department of Transportation
determines that significant high-occupancy vehicle lane breakdown has
occurred throughout the state, the Department of Transportation
shall immediately notify the department of that determination, and
the department, on the date of receiving that notification, shall
discontinue issuing the decals, labels, or other identifiers for the
vehicles described in paragraphs (3) and (4) of subdivision (a).
(h) If the Metropolitan Transportation Commission, serving as the
Bay Area Toll Authority, grants toll-free and reduced-rate passage on
toll bridges under its jurisdiction to any vehicle pursuant to
Section 30102.5 of the Streets and Highways Code, it shall also grant
the same toll-free and reduced-rate passage to a vehicle displaying
an identifier issued by the department pursuant to paragraph (1) or
(2) of subdivision (a) and to a vehicle displaying a valid identifier
issued by the department pursuant to paragraph (3) or (4) of
subdivision (a) if either of the following apply:
(1) The vehicle is registered to an address outside of the region
identified in Section 66502 of the Government Code.
(2) If the vehicle is registered to an address inside the region,
the owner of the vehicle complies with subdivision (i) unless
subdivision (j) is applicable.
(i) An owner of a vehicle specified in paragraph (3) or (4) of
subdivision (a) whose vehicle is registered to an address in the
region identified in Section 66502 of the Government Code and who
seeks a vehicle identifier under subdivision (a) shall obtain an
account to operate within the automatic vehicle identification system
described in Section 27565 of the Streets and Highways Code and
shall submit to the department a form, approved by the department and
issued by the Bay Area Toll Authority, that contains the vehicle
owner's name, the license plate number and vehicle identification
number of the vehicle, the vehicle make and year model, and the
automatic vehicle identification system account number, as a
condition to obtaining a vehicle identifier pursuant to subdivision
(a) that allows for the use of that vehicle in high-occupancy vehicle
lanes regardless of the number of occupants.
(j) If the automatic vehicle identification system readers on all
high-occupancy vehicle lanes on all of the toll bridges identified in
subdivision (a) of Section 30910 of the Streets and Highways Code
are not fully operational and fully funded with bridge tolls
controlled by the Bay Area Toll Authority within 90 days of the
federal government approval described in subdivision (b), then
subdivision (i) shall not be applicable and both of the following
shall apply:
(1) The Metropolitan Transportation Commission, acting as the Bay
Area Toll Authority, shall grant toll-free and reduced-rate passage
to all vehicles displaying an identifier issued by the department
pursuant to subdivision (a).
(2) The department shall not require documentation that the owner
of a vehicle registered to an address in the region identified in
Section 66502 of the Government Code has obtained an automatic
vehicle identification system account as a condition to the issuance
of an identifier under subdivision (a).
(k) This section shall remain in effect only until January 1,
2008, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2008, deletes or extends
that date.
SEC. 197. Section 9400.1 of the Vehicle Code is amended to read:
9400.1.
(a) (1) In addition to any other required fee, there shall be paid
the fees set forth in this section for the registration of
commercial motor vehicles operated either singly or in combination
with a declared gross vehicle weight of 10,001 pounds or more. Pickup
truck and electric vehicle weight fees are not calculated under this
section.
(2) The weight of a vehicle issued an identification plate
pursuant to an application under Section 5014, and the weight of an
implement of husbandry as defined in Section 36000, shall not be
considered when calculating, pursuant to this section, the declared
gross vehicle weight of a towing commercial motor vehicle that is
owned and operated exclusively by a farmer or an employee of a farmer
in the conduct of agricultural operations.
(3) Tow trucks that are utilized to render assistance to the
motoring public or to tow or carry impounded vehicles shall pay fees
in accordance with this section, except that the fee calculation
shall be based only on the gross vehicle weight rating of the towing
or carrying vehicle. Upon each initial or transfer application for
registration of a tow truck described in this paragraph, the
registered owner or lessee or that owner's or lessee's designee,
shall certify to the department the gross vehicle weight rating of
the tow truck:
Gross Vehicle Weight Range Fee
10,001-15,000........................ $ 257
15,001-20,000........................ 353
20,001-26,000........................ 435
26,001-30,000........................ 552
30,001-35,000........................ 648
35,001-40,000........................ 761
40,001-45,000........................ 837
45,001-50,000........................ 948
50,001-54,999........................ 1,039
55,000-60,000........................ 1,173
60,001-65,000........................ 1,282
65,001-70,000........................ 1,398
70,001-75,000........................ 1,650
75,001-80,000........................ 1,700
(b) The fees specified in subdivision (a) apply to both of the
following:
(1) An initial or original registration occurring on or after
December 31, 2001, to December 30, 2003, inclusive, of a commercial
motor vehicle operated either singly or in combination with a
declared gross vehicle weight of 10,001 pounds or more.
(2) The renewal of registration of a commercial motor vehicle
operated either singly or in combination, with a declared gross
vehicle weight of 10,001 pounds or more for which registration
expires on or after December 31, 2001, to December 30, 2003,
inclusive.
(c) (1) For both an initial or original registration occurring on
or after December 31, 2003, of a commercial motor vehicle operated
either singly or in combination with a declared gross vehicle weight
of 10,001 pounds or more, and the renewal of registration of a
commercial motor vehicle operated either singly or in combination,
with a declared gross vehicle weight of 10,001 pounds or more for
which registration expires on or after December 31, 2003, there shall
be paid fees as follows:
Gross Vehicle Weight
Range Weight Code Fee
10,001-15,000 A $ 332
15,001-20,000 B 447
20,001-26,000 C 546
26,001-30,000 D 586
30,001-35,000 E 801
35,001-40,000 F 937
40,001-45,000 G 1,028
45,001-50,000 H 1,161
50,001-54,999 I 1,270
55,000-60,000 J 1,431
60,001-65,000 K 1,562
65,001-70,000 L 1,701
70,001-75,000 M 2,004
75,001-80,000 N 2,064
(2) For the purpose of obtaining "revenue neutrality" as described
in Sections 1 and 59 of Senate Bill 2084 of the 1999-2000 Regular
Session (Chapter 861 of the Statutes of 2000), the Director of
Finance shall review the final 2003-04 Statement of Transactions of
the State Highway Account. If that review indicates that the actual
truck weight fee revenues deposited in the State Highway Account do
not total at least seven hundred eighty-nine million dollars
($789,000,000), the Director of Finance shall instruct the department
to adjust the schedule set forth in paragraph (1), but not to exceed
the following fee amounts:
Gross Vehicle Weight
Range Weight Code Fee
10,001-15,000 A $ 354
15,001-20,000 B 482
20,001-26,000 C 591
26,001-30,000 D 746
30,001-35,000 E 874
35,001-40,000 F 1,024
40,001-45,000 G 1,125
45,001-50,000 H 1,272
50,001-54,999 I 1,393
55,000-60,000 J 1,571
60,001-65,000 K 1,716
65,001-70,000 L 1,870
70,001-75,000 M 2,204
75,001-80,000 N 2,271
(d) (1) In addition to the fees set forth in subdivision (a), a
Cargo Theft Interdiction Program fee of three dollars ($3) shall be
paid at the time of initial or original registration or renewal of
registration of each motor vehicle subject to weight fees under this
section.
(2) This subdivision does not apply to vehicles used or maintained
for the transportation of persons for hire, compensation or profit,
and tow trucks.
(3) For vehicles registered under Article 4 (commencing with
Section 8050) of Chapter 4, the fee imposed under this subdivision
shall be apportioned as required for registration fees under that
article.
(4) Funds collected pursuant to the Cargo Theft Interdiction
Program shall not be proportionately reduced for each month and shall
be transferred to the Motor Carriers Safety Improvement Fund.
(e) Notwithstanding Section 42270 or any other provision of law,
of the moneys collected by the department under this section, one
hundred twenty-two dollars ($122) for each initial, original, and
renewal registration shall be reported monthly to the Controller, and
at the same time, deposited in the State Treasury to the credit of
the Motor Vehicle Account in the State Transportation Fund. All other
moneys collected by the department under this section shall be
deposited to the credit of the State Highway Account in the State
Transportation Fund. One hundred twenty-two dollars ($122) of the fee
imposed under this section shall not be proportionately reduced for
each month. For vehicles registered under Article 4 (commencing with
Section 8050) of Chapter 4, the fee shall be apportioned as required
for registration under that article.
(f) (1) The department, in consultation with the Department of the
California Highway Patrol, shall design and make available a set of
distinctive weight decals that reflect the declared gross combined
weight or gross operating weight reported to the department at the
time of initial registration, registration renewal, or when a weight
change is reported to the department pursuant to Section 9406.1. A
new decal shall be issued on each renewal or when the weight is
changed pursuant to Section 9406.1. The decal for a tow truck that is
subject to this section shall reflect the gross vehicle weight
rating or weight code.
(2) The department may charge a fee, not to exceed ten dollars
($10), for the department's actual cost of producing and issuing each
set of decals issued under paragraph (1).
(3) The weight decal shall be in sharp contrast to the background
and shall be of a size, shape, and color that is readily legible
during daylight hours from a distance of 50 feet.
(4) Each vehicle subject to this section shall display the weight
decal on both the right and left sides of the vehicle.
(5) A person may not display upon a vehicle a decal issued
pursuant to this subdivision that does not reflect the declared
weight reported to the department.
(6) Notwithstanding subdivision (e) or any other provision of law,
the moneys collected by the department under this subdivision shall
be deposited in the State Treasury to the credit of the Motor Vehicle
Account in the State Transportation Fund.
(7) This subdivision shall apply to vehicles subject to this
section at the time of an initial registration, registration renewal,
or reported weight change that occurs on or after July 1, 2004.
(8) The following shall apply to vehicles registered under the
permanent fleet registration program pursuant to Article 9.5
(commencing with Section 5301) of Chapter 1:
(A) The department, in consultation with the Department of the
California Highway Patrol, shall distinguish the weight decals issued
to permanent fleet registration vehicles from those issued to other
vehicles.
(B) The department shall issue the distinguishable weight decals
only to the following:
(i) A permanent fleet registration vehicle that is registered with
the department on January 1, 2005.
(ii) On and after January 1, 2005, a vehicle for which the
department has an application for initial registration as a permanent
fleet registration vehicle.
(iii) On and after January 1, 2005, a permanent fleet registration
vehicle that has a weight change pursuant to Section 9406.1.
(C) The weight decal issued under this paragraph shall comply with
the applicable provisions of paragraphs (1) to (6), inclusive.
SEC.
198. Section 12509 of the Vehicle Code is amended to read:
12509.
(a) Except as otherwise provided in subdivision (f) of Section
12514, the department, for good cause, may issue an instruction
permit to any physically and mentally qualified person who meets one
of the following requirements and who applies to the department for
an instruction permit:
(1) Is age 15 years and 6 months or over, and has successfully
completed approved courses in automobile driver education and driver
training as provided in paragraph (3) of subdivision (a) of Section
12814.6.
(2) Is age 15 years and 6 months or over, and has successfully
completed an approved course in automobile driver education and is
taking driver training as provided in paragraph (3) of subdivision
(a) of Section 12814.6.
(3) Is age 15 years and 6 months and enrolled and participating in
an integrated driver education program as provided in subparagraph
(B) of paragraph (3) of subdivision (a) of Section 12814.6.
(4) Is over the age of 16 years and is applying for a restricted
driver's license pursuant to Section 12814.7.
(5) Is over the age of 17 years and 6 months.
(b) The applicant shall qualify for, and be issued, an instruction
permit within 12 months from the date of the application.
(c) An instruction permit issued pursuant to subdivision (a) shall
entitle the applicant to operate a vehicle, subject to the
limitations imposed by this section and any other provisions of law,
upon the highways for a period not exceeding 24 months from the date
of the application.
(d) Except as provided in Section 12814.6, a person, while having
in his or her immediate possession a valid permit issued pursuant to
paragraphs (1) to (3), inclusive, of subdivision (a), may operate a
motor vehicle, other than a motorcycle, motorized scooter, or a
motorized bicycle, when accompanied by, and under the immediate
supervision of, a California licensed driver with a valid license of
the appropriate class, 18 years of age or over whose driving
privilege is not on probation. Except as provided in subdivision (e),
an accompanying licensed driver at all times shall occupy a position
within the driver's compartment that would enable the accompanying
licensed driver to assist the person in controlling the vehicle as
may be necessary to avoid a collision and to provide immediate
guidance in the safe operation of the vehicle.
(e) A person, while having in his or her immediate possession a
valid permit issued pursuant to paragraphs (1) to (3), inclusive, of
subdivision (a), who is age 15 years and 6 months or over and who has
successfully completed approved courses in automobile education and
driver training as provided in paragraph (3) of subdivision (a) of
Section 12814.6, and a person, while having in his or her immediate
possession a valid permit issued pursuant to subdivision (a), who is
age 17 years and 6 months or over, may, in addition to operating a
motor vehicle pursuant to subdivision (d), also operate a motorcycle,
motorized scooter, or a motorized bicycle, except that the person
shall not operate a motorcycle, motorized scooter, or a motorized
bicycle during hours of darkness, shall stay off any freeways that
have full control of access and no crossings at grade, and shall not
carry any passenger except an instructor licensed under Chapter 1
(commencing with Section 11100) of Division 5 of this code or a
qualified instructor as defined in Section 18252.2 of the Education
Code.
(f) A person while having in his or her immediate possession a
valid permit issued pursuant to paragraph (4) of subdivision (a), may
only operate a government-owned motor vehicle, other than a
motorcycle, motorized scooter, or a motorized bicycle, when taking a
driver training instruction administered by the California National
Guard.
(g) The department may also issue an instruction permit to a
person who has been issued a valid driver's license to authorize the
person to obtain driver training instruction and to practice that
instruction in order to obtain another class of driver's license or
an endorsement.
(h) The department may further restrict permits issued under
subdivision (a) as it may determine to be appropriate to assure the
safe operation of a motor vehicle by the permittee.
SEC. 199. Section 13352 of the Vehicle Code, as added by Chapter
595 of the Statutes of 2004, is amended to read:
13352.
(a) The department shall immediately suspend or revoke the
privilege of a person to operate a motor vehicle upon the receipt of
an abstract of the record of any court showing that the person has
been convicted of a violation of Section 23152 or 23153 or
subdivision (a) of Section 23109, or upon the receipt of a report of
a judge of the juvenile court, a juvenile traffic hearing officer, or
a referee of a juvenile court showing that the person has been found
to have committed a violation of Section 23152 or 23153 or
subdivision (a) of Section 23109. If any offense specified in this
section occurs in a vehicle defined in Section 15210, the suspension
or revocation specified below shall apply to the noncommercial
driving privilege. The commercial driving privilege shall be
disqualified as specified in Sections 15300 to 15302, inclusive. For
the purposes of this section, suspension or revocation shall be as
follows:
(1) Except as required under Section 13352.4, upon a conviction or
finding of a violation of Section 23152 punishable under Section
23536, the privilege shall be suspended for a period of six months.
The privilege may not be reinstated until the person gives proof of
financial responsibility and gives proof satisfactory to the
department of successful completion of a driving-under-the-influence
program licensed pursuant to Section 11836 of the Health and Safety
Code described in subdivision (b) of Section 23538. If the court, as
authorized under paragraph (3) of subdivision (b) of Section 23646,
elects to order a person to enroll in, participate in, and complete
either program described in paragraph (4) of subdivision (b) of
Section 23542, the department shall require that program in lieu of
the program described in subdivision (b) of Section 23538. For the
purposes of this paragraph, enrollment in, participation in, and
completion of an approved program shall be subsequent to the date of
the current violation. Credit may not be given to any program
activities completed prior to the date of the current violation.
(2) Upon a conviction or finding of a violation of Section 23153
punishable under Section 23554, the privilege shall be suspended for
a period of one year. The privilege may not be reinstated until the
person gives proof of financial responsibility and gives proof
satisfactory to the department of successful completion of a
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code as described in subdivision (b)
of Section 23556. If the court, as authorized under paragraph (3) of
subdivision (b) of Section 23646, elects to order a person to enroll
in, participate in, and complete either program described in
paragraph (4) of subdivision (b) of Section 23542, the department
shall require that program in lieu of the program described in
Section 23556. For the purposes of this paragraph, enrollment in,
participation in, and completion of an approved program shall be
subsequent to the date of the current violation. Credit may not be
given to any program activities completed prior to the date of the
current violation.
(3) Except as provided in Section 13352.5, upon a conviction or
finding of a violation of Section 23152 punishable under Section
23540, the privilege shall be suspended for two years. The privilege
may not be reinstated until the person gives proof of financial
responsibility and gives proof satisfactory to the department of
successful completion of a driving-under-the-influence program
licensed pursuant to Section 11836 of the Health and Safety Code as
described in subdivision (b) of Section 23542. For the purposes of
this paragraph, enrollment in, participation in, and completion of an
approved program shall be subsequent to the date of the current
violation. Credit shall not be given to any program activities
completed prior to the date of the current violation. The department
shall advise the person that after completion of 12 months of the
suspension period, which may include credit for any suspension period
served under subdivision (c) of Section 13353.3, the person may
apply to the department for a restricted driver's license, subject to
the following conditions:
(A) The person has satisfactorily provided, subsequent to the
violation date of the current underlying conviction, either of the
following:
(i) Proof of enrollment in an 18-month driving-under-the-influence
program licensed pursuant to Section 11836 of the Health and Safety
Code.
(ii) Proof of enrollment in a 30-month driving-under-the-influence
program licensed pursuant to Section 11836 of the Health and Safety
Code, if available in the county of the person's residence or
employment.
(B) The person agrees, as a condition of the restriction, to
continue satisfactory participation in the program described in
subparagraph (A).
(C) The person submits the "Verification of Installation" form
described in paragraph (2) of subdivision (e) of Section 13386.
(D) The person agrees to maintain the ignition interlock device as
required under subdivision (g) of Section 23575.
(E) The person provides proof of financial responsibility, as
defined in Section 16430.
(F) The person pays all administrative fees or reissue fees and
any restriction fee required by the department.
(G) The restriction shall remain in effect for the period required
in subdivision (f) of Section 23575.
(4) Except as provided in this paragraph, upon a conviction or
finding of a violation of Section 23153 punishable under Section
23560, the privilege shall be revoked for a period of three years.
The privilege may not be reinstated until the person gives proof of
financial responsibility, and the person gives proof satisfactory to
the department of successful completion of a
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, as described in subdivision (b)
of Section 23562. For the purposes of this paragraph, enrollment in,
participation in, and completion of an approved program shall be
subsequent to the date of the current violation. Credit shall not be
given to any program activities completed prior to the date of the
current violation. The department shall advise the person that after
the completion of 18 months of the revocation period, which may
include credit for any suspension period served under subdivision (c)
of Section 13353.3, the person may apply to the department for a
restricted driver's license, subject to the following conditions:
(A) The person has satisfactorily completed, subsequent to the
violation date of the current underlying conviction, either of the
following:
(i) An 18-month driving-under-the-influence program licensed
pursuant to Section 11836 of the Health and Safety Code.
(ii) The initial 18 months of a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, if available in the county of
the person's residence or employment, and the person agrees, as a
condition of the restriction, to continue satisfactory participation
in that 30-month program.
(B) The person submits the "Verification of Installation" form
described in paragraph (2) of subdivision (e) of Section 13386.
(C) The person agrees to maintain the ignition interlock device as
required under subdivision (g) of Section 23575.
(D) The person provides proof of financial responsibility, as
defined in Section 16430.
(E) The person pays all applicable reinstatement or reissue fees
and any restriction fee required by the department.
(F) The restriction shall remain in effect for the period required
in subdivision (f) of Section 23575.
(5) Except as provided in this paragraph, upon a conviction or
finding of a violation of Section 23152 punishable under Section
23546, the privilege shall be revoked for a period of three years.
The privilege may not be reinstated until the person files proof of
financial responsibility and gives proof satisfactory to the
department of successful completion of one of the following programs:
an 18-month driving-under-the-influence program licensed pursuant to
Section 11836 of the Health and Safety Code, as described in
subdivision (b) or (c) of Section 23548, or, if available in the
county of the person's residence or employment, a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, or a program specified in
Section 8001 of the Penal Code. For the purposes of this paragraph,
enrollment in, participation in, and completion of an approved
program shall be subsequent to the date of the current violation.
Credit shall not be given to any program activities completed prior
to the date of the current violation. The department shall advise the
person that after completion of 18 months of the revocation period,
which may include credit for any suspension period served under
subdivision (c) of Section 13353.3, the person may apply to the
department for a restricted driver's license, subject to the
following conditions:
(A) The person has satisfactorily completed, subsequent to the
violation date of the current underlying conviction, either of the
following:
(i) An 18-month driving-under-the-influence program licensed
pursuant to Section 11836 of the Health and Safety Code.
(ii) The initial 18 months of a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, if available in the county of
the person's residence or employment, and the person agrees, as a
condition of the restriction, to continue satisfactory participation
in the 30-month driving-under-the-influence program.
(B) The person submits the "Verification of Installation" form
described in paragraph (2) of subdivision (e) of Section 13386.
(C) The person agrees to maintain the ignition interlock device as
required under subdivision (g) of Section 23575.
(D) The person provides proof of financial responsibility, as
defined in Section 16430.
(E) An individual convicted of a violation of Section 23152
punishable under Section 23546 may also, at any time after
sentencing, petition the court for referral to an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, or, if available in the county
of the person's residence or employment, a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code. Unless good cause is shown, the
court shall order the referral.
(F) The person pays all applicable reinstatement or reissue fees
and any restriction fee required by the department.
(G) The restriction shall remain in effect for the period required
in subdivision (f) of Section 23575.
(6) Except as provided in this paragraph, upon a conviction or
finding of a violation of Section 23153 punishable under Section
23550.5 or 23566, the privilege shall be revoked for a period of five
years. The privilege may not be reinstated until the person gives
proof of financial responsibility and proof satisfactory to the
department of successful completion of one of the following programs:
an 18-month driving-under-the-influence program licensed pursuant to
Section 11836 of the Health and Safety Code, as described in
subdivision (b) of Section 23568 or, if available in the county of
the person's residence or employment, a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, or a program specified in
Section 8001 of the Penal Code. For the purposes of this paragraph,
enrollment in, participation in, and completion of an approved
program shall be subsequent to the date of the current violation.
Credit shall not be given to any program activities completed prior
to the date of the current violation. The department shall advise the
person that after the completion of 30 months of the revocation
period, which may include credit for any suspension period served
under subdivision (c) of Section 13353.3, the person may apply to the
department for a restricted driver's license, subject to the
following conditions:
(A) The person has satisfactorily completed, subsequent to the
violation date of the current underlying conviction, either of the
following:
(i) The initial 18 months of a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, if available in the county of
the person's residence or employment, and the person agrees, as a
condition of the restriction, to continue satisfactory participation
in the 30-month driving-under-the-influence program.
(ii) An 18-month driving-under-the-influence program licensed
pursuant to Section 11836 of the Health and Safety Code, if a
30-month program is unavailable in the person's county of residence
or employment.
(B) The person submits the "Verification of Installation" form
described in paragraph (2) of subdivision (e) of Section 13386.
(C) The person agrees to maintain the ignition interlock device as
required under subdivision (g) of Section 23575.
(D) The person provides proof of financial responsibility, as
defined in Section 16430.
(E) Any individual convicted of a violation of Section 23153
punishable under Section 23566 may also, at any time after
sentencing, petition the court for referral to an 18-month
driving-under-the-influence program or, if available in the county of
the person's residence or employment, a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code. Unless good cause is shown, the
court shall order the referral.
(F) The person pays all applicable reinstatement or reissue fees
and any restriction fee required by the department.
(G) The restriction shall remain in effect for the period required
in subdivision (f) of Section 23575.
(7) Except as provided in this paragraph, upon a conviction or
finding of a violation of Section 23152 punishable under Section
23550 or 23550.5, or Section 23153 punishable under Section 23550.5,
the privilege shall be revoked for a period of four years. The
privilege may not be reinstated until the person gives proof of
financial responsibility and proof satisfactory to the department of
successful completion of one of the following programs: an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, or, if available in the county
of the person's residence or employment, a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, or a program specified in
Section 8001 of the Penal Code. For the purposes of this paragraph,
enrollment in, participation in, and completion of an approved
program shall be subsequent to the date of the current violation.
Credit shall not be given to any program activities completed prior
to the date of the current violation. The department shall advise the
person that after the completion of 24 months of the revocation
period, which may include credit for any suspension period served
under subdivision (c) of Section 13353.3, the person may apply to the
department for a restricted driver's license, subject to the
following conditions:
(A) The person has satisfactorily completed, subsequent to the
violation date of the current underlying conviction, either of the
following:
(i) An 18-month driving-under-the-influence program licensed
pursuant to Section 11836 of the Health and Safety Code.
(ii) The initial 18 months of a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, if available in the county of
the person's residence or employment, and the person agrees, as a
condition of the restriction, to continue satisfactory participation
in the 30-month driving-under-the-influence program.
(B) The person submits the "Verification of Installation" form
described in paragraph (2) of subdivision (e) of Section 13386.
(C) The person agrees to maintain the ignition interlock device as
required under subdivision (g) of Section 23575.
(D) The person provides proof of financial responsibility, as
defined in Section 16430.
(E) An individual convicted of a violation of Section 23152
punishable under Section 23550 may also, at any time after
sentencing, petition the court for referral to an 18-month
driving-under-the-influence program or, if available in the county of
the person's residence or employment, a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code. Unless good cause is shown, the
court shall order the referral.
(F) The person pays all applicable reinstatement or reissue fees
and any restriction fee required by the department.
(G) The restriction shall remain in effect for the period required
in subdivision (f) of Section 23575.
(8) Upon a conviction or finding of a violation of subdivision (a)
of Section 23109 that is punishable under subdivision (e) of that
section, the privilege shall be suspended for a period of 90 days to
six months, if ordered by the court. The privilege may not be
reinstated until the person gives proof of financial responsibility,
as defined in Section 16430.
(9) Upon a conviction or finding of a violation of subdivision (a)
of Section 23109 that is punishable under subdivision (f) of that
section, the privilege shall be suspended for a period of six months,
if ordered by the court. The privilege may not be reinstated until
the person gives proof of financial responsibility, as defined in
Section 16430.
(b) For the purpose of paragraphs (2) to (9), inclusive, of
subdivision (a), the finding of the juvenile court judge, the
juvenile hearing officer, or the referee of a juvenile court of a
commission of a violation of Section 23152 or 23153 or subdivision
(a) of Section 23109, as specified in subdivision (a) of this
section, is a conviction.
(c) A judge of a juvenile court, juvenile hearing officer, or
referee of a juvenile court shall immediately report the findings
specified in subdivision (a) to the department.
(d) A conviction of an offense in any state, territory, or
possession of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, or Canada that, if committed in this
state, would be a violation of Section 23152, is a conviction of
Section 23152 for purposes of this section, and a conviction of an
offense that, if committed in this state, would be a violation of
Section 23153, is a conviction of Section 23153 for purposes of this
section. The department shall suspend or revoke the privilege to
operate a motor vehicle pursuant to this section upon receiving
notice of that conviction.
(e) For the purposes of the restriction conditions specified in
paragraphs (3) to (7), inclusive, of subdivision (a), the department
shall terminate the restriction imposed pursuant to this section and
shall suspend or revoke the person's driving privilege upon receipt
of notification from the driving-under-the-influence program that the
person has failed to comply with the program requirements. The
person's driving privilege shall remain suspended or revoked for the
remaining period of the original suspension or revocation imposed
under this section and until all reinstatement requirements described
in this section are met.
(f) For the purposes of this section, completion of a program is
the following:
(1) Satisfactory completion of all program requirements approved
pursuant to program licensure, as evidenced by a certificate of
completion issued, under penalty of perjury, by the licensed program.
(2) Certification, under penalty of perjury, by the director of a
program specified in Section 8001 of the Penal Code, that the person
has completed a program specified in Section 8001 of the Penal Code.
(g) The holder of a commercial driver's license who was operating
a commercial motor vehicle, as defined in Section 15210, at the time
of a violation that resulted in a suspension or revocation of the
person's noncommercial driving privilege under this section is not
eligible for the restricted driver's license authorized under
paragraphs (3) to (7), inclusive, of subdivision (a).
(h) This section shall become operative on September 20, 2005.
SEC. 200. Section 15250 of the Vehicle Code is amended to read:
15250.
(a) (1) A person may not operate a commercial motor vehicle unless
that person has in his or her immediate possession a valid
commercial driver's license of the appropriate class.
(2) A person may not operate a commercial motor vehicle while
transporting hazardous materials unless that person has in his or her
possession a valid commercial driver's license with a hazardous
materials endorsement. An instruction permit does not authorize the
operation of a vehicle transporting hazardous materials.
(b) (1) Before an application for an original or renewal of a
commercial driver's license with a hazardous materials endorsement is
submitted to the United States Transportation Security
Administration for the processing of a security threat assessment, as
required under Part 1572 of Title 49 of the Code of Federal
Regulations, the department shall complete a check of the applicant's
driving record to ensure that the person is not subject to a
disqualification under Part 383.51 of Title 49 of the Code of Federal
Regulations.
(2) A person may not be issued a commercial driver's license until
he or she has passed a written and driving test for the operation of
a commercial motor vehicle which complies with the minimum federal
standards established by the federal Commercial Motor Vehicle Safety
Act of 1986 (P.L. 99-570) and Part 383 of Title 49 of the Code of
Federal Regulations, and has satisfied all other requirements of that
act as well as any other requirements imposed by this code.
(c) The tests shall be prescribed and conducted by or under the
direction of the department. The department may allow a third-party
tester to administer the driving test part of the examination
required under this section and Section 15275 if all of the following
conditions are met:
(1) The tests
given by the third party are the same as those that would otherwise
be given by the department.
(2) The third party has an agreement with the department that
includes, but is not limited to, the following provisions:
(A) Authorization for the United States Secretary of
Transportation, or his or her representative, and the department, or
its representative, to conduct random examinations, inspections, and
audits without prior notice.
(B) Permission for the department, or its representative, to
conduct onsite inspections at least annually.
(C) A requirement that all third-party testers meet the same
qualification and training standards as the department's examiners,
to the extent necessary to conduct the driving skill tests in
compliance with the requirements of Part 383 of Title 49 of the Code
of Federal Regulations.
(D) The department may cancel, suspend, or revoke the agreement
with a third-party tester if the third-party tester fails to comply
with the standards for the commercial driver's license testing
program, or with any other term of the third-party agreement, upon 15
days' prior written notice of the action to cancel, suspend, or
revoke the agreement by the department to the third party. Any action
to appeal or review any order of the department canceling,
suspending, or revoking a third-party testing agreement shall be
brought in a court of competent jurisdiction under Section 1085 of
the Code of Civil Procedure, or as otherwise permitted by the laws of
this state. The action shall be commenced within 90 days from the
effective date of the order.
(E) Any third-party tester whose agreement has been canceled
pursuant to subparagraph (D) may immediately apply for a third-party
testing agreement.
(F) A suspension of a third-party testing agreement pursuant to
subparagraph (D) shall be for a term of less than 12 months as
determined by the department. After the period of suspension, the
agreement shall be reinstated upon request of the third-party tester.
(G) A revocation of a third-party testing agreement pursuant to
subparagraph (D) shall be for a term of not less than one year. A
third-party tester may apply for a new third-party testing agreement
after the period of revocation and upon submission of proof of
correction of the circumstances causing the revocation.
(H) Authorization for the department to charge the third-party
tester a fee, as determined by the department, which is sufficient to
defray the actual costs incurred by the department for administering
and evaluating the third-party testing program, and for carrying out
any other activities deemed necessary by the department to ensure
sufficient training for the drivers participating in the program.
(3) Except as provided in Section 15250.3, the tests given by the
third party shall not be accepted in lieu of tests prescribed and
conducted by the department for applicants for a passenger vehicle
endorsement specified in paragraph (2) of subdivision (a) of Section
15278, if the applicant operates or will operate a tour bus.
(d) Commercial driver's license applicants who take and pass
driving tests administered by a third party shall provide the
department with certificates of driving skill satisfactory to the
department that the applicant has successfully passed the driving
tests administered by the third party.
(e) Implementation dates for the issuance of a commercial driver's
license pursuant to this chapter may be established by the
department as it determines is necessary to accomplish an orderly
commercial driver's license program.
SEC. 201. Section 15275 of the Vehicle Code is amended to read:
15275.
(a) A person may not operate a commercial motor vehicle described
in this chapter unless that person has in his or her possession a
valid commercial driver's license for the appropriate class, and an
endorsement issued by the department to permit the operation of the
vehicle unless exempt from the requirement to obtain an endorsement
pursuant to subdivision (b) of Section 15278.
(b) (1) An endorsement to drive vehicles specified in this article
shall be issued only to applicants who are qualified by examinations
prescribed by the department and who meet the minimum standards
established in Part 383 of Title 49 of the Code of Federal
Regulations.
(2) A hazardous materials endorsement shall be issued only to
applicants who comply with paragraph (1) and the requirements set
forth in Part 1572 of Title 49 of the Code of Federal Regulations.
(c) The department may deny, suspend, revoke, or cancel an
endorsement to drive vehicles specified in this article when the
applicant does not meet the qualifications for the issuance or
retention of the endorsement.
(d) If the department denies, suspends, revokes, or cancels a
hazardous materials endorsement because the department received
notification that the applicant poses a security threat pursuant to
Part 1572 of Title 49 of the Code of Federal Regulations, and, upon
appeal by the United States Transportation Security Administration,
that endorsement is ordered reinstated, the department shall issue or
restore the hazardous materials endorsement to the applicant within
the period specified under those federal regulations.
SEC. 202. Section 23575 of the Vehicle Code is amended to read:
23575.
(a) (1) In addition to any other provisions of law, the court may
require that a person convicted of a first offense violation of
Section 23152 or 23153 to install a certified ignition interlock
device on any vehicle that the person owns or operates and prohibit
that person from operating a motor vehicle unless that vehicle is
equipped with a functioning, certified ignition interlock device. The
court shall give heightened consideration to applying this sanction
to a first offense violator with 0.20 percent or more, by weight, of
alcohol in his or her blood at arrest, or with two or more prior
moving traffic violations, or to persons who refused the chemical
tests at arrest. If the court orders the ignition interlock device
restriction, the term shall be determined by the court for a period
not to exceed three years from the date of conviction. The court
shall notify the Department of Motor Vehicles, as specified in
subdivision (a) of Section 1803, of the terms of the restrictions in
accordance with subdivision (a) of Section 1804. The Department of
Motor Vehicles shall place the restriction in the person's records in
the Department of Motor Vehicles.
(2) The court shall require a person convicted of a violation of
Section 14601.2 to install an ignition interlock device on any
vehicle that the person owns or operates and prohibit the person from
operating a motor vehicle unless the vehicle is equipped with a
functioning, certified ignition interlock device. The term of the
restriction shall be determined by the court for a period not to
exceed three years from the date of conviction. The court shall
notify the Department of Motor Vehicles, as specified in subdivision
(a) of Section 1803, of the terms of the restrictions in accordance
with subdivision (a) of Section 1804. The Department of Motor
Vehicles shall place the restriction in the person's records in the
Department of Motor Vehicles.
(b) The court shall include on the abstract of conviction or
violation submitted to the Department of Motor Vehicles under Section
1803 or 1816, the requirement and term for the use of a certified
ignition interlock device. The records of the department shall
reflect mandatory use of the device for the term ordered by the
court.
(c) The court shall advise the person that installation of an
ignition interlock device on a vehicle does not allow the person to
drive without a valid driver's license.
(d) A person whose driving privilege is restricted by the court
pursuant to this section shall arrange for each vehicle with an
ignition interlock device to be serviced by the installer at least
once every 60 days in order for the installer to recalibrate and
monitor the operation of the device. The installer shall notify the
court if the device is removed or indicates that the person has
attempted to remove, bypass, or tamper with the device, or if the
person fails three or more times to comply with any requirement for
the maintenance or calibration of the ignition interlock device.
There is no obligation for the installer to notify the court if the
person has complied with all of the requirements of this article.
(e) The court shall monitor the installation and maintenance of
any ignition interlock device restriction ordered pursuant to
subdivision (a) or (l). If a person fails to comply with the court
order, the court shall give notice of the fact to the department
pursuant to Section 40509.1.
(f) (1) Pursuant to Section 13352, if a person is convicted of a
violation of Section 23152 or 23153, and the offense occurred within
10 years of one or more separate violations of Section 23152 or 23153
that resulted in a conviction, the person may apply to the
Department of Motor Vehicles for a restricted driver's license
pursuant to Section 13352 that prohibits the person from operating a
motor vehicle unless that vehicle is equipped with a functioning
ignition interlock device, certified pursuant to Section 13386. The
restriction shall remain in effect for at least the remaining period
of the original suspension or revocation and until all reinstatement
requirements in Section 13352 are met.
(2) Pursuant to subdivision (g), the Department of Motor Vehicles
shall immediately terminate the restriction issued pursuant to
Section 13352 and shall immediately suspend or revoke the privilege
to operate a motor vehicle of a person who attempts to remove,
bypass, or tamper with the device, who has the device removed prior
to the termination date of the restriction, or who fails three or
more times to comply with any requirement for the maintenance or
calibration of the ignition interlock device ordered pursuant to
Section 13352. The privilege shall remain suspended or revoked for
the remaining period of the originating suspension or revocation and
until all reinstatement requirements in Section 13352 are met.
(g) A person whose driving privilege is restricted by the
Department of Motor Vehicles pursuant to Section 13352 shall arrange
for each vehicle with an ignition interlock device to be serviced by
the installer at least once every 60 days in order for the installer
to recalibrate the device and monitor the operation of the device.
The installer shall notify the Department of Motor Vehicles if the
device is removed or indicates that the person has attempted to
remove, bypass, or tamper with the device, or if the person fails
three or more times to comply with any requirement for the
maintenance or calibration of the ignition interlock device. There is
no obligation on the part of the installer to notify the department
or the court if the person has complied with all of the requirements
of this section.
(h) Nothing in this section permits a person to drive without a
valid driver's license.
(i) The Department of Motor Vehicles shall include information
along with the order of suspension or revocation for repeat offenders
informing them that after a specified period of suspension or
revocation has been completed, the person may either install an
ignition interlock device on any vehicle that the person owns or
operates or remain with a suspended or revoked driver's license.
(j) Pursuant to this section, an out-of-state resident who
otherwise would qualify for an ignition interlock device restricted
license in California shall be prohibited from operating a motor
vehicle in California unless that vehicle is equipped with a
functioning ignition interlock device. An ignition interlock device
is not required to be installed on any vehicle owned by the defendant
that is not driven in California.
(k) If a person has a medical problem that does not permit the
person to breathe with sufficient strength to activate the device,
then that person shall only have the suspension option.
(l) This section does not restrict a court from requiring
installation of an ignition interlock device and prohibiting
operation of a motor vehicle unless that vehicle is equipped with a
functioning, certified ignition interlock device for a person to whom
subdivision (a) or (b) does not apply. The term of the restriction
shall be determined by the court for a period not to exceed three
years from the date of conviction. The court shall notify the
Department of Motor Vehicles, as specified in subdivision (a) of
Section 1803, of the terms of the restrictions in accordance with
subdivision (a) of Section 1804. The Department of Motor Vehicles
shall place the restriction in the person's records in the Department
of Motor Vehicles.
(m) For the purposes of this section, "vehicle" does not include a
motorcycle until the state certifies an ignition interlock device
that can be installed on a motorcycle. Any person subject to an
ignition interlock device restriction shall not operate a motorcycle
for the duration of the ignition interlock device restriction period.
(n) For the purposes of this section, "owned" means solely owned
or owned in conjunction with another person or legal entity. For
purposes of this section, "operates" includes operating vehicles that
are not owned by the person subject to this section.
(o) For the purposes of this section, "bypass" includes, but is
not limited to, either of the following:
(1) Any combination of failing or not taking the ignition
interlock device rolling retest three consecutive times.
(2) Any incidence of failing or not taking the ignition interlock
device rolling retest, when not followed by an incidence of passing
the ignition interlock rolling retest prior to turning off the
vehicle's engine.
SEC. 203. Section 23593 of the Vehicle Code is amended to read:
23593.
(a) The court shall advise a person convicted of a violation of
Section 23103, as specified in Section 23103.5, or a violation of
Section 23152 or 23153, as follows:"You are hereby advised that being
under the influence of alcohol or drugs, or both, impairs your
ability to safely operate a motor vehicle. Therefore, it is extremely
dangerous to human life to drive while under the influence of
alcohol or drugs, or both. If you continue to drive while under the
influence of alcohol or drugs, or both, and, as a result of that
driving, someone is killed, you can be charged with murder."
(b) The advisory statement may be included in a plea form, if
used, or the fact that the advice was given may be specified on the
record.
(c) The court shall include on the abstract of the conviction or
violation submitted to the department under Section 1803 or 1816, the
fact that the person has been advised as required under subdivision
(a).
SEC. 204. Section 27362 of the Vehicle Code is amended to read:
27362.
(a) A manufacturer, wholesaler, or retailer shall not sell, offer
for sale, or install in a motor vehicle, a child passenger restraint
system that does not conform to all applicable federal motor vehicle
safety standards on the date of manufacture. Responsibility for
compliance with this section shall rest with the individual selling
the system, offering the system for sale, or installing the system. A
person who violates this section is guilty of a misdemeanor and
shall be punished as follows:
(1) Upon a first conviction, by a fine not exceeding four hundred
dollars ($400), or by imprisonment in a county jail for a period of
not more than 90 days, or both.
(2) Upon a second or subsequent conviction, by a fine not
exceeding one thousand dollars ($1,000), or by imprisonment in a
county jail for a period of not more than 180 days, or both.
(b) The fines collected for a violation of this section shall be
allocated as follows:
(1) (A) Sixty percent to the county or city health department
where the violation occurred, to be used for a child passenger
restraint low-cost purchase or loaner program which shall include,
but not be limited to, education on the proper installation and use
of a child passenger restraint system. The county health department
shall designate a coordinator to facilitate the creation of a special
account and to develop a relationship with the superior court to
facilitate the transfer of funds to the program. The county may
contract for the implementation of the program. Prior to obtaining
possession of a child passenger restraint system pursuant to this
section, a person shall receive information relating to the
importance of utilizing that system.
(B) As the proceeds from fines become available, county health
departments shall prepare and maintain a listing of all child
passenger restraint low-cost purchase or loaner programs in their
counties, including a semiannual verification that all programs
listed are in existence. Each county shall forward the listing to the
Office of Traffic Safety in the Business, Transportation and Housing
Agency and the courts, birthing centers, community child health and
disability prevention programs, and county hospitals in that county,
who shall make the listing available to the public. The Office of
Traffic Safety shall maintain a listing of all of the programs in the
state.
(2) Twenty-five percent to the county for the administration of
the program.
(3) Fifteen percent to the city, to be deposited in its general
fund except that, if the violation occurred in an unincorporated
area, this amount shall be allocated to the county for purposes of
paragraph (1).
SEC. 205. Section 521 of the Water Code is amended to read:
521.
The Legislature further finds and declares all of the following:
(a) Water furnished or used without any method of determination of
the quantities of water used by the person to whom the water is
furnished has caused, and will continue to cause, waste and
unreasonable use of water, and that this waste and unreasonable use
should be identified, isolated, and eliminated.
(b) Water metering and volumetric pricing are among the most
efficient conservation tools, providing information on how much water
is being used and pricing to encourage conservation.
(c) Without water meters, it is impossible for homeowners and
businesses to know how much water they are using, thereby inhibiting
conservation, punishing those who conserve, and rewarding those who
waste water.
(d) Existing law requires the installation of a water meter as a
condition of water service provided pursuant to a connection
installed on or after January 1, 1992, but the continuing widespread
absence of water meters and the lack of volumetric pricing could
result in the inefficient use of water for municipal and industrial
uses.
(e) The benefits to be gained from metering infrastructure are not
recovered if urban water suppliers do not use this infrastructure.
(f) This chapter addresses a subject matter of statewide concern.
It is the intent of the Legislature that this chapter supersede and
preempt all enactments and other local action of cities and counties,
including charter cities and charter counties, and other local
public agencies that conflict with this chapter, other than
enactments or local actions that impose additional or more stringent
requirements regarding matters set forth in this chapter.
(g) An urban water supplier should take any available necessary
step consistent with state law to ensure that the implementation of
this chapter does not place an unreasonable burden on low-income
families.
SEC. 206. Section 525 of the Water Code is amended to read:
525.
(a) Notwithstanding any other provision of law, every water
purveyor who sells, leases, rents, furnishes, or delivers water
service to any person shall require, as a condition of new water
service on and after January 1, 1992, that a suitable water meter to
measure the water service shall be installed on the water service
facilities in accordance with this chapter. The cost of installation
of the meter shall be paid by the user of the water, and any water
purveyor may impose and collect charges for those costs.
(b) Subdivision (a) applies only to potable water.
(c) Subdivision (a) does not apply to a community water system
which serves fewer than 15 service connections used by yearlong
residents or regularly serves fewer than 25 yearlong residents, or a
single well that services the water supply of a single-family
residential home.
SEC. 207. Section 527 of the Water Code is amended to read:
527.
(a) An urban water supplier that is not subject to Section 526
shall do both of the following:
(1) Install water meters on all municipal and industrial service
connections located within its service area on or before January 1,
2025.
(2) (A) Charge each customer that has a service connection for
which a water meter has been installed based on the actual volume of
deliveries as measured by the water meter, beginning on or before
January 1, 2010.
(B) Notwithstanding subparagraph (A), in order to provide
customers with experience in volume-based water service charges, an
urban water supplier that is subject to this subdivision may delay,
for one annual seasonal cycle of water use, the use of meter-based
charges for service connections that are being converted from
nonvolume-based billing to volume-based billing.
(b) A water purveyor, including an urban water supplier, may
recover the cost of providing services related to the purchase,
installation, and operation of a water meter from rates, fees, or
charges.
SEC. 208. Section 1013 of the Water Code is amended to read:
1013.
(a) The Imperial Irrigation District, acting under a contract with
the United States for diversion and use of Colorado River water or
pursuant to the California Constitution or to this chapter, or
complying with an order of the Secretary of the Interior, a court, or
the board, to reduce through conservation measures, the volume of
the flow of water directly or indirectly into the Salton Sea, shall
not be held liable for any effects to the Salton Sea or its bordering
area resulting from the conservation measures.
(b) For the purposes of this section, and during the term of the
Quantification Settlement Agreement as defined in subdivision (a) of
Chapter 617 of the Statutes of 2002, "land fallowing conservation
measures" means the generation of water to be made available for
transfer or for environmental mitigation purposes by fallowing land
or removing land from agricultural production regardless of whether
the fallowing or removal from agricultural production is temporary or
long term, and regardless of whether it occurs in the course of
normal and customary agricultural production, if both of the
following apply:
(1) The measure is part of a land fallowing conservation plan that
includes mitigation provisions adopted by the Board of Directors of
the Imperial Irrigation District.
(2) Before the Imperial Irrigation District adopts a land
fallowing conservation plan, the district shall consult with the
Board of Supervisors of the County of Imperial and obtain the board's
assessment of whether the proposed land fallowing conservation plan
includes adequate measures to avoid or mitigate unreasonable economic
or environmental impacts in the County of Imperial.
(c) In order to minimize impacts on the environment, during the
term of the Quantification Settlement Agreement and for six years
thereafter, in any evaluation or assessment of the Imperial
Irrigation District's use of water, it shall be conclusively presumed
that any water conserved, or used for mitigation purposes, through
land fallowing conservation measures has been conserved in the same
volume as if conserved by efficiency improvements, such as by
reducing canal seepage, canal spills, or surface or subsurface runoff
from irrigation fields.
(d) If a party to the Quantification Settlement Agreement engages
in water efficiency conservation measures or land fallowing
conservation measures to carry out a Quantification Settlement
Agreement transfer or to mitigate the environmental impacts of a
Quantification Settlement Agreement transfer, there may be no
forfeiture, diminution, or impairment of the right of that party to
use of the water conserved.
(e) During the period that the Quantification Settlement Agreement
is in effect and the Imperial Irrigation District is meeting its
water delivery obligations under the Quantification Settlement
Agreement and its water delivery obligations under subdivision (c) of
Section 2081.7 of the Fish and Game Code, no person or local agency,
as defined in Section 21062 of the Public Resources Code, may seek
to obtain additional conserved Colorado River water from the
district, voluntarily or involuntarily, until the district has
adopted a resolution offering to make conserved Colorado River water
available.
(f) During the initial term in which the Quantification Settlement
Agreement is in effect, any water transferred by the Imperial
Irrigation District shall be subject to an ecosystem restoration fee
established by the Department of Fish and Game, in consultation with
the board, to cover the proportional impacts to the Salton Sea of the
additional water transfer. The fee shall not exceed 10 percent of
the amount of any compensation received for the transfer of the
water. The fee shall be deposited in the Salton Sea Restoration Fund.
This fee shall not apply to the following transfers:
(1) Transfers to meet water delivery obligations under the
Quantification Settlement Agreement and related agreements, as
defined in that agreement.
(2) Transfers to comply with subdivision (c) of Section 2081.7 of
the Fish and Game Code.
(3) Transfers pursuant to a Defensive Transfer Agreement as
defined in the Agreement for Acquisition of Conserved Water between
the Imperial Irrigation District and the Metropolitan Water District
of Southern California.
(g) Subdivisions (c), (d), (e), and (f) shall not become operative
unless the parties have executed the Quantification Settlement
Agreement on or before October 12, 2003.
(h) This section may not be construed to exempt the Imperial
Irrigation District from any requirement established under the
California Environmental Quality Act (Division 13 (commencing with
Section 21000) of the Public Resources Code).
SEC. 209. Section 12997 of the Water Code is amended to read:
12997.
(a) Not later than June 30, 2005, the director shall establish
the Alluvial Fan Task Force with broad membership, to the maximum
extent possible, from local, state, and federal government and other
stakeholders to review the state of knowledge regarding alluvial fan
flood plains, determine future research needs, and prepare
recommendations relating to alluvial fan flood plain management, with
an emphasis on alluvial fan flood plains that are being considered
for development in accordance with local general plans. The director,
in consultation with representatives of the Counties of San
Bernardino, Riverside, Los Angeles, Ventura, Santa Barbara, San Luis
Obispo, Kern, Orange, Imperial, and San Diego, may enter into an
interagency agreement with the California State University, the
University of California, or other appropriate agency, to oversee the
task force.
(b) The director shall determine the composition of the task
force. The task force may include, but need not be limited to,
representatives from all of the following entities or groups, subject
to the consent of those entities or groups:
(1) City and county governments in the Counties of San Bernardino,
Riverside, Los Angeles, Ventura, Santa Barbara, San Luis Obispo,
Kern, Orange, Imperial, and San Diego.
(2) The department.
(3) Other local, state, and federal government agencies and
stakeholders that represent relevant environmental, agricultural, and
construction interests.
(c) The Alluvial Fan Task Force shall develop a model ordinance on
alluvial fan flooding to be made available to communities subject to
alluvial fan flooding.
(d) The Alluvial Fan Task Force shall prepare and submit a report,
with findings and recommendations, to the Legislature not later than
June 30, 2006.
SEC. 210. Section 13305 of the Water Code is amended to read:
13305.
(a) Upon determining that a condition of pollution or nuisance
exists that has resulted from a nonoperating industrial or business
location within its region, a regional board may cause notice of the
condition to be posted upon the property in question. The notice
shall state that the condition constitutes either a condition of
pollution or nuisance that is required to be abated by correction of
the condition, or a condition that will be corrected by the city,
county, other public agency, or regional board at the property owner'
s expense. The notice shall further state that all property owners
having any objections to the proposed correction of the condition may
attend a hearing to be held by the regional board at a time not less
than 10 days from the posting of the notice.
(b) Notice of the hearing prescribed in this section shall be
given in the county where the property is located pursuant to Section
6061 of the Government Code.
(c) In addition to posting and publication, notice as required in
this section shall be mailed to the property owners as their names
and addresses appear from the last equalized assessment roll.
(d) At the time stated in the notices, the regional board shall
hear and consider all objections or protests, if any, to the proposed
correction of the condition, and may continue the hearing from time
to time.
(e) (1) After final action is taken by the regional board on the
disposition of any protests or objections, or if no protests or
objections are received, the regional board shall request the city,
county, or other public agency in which the condition of pollution or
nuisance exists to abate the condition or nuisance.
(2) If the city, county, or other public agency does not abate the
condition within a reasonable time, the regional board shall cause
the condition to be abated. The regional board may proceed by force
account, contract or other agreement, or any other method deemed most
expedient by the regional board, and shall apply to the state board
for the necessary funds.
(3) The regional board shall be permitted reasonable access to the
affected property as necessary to perform any cleanup, abatement, or
other remedial work. Access shall be obtained with the consent of
the owner or possessor of the property, or, if the consent is
withheld, with a warrant duly issued pursuant to the procedure
described in Title 13 (commencing with Section 1822.50) of Part 3 of
the Code of Civil Procedure. However, in the event of an emergency
affecting public health or safety, the regional board may enter the
property without consent or the issuance of a warrant.
(f) The owner of the property on which the condition exists, or is
created, is liable for all reasonable costs incurred by the regional
board or any city, county, or public agency in abating the
condition. The amount of the cost for abating the condition upon the
property in question constitutes a lien upon the property so posted
upon the recordation of a notice of lien, which identifies the
property on which the condition was abated, the amount the lien, and
the owner of record of the property, in the office of the county
recorder of the county in which the property is located. Upon
recordation, the lien has the same force, effect, and priority as a
judgment lien, except that it attaches only to the property so posted
and described in the notice of lien, and shall continue for 10 years
from the time of the recording of the notice unless sooner released
or otherwise discharged. The lien may be foreclosed by an action
brought by the city, county, other public agency, or state board, on
behalf of the regional board, for a money judgment. Money recovered
by a judgment in favor of the state board shall be returned to the
State Water Pollution Cleanup and Abatement Account.
(g) The city, county, other public agency, or state board on
behalf of a regional board, may, at any time, release all, or any
portion, of the property subject to a lien imposed pursuant to
subdivision (f) from the lien or subordinate the lien to other liens
and encumbrances if it determines that the amount owed is
sufficiently secured by a lien on other property or that the release
or subordination of the lien will not jeopardize the collection of
the amount owed. A certificate by the state board, city, county, or
other public agency to the effect that any property has been released
from the lien or that the lien has been subordinated to other liens
and encumbrances is conclusive evidence that the property has been
released or that the lien has been subordinated as provided in the
certificate.
(h) As used in this section, the words "nonoperating" or "not in
operation" mean the business is not conducting routine operations
usually associated with that kind of business.
(i) Nothing in this section limits the authority of any state
agency under any other law or regulation to enforce or administer any
cleanup or abatement activity.
SEC. 211. Section 13387 of the Water Code is amended to read:
13387.
(a) Any person who knowingly or negligently does any of the
following is subject to criminal penalties as provided in
subdivisions (b), (c), and (d):
(1) Violates Section 13375 or 13376.
(2) Violates any waste discharge requirements or dredged or fill
material permit issued pursuant to this chapter or any water quality
certification issued pursuant to Section 13160.
(3) Violates any order or prohibition issued pursuant to Section
13243 or 13301, if the activity subject to the order or prohibition
is subject to regulation under this chapter.
(4) Violates any requirement of Section 301, 302, 306, 307, 308,
318, 401, or 405 of the Clean Water Act (33 U.S.C. Sec. 1311, 1312,
1316, 1317, 1318, 1328, 1341, or 1345), as amended.
(5) Introduces into a sewer system or into a publicly owned
treatment works any pollutant or hazardous substances that the person
knew or reasonably should have known could cause personal injury or
property damage.
(6) Introduces any pollutant or hazardous substance into a sewer
system or into a publicly owned treatment works, except in accordance
with any applicable pretreatment requirements, which causes the
treatment works to violate waste discharge requirements.
(b) Any person who negligently commits any of the violations set
forth in subdivision (a) shall, upon conviction, be punished by a
fine of not less than five thousand dollars ($5,000), nor more than
twenty-five thousand dollars ($25,000), for each day in which the
violation occurs, or by imprisonment for not more than one year in a
county jail, or both. If a conviction of a person is for a violation
committed after a first conviction of the person under this
subdivision, subdivision (c), or subdivision (d), punishment shall be
by a fine of not more than fifty thousand dollars ($50,000) for each
day in which the violation occurs, or by imprisonment for not more
than two years, or by both.
(c) Any person who knowingly commits any of the violations set
forth in subdivision (a) shall, upon conviction, be punished by a
fine of not less than five thousand dollars ($5,000), nor more than
fifty thousand dollars ($50,000), for each day in which the violation
occurs, or by imprisonment in the state prison for not more than
three years, or by both. If a conviction of a person is for a
violation committed after a first conviction of the person under this
subdivision or subdivision (d), punishment shall be by a fine of not
more than one hundred thousand dollars ($100,000) for each day in
which the violation occurs, or by imprisonment in the state prison
for not more than six years, or by both.
(d) (1) Any person who knowingly commits any of the violations set
forth in subdivision (a), and who knows at the time that the person
thereby places another person in imminent danger of death or serious
bodily injury, shall, upon conviction, be subject to a fine of not
more than two hundred fifty thousand dollars ($250,000) or
imprisonment in the state prison for not more than 15 years, or both.
A person that is an organization shall, upon conviction under this
subdivision, be subject to a fine of not more than one million
dollars ($1,000,000). If a conviction of a person is for a violation
committed after a first conviction of the person under this
subdivision, the maximum punishment shall be a fine of not more than
five hundred thousand dollars ($500,000) or imprisonment in the state
prison for not more than 30 years, or both. A person that is an
organization shall, upon conviction for a violation committed after a
first conviction of the person under this subdivision, be subject to
a fine of not more than two million dollars ($2,000,000). Any fines
imposed pursuant to this subdivision shall be in addition to any
fines imposed pursuant to subdivision (c).
(2) In determining whether a defendant who is an individual knew
that the defendant's conduct placed another person in imminent danger
of death or serious bodily injury, the defendant is responsible only
for actual awareness or actual belief that the defendant possessed,
and knowledge possessed by a person other than the defendant, but not
by the defendant personally, cannot be attributed to the defendant.
(e) Any person who knowingly makes any false statement,
representation, or certification in any record, report, plan, notice
to comply, or other document filed with a regional board or the state
board, or who knowingly falsifies, tampers with, or renders
inaccurate any monitoring device or method required under this
division shall be punished by a fine of not more than twenty-five
thousand dollars ($25,000), or by imprisonment in the state prison
for not more than two years, or by both. If a conviction of a person
is for a violation committed after a first conviction of the person
under this subdivision, punishment shall be by a fine of not more
than twenty-five thousand dollars ($25,000) per day of violation, or
by imprisonment in the state prison for not more than four years, or
by both.
(f) For purposes of this section, a single operational upset which
leads to simultaneous violations of more than one pollutant
parameter shall be treated as a single violation.
(g) For purposes of this section, "organization," "serious bodily
injury," "person," and "hazardous substance" shall have the same
meaning as in Section 309(c) of the Clean Water Act (33 U.S.C. Sec.
1319(c)), as amended.
(h) (1) Subject to paragraph (2), funds collected pursuant to this
section shall be deposited in the State Water Pollution Cleanup and
Abatement Account.
(2) (A) Notwithstanding any other provision of law, fines
collected for a violation of a water quality certification in
accordance with paragraph (2) of subdivision (a) or for a violation
of Section 401 of the Clean Water Act (33 U.S.C. Sec. 1341) in
accordance with paragraph (4) of subdivision (a) shall be deposited
in the Water Discharge Permit Fund and separately accounted for in
that fund.
(B) The funds described in subparagraph (A) shall be expended by
the state board, upon appropriation by the Legislature, to assist
regional boards, and other public agencies with authority to clean up
waste or abate the effects of the waste, in cleaning up or abating
the effects of the waste on waters of the state, or for the purposes
authorized in Section 13443.
SEC. 212. Section 35539.13 of the Water Code is amended to read:
35539.13.
(a) The districts may convey water in a drainage course within the
boundaries of each respective district for the purposes of treating
and reusing that water, if the conveyance, treatment, and reuse meet
the requirements of state and federal law.
(b) For purposes of this section, "drainage course" refers to a
drainage course with regard to which each respective district has a
right of use.
(c) For purposes of this section, "water" refers to water with
regard to which each respective district has a right of use.
SEC. 213. Section 294 of the Welfare and Institutions Code is
amended to read:
294.
The social worker or probation officer shall give notice of a
selection and implementation hearing held pursuant to Section 366.26
in the following manner:
(a) Notice of the hearing shall be given to the following persons:
(1) The mother.
(2) The fathers, presumed and alleged.
(3) The child, if the child is 10 years of age or older.
(4) Any known sibling of the child who is the subject of the
hearing if that sibling either is the subject of a dependency
proceeding or has been adjudged to be a dependent child of the
juvenile court. If the sibling is 10 years of age or older, the
sibling, the sibling's caregiver, and the sibling's attorney. If the
sibling is under 10 years of age, the sibling's caregiver and the
sibling's attorney. However, notice is not required to be given to
any sibling whose matter is calendared in the same court on the same
day.
(5) The grandparents of the child, if their address is known and
if the parent's whereabouts are unknown.
(6) All counsel of record.
(7) If the court knows or has reason to know that an Indian child
is involved, then to the Indian custodian and the tribe of that
child. If the identity or location of the parent or Indian custodian
and the tribe cannot be determined, notice shall be given to the
Bureau of Indian Affairs.
(b) The following persons shall not be notified of the hearing:
(1) A parent who has relinquished the child to the State
Department of Social Services or to a licensed adoption agency for
adoption, and the relinquishment has been accepted and filed with
notice as required under Section 8700 of the Family Code.
(2) An alleged father who has denied paternity and has executed a
waiver of the right to notice of further proceedings.
(3) A parent whose parental rights have been terminated.
(c) (1) Service of the notice shall be completed at least 45 days
before the hearing date. Service is deemed complete at the time the
notice is personally delivered to the person named in the notice or
10 days after the notice has been placed in the mail, or at the
expiration of the time prescribed by the order for publication.
(2) In the case of an Indian child, notice to the Indian custodian
and the tribe shall be completed at least 10 days before the
hearing.
(3) In the case of an Indian child, if notice is given to the
Bureau of Indian Affairs, the bureau shall have 15 days after receipt
to provide the requisite notice to the parent or Indian custodian
and the tribe.
(4) Service of notice in cases where publication is ordered shall
be completed at least 30 days before the date of the hearing.
(d) Regardless of the type of notice required, or the manner in
which it is served, once the court has made the initial finding that
notice has properly been given to the parent, or to any person
entitled to receive notice pursuant to this section, subsequent
notice for any continuation of a Section 366.26 hearing may be by
first-class mail to any last known address, by an order made pursuant
to Section 296, or by any other means that the court determines is
reasonably calculated, under any circumstance, to provide notice of
the continued hearing. However, if the recommendation changes from
the recommendation contained in the notice previously found to be
proper, notice shall be provided to the parent, and to any person
entitled to receive notice pursuant to this section, regarding that
subsequent hearing.
(e) The notice shall contain the following information:
(1) The date, time, and place of the hearing.
(2) The right to appear.
(3) The parents' right to counsel.
(4) The nature of the proceedings.
(5) The recommendation of the supervising agency.
(6) A statement that, at the time of hearing, the court is
required to select a permanent plan of adoption, legal guardianship,
or long-term foster care for the child.
(7) In the case of an Indian child, the notice shall contain a
statement that the parent or Indian custodian and the tribe have a
right to intervene at any point in the proceedings. The notice shall
also include a statement that the parent or Indian custodian and the
tribe shall, upon request, be granted up to 20 additional days to
prepare for the proceedings.
(f) Notice to the parents may be given in any one of the following
manners:
(1) If the parent is present at the hearing at which the court
schedules a hearing pursuant to Section 366.26, the court shall
advise the parent of the date, time, and place of the proceedings,
his or her right to counsel, the nature of the proceedings, and that
at the proceedings the court shall select and implement a plan of
adoption, legal guardianship, or long-term foster care for the child.
The court shall direct the parent to appear for the proceedings and
then direct that the parent be notified thereafter by first-class
mail to the parent's usual place of residence or business only.
(2) Certified mail, return receipt requested, to the parent's last
known mailing address. This notice shall be sufficient if the child
welfare agency receives a return receipt signed by the parent.
(3) Personal service to the parent named in the notice.
(4) Delivery to a competent person who is at least 18 years of age
at the parent's usual place of residence or business, and thereafter
mailed to the parent named in the notice by first-class mail at the
place where the notice was delivered.
(5) If the residence of the parent is outside the state, service
may be made as described in paragraph (1), (3), or (4) or by
certified mail, return receipt requested.
(6) If the recommendation of the probation officer or social
worker is legal guardianship or long-term foster care, service may be
made by first-class mail to the parent's usual place of residence or
business.
(7) If the parent's whereabouts are unknown and the parent cannot,
with reasonable diligence, be served in any manner specified in
paragraphs (1) to (6), inclusive, the petitioner shall file an
affidavit with the court at least 75 days before the hearing date,
stating the name of the parent and describing the efforts made to
locate and serve the parent.
(A) If the court determines that there has been due diligence in
attempting to locate and serve the parent and the probation officer
or social worker recommends adoption, service shall be to that parent'
s attorney of record, if any, by certified mail, return receipt
requested. If the parent does not have an attorney of record, the
court shall order that service be made by publication of citation
requiring the parent to appear at the date, time, and place stated in
the citation, and that the citation be published in a newspaper
designated as most likely to give notice to the parent. Publication
shall be made once a week for four consecutive weeks. Whether notice
is to the attorney of record or by publication, the court shall also
order that notice be given to the grandparents of the child by
first-class mail.
(B) If the court determines that there has been due diligence in
attempting to locate and serve the parent and the probation officer
or social worker recommends legal guardianship or long-term foster
care, no further notice is required to the parent, but the court
shall order that notice be given to the grandparents of the child by
first-class mail.
(C) In any case where the residence of the parent becomes known,
notice shall immediately be served upon the parent as provided for in
either paragraph (2), (3), (4), (5), or (6).
(8) If the identity of one or both of the parents, or alleged
parents, of the child is unknown, or if the name of one or both
parents is uncertain, then that fact shall be set forth in the
affidavit and the court, if ordering publication, shall order the
published citation to be directed to either the father or mother, or
both, of the child, and to all persons claiming to be the father or
mother of the child, naming and otherwise describing the child.
(g) Notice to the child and all counsel of record shall be by
first-class mail.
(h) In the case of an Indian child, notice to the tribe shall be
by registered mail, return receipt requested.
(i) Notwithstanding subdivision (a), if the attorney of record is
present at the time the court schedules a hearing pursuant to Section
366.26, no further notice is required, except as required by
subparagraph (A) of paragraph (7) of subdivision (f).
(j) This section shall also apply to children adjudged wards
pursuant to Section 727.31.
SEC. 214. Section 366.21 of the Welfare and Institutions Code is
amended to read:
366.21.
(a) Every hearing conducted by the juvenile court reviewing the
status of a dependent child shall be placed on the appearance
calendar. The court shall advise all persons present at the hearing
of the date of the future hearing and of their right to be present
and represented by counsel.
(b) Except as provided in Sections 294 and 295, notice of the
hearing shall be provided pursuant to Section 293.
(c) At least 10 calendar days prior to the hearing, the social
worker shall file a supplemental report with the court regarding the
services provided or offered to the parent or legal guardian to
enable him or her to assume custody and the efforts made to achieve
legal permanence for the child if efforts to reunify fail, including,
but not limited to, efforts to maintain relationships between a
child who is 10 years of age or older and has been in out-of-home
placement in a group home for six months or longer from the date the
child entered foster care and individuals who are important to the
child, consistent with the child's best interests; the progress made;
and, where relevant, the prognosis for return of the child to the
physical custody of his or her parent or legal guardian; and shall
make his or her recommendation for disposition. If the child is a
member of a sibling group described in paragraph (3) of subdivision
(a) of Section 361.5, the report and recommendation may also take
into account those factors described in subdivision (e) relating to
the child's sibling group. If the recommendation is not to return the
child to a parent or legal guardian, the report shall specify why
the return of the child would be detrimental to the child. The social
worker shall provide the parent or legal guardian, counsel for the
child, and any court-appointed child advocate with a copy of the
report, including his or her recommendation for disposition, at least
10 calendar days prior to the hearing. In the case of a child
removed from the physical custody of his or her parent or legal
guardian, the social worker shall, at least 10 calendar days prior to
the hearing, provide a summary of his or her recommendation for
disposition to any foster parents, relative caregivers, and certified
foster parents who have been approved for adoption by the State
Department of Social Services when it is acting as an adoption agency
in counties that are not served by a county adoption agency or by a
licensed county adoption agency, community care facility, or foster
family agency having the physical custody of the child.
(d) Prior to any hearing involving a child in the physical custody
of a community care facility or a foster family agency that may
result in the return of the child to the physical custody of his or
her parent or legal guardian, or in adoption or the creation of a
legal guardianship, the facility or agency shall file with the court
a report containing its recommendation for disposition. Prior to the
hearing involving a child in the physical custody of a foster parent,
a relative caregiver, or a certified foster parent who has been
approved for adoption by the State Department of Social Services when
it is acting as an adoption agency or by a licensed adoption agency,
the foster parent, relative caregiver, or the certified foster
parent who has been approved for adoption by the State Department of
Social Services when it is acting as an adoption agency in counties
that are not served by a county adoption agency or by a licensed
county adoption agency, may file with the court a report containing
his or her recommendation for disposition. The court shall consider
the report and recommendation filed pursuant to this subdivision
prior to determining any disposition.
(e) At the review hearing held six months after the initial
dispositional hearing, the court shall order the return of the child
to the physical custody of his or her parent or legal guardian unless
the court finds, by a preponderance of the evidence, that the return
of the child to his or her parent or legal guardian would create a
substantial risk of detriment to the safety, protection, or physical
or emotional well-being of
the child. The social worker shall have the burden of
establishing that detriment. The failure of the parent or legal
guardian to participate regularly and make substantive progress in
court-ordered treatment programs shall be prima facie evidence that
return would be detrimental. In making its determination, the court
shall review and consider the social worker's report and
recommendations and the report and recommendations of any child
advocate appointed pursuant to Section 356.5; and shall consider the
efforts or progress, or both, demonstrated by the parent or legal
guardian and the extent to which he or she availed himself or herself
of services provided.
Whether or not the child is returned to a parent or legal
guardian, the court shall specify the factual basis for its
conclusion that the return would be detrimental or would not be
detrimental. The court also shall make appropriate findings pursuant
to subdivision (a) of Section 366; and, where relevant, shall order
any additional services reasonably believed to facilitate the return
of the child to the custody of his or her parent or legal guardian.
The court shall also inform the parent or legal guardian that if the
child cannot be returned home by the 12-month permanency hearing, a
proceeding pursuant to Section 366.26 may be instituted. This section
does not apply in a case where, pursuant to Section 361.5, the court
has ordered that reunification services shall not be provided.
If the child was under the age of three years on the date of the
initial removal, or is a member of a sibling group described in
paragraph (3) of subdivision (a) of Section 361.5, and the court
finds by clear and convincing evidence that the parent failed to
participate regularly and make substantive progress in a
court-ordered treatment plan, the court may schedule a hearing
pursuant to Section 366.26 within 120 days. If, however, the court
finds there is a substantial probability that the child, who was
under the age of three years on the date of initial removal or is a
member of a sibling group described in paragraph (3) of subdivision
(a) of Section 361.5, may be returned to his or her parent or legal
guardian within six months or that reasonable services have not been
provided, the court shall continue the case to the 12-month
permanency hearing.
For the purpose of placing and maintaining a sibling group
together in a permanent home, the court, in making its determination
to schedule a hearing pursuant to Section 366.26 for some or all
members of a sibling group, as described in paragraph (3) of
subdivision (a) of Section 361.5, shall review and consider the
social worker's report and recommendations. Factors the report shall
address, and the court shall consider, may include, but need not be
limited to, whether the sibling group was removed from parental care
as a group, the closeness and strength of the sibling bond, the ages
of the siblings, the appropriateness of maintaining the sibling group
together, the detriment to the child if sibling ties are not
maintained, the likelihood of finding a permanent home for the
sibling group, whether the sibling group is currently placed together
in a preadoptive home or has a concurrent plan goal of legal
permanency in the same home, the wishes of each child whose age and
physical and emotional condition permits a meaningful response, and
the best interest of each child in the sibling group. The court shall
specify the factual basis for its finding that it is in the best
interest of each child to schedule a hearing pursuant to Section
366.26 in 120 days for some or all of the members of the sibling
group.
If the child was removed initially under subdivision (g) of
Section 300 and the court finds by clear and convincing evidence that
the whereabouts of the parent are still unknown, or the parent has
failed to contact and visit the child, the court may schedule a
hearing pursuant to Section 366.26 within 120 days. If the court
finds by clear and convincing evidence that the parent has been
convicted of a felony indicating parental unfitness, the court may
schedule a hearing pursuant to Section 366.26 within 120 days.
If the child had been placed under court supervision with a
previously noncustodial parent pursuant to Section 361.2, the court
shall determine whether supervision is still necessary. The court may
terminate supervision and transfer permanent custody to that parent,
as provided for by paragraph (1) of subdivision (b) of Section
361.2.
In all other cases, the court shall direct that any reunification
services previously ordered shall continue to be offered to the
parent or legal guardian pursuant to the time periods set forth in
subdivision (a) of Section 361.5, provided that the court may modify
the terms and conditions of those services.
If the child is not returned to his or her parent or legal
guardian, the court shall determine whether reasonable services that
were designed to aid the parent or legal guardian in overcoming the
problems that led to the initial removal and the continued custody of
the child have been provided or offered to the parent or legal
guardian. The court shall order that those services be initiated,
continued, or terminated.
(f) The permanency hearing shall be held no later than 12 months
after the date the child entered foster care, as that date is
determined pursuant to subdivision (a) of Section 361.5. At the
permanency hearing, the court shall determine the permanent plan for
the child, which shall include a determination of whether the child
will be returned to the child's home and, if so, when, within the
time limits of subdivision (a) of Section 361.5. The court shall
order the return of the child to the physical custody of his or her
parent or legal guardian unless the court finds, by a preponderance
of the evidence, that the return of the child to his or her parent or
legal guardian would create a substantial risk of detriment to the
safety, protection, or physical or emotional well-being of the child.
The social worker shall have the burden of establishing that
detriment. The court shall also determine whether reasonable services
that were designed to aid the parent or legal guardian to overcome
the problems that led to the initial removal and continued custody of
the child have been provided or offered to the parent or legal
guardian. For each youth 16 years of age and older, the court shall
also determine whether services have been made available to assist
him or her in making the transition from foster care to independent
living. The failure of the parent or legal guardian to participate
regularly and make substantive progress in court-ordered treatment
programs shall be prima facie evidence that return would be
detrimental. In making its determination, the court shall review and
consider the social worker's report and recommendations and the
report and recommendations of any child advocate appointed pursuant
to Section 356.5, shall consider the efforts or progress, or both,
demonstrated by the parent or legal guardian and the extent to which
he or she availed himself or herself of services provided, and shall
make appropriate findings pursuant to subdivision (a) of Section 366.
Whether or not the child is returned to his or her parent or legal
guardian, the court shall specify the factual basis for its
decision. If the child is not returned to a parent or legal guardian,
the court shall specify the factual basis for its conclusion that
the return would be detrimental. The court also shall make a finding
pursuant to subdivision (a) of Section 366.
(g) If the time period in which the court-ordered services were
provided has met or exceeded the time period set forth in paragraph
(1), (2), or (3) of subdivision (a) of Section 361.5, as appropriate,
and a child is not returned to the custody of a parent or legal
guardian at the permanency hearing held pursuant to subdivision (f),
the court shall do one of the following:
(1) Continue the case for up to six months for a permanency review
hearing, provided that the hearing shall occur within 18 months of
the date the child was originally taken from the physical custody of
his or her parent or legal guardian. The court shall continue the
case only if it finds that there is a substantial probability that
the child will be returned to the physical custody of his or her
parent or legal guardian and safely maintained in the home within the
extended period of time or that reasonable services have not been
provided to the parent or legal guardian. For the purposes of this
section, in order to find a substantial probability that the child
will be returned to the physical custody of his or her parent or
legal guardian and safely maintained in the home within the extended
period of time, the court shall be required to find all of the
following:
(A) That the parent or legal guardian has consistently and
regularly contacted and visited with the child.
(B) That the parent or legal guardian has made significant
progress in resolving problems that led to the child's removal from
the home.
(C) The parent or legal guardian has demonstrated the capacity and
ability both to complete the objectives of his or her treatment plan
and to provide for the child's safety, protection, physical and
emotional well-being, and special needs.
For purposes of this subdivision, the court's decision to continue
the case based on a finding or substantial probability that the
child will be returned to the physical custody of his or her parent
or legal guardian is a compelling reason for determining that a
hearing held pursuant to Section 366.26 is not in the best interests
of the child.
The court shall inform the parent or legal guardian that if the
child cannot be returned home by the next permanency review hearing,
a proceeding pursuant to Section 366.26 may be instituted. The court
may not order that a hearing pursuant to Section 366.26 be held
unless there is clear and convincing evidence that reasonable
services have been provided or offered to the parent or legal
guardian.
(2) Order that a hearing be held within 120 days, pursuant to
Section 366.26, but only if the court does not continue the case to
the permanency planning review hearing and there is clear and
convincing evidence that reasonable services have been provided or
offered to the parents or legal guardians.
(3) Order that the child remain in long-term foster care, but only
if the court finds by clear and convincing evidence, based upon the
evidence already presented to it, including a recommendation by the
State Department of Social Services when it is acting as an adoption
agency in counties that are not served by a county adoption agency or
by a licensed county adoption agency, that there is a compelling
reason for determining that a hearing held pursuant to Section 366.26
is not in the best interest of the child because the child is not a
proper subject for adoption and has no one willing to accept legal
guardianship. For purposes of this section, a recommendation by the
State Department of Social Services when it is acting as an adoption
agency in counties that are not served by a county adoption agency or
by a licensed county adoption agency that adoption is not in the
best interest of the child shall constitute a compelling reason for
the court's determination. That recommendation shall be based on the
present circumstances of the child and may not preclude a different
recommendation at a later date if the child's circumstances change.
If the court orders that a child who is 10 years of age or older
remain in long-term foster care at a group home, the court shall
determine whether the agency has made reasonable efforts to maintain
the child's relationships with individuals other than the child's
siblings who are important to the child, consistent with the child's
best interests, and may make any appropriate order to ensure that
those relationships are maintained.
(h) In any case in which the court orders that a hearing pursuant
to Section 366.26 shall be held, it shall also order the termination
of reunification services to the parent or legal guardian. The court
shall continue to permit the parent or legal guardian to visit the
child pending the hearing unless it finds that visitation would be
detrimental to the child. The court shall make any other appropriate
orders to enable the child to maintain relationships with
individuals, other than the child's siblings, who are important to
the child, consistent with the child's best interests.
(i) Whenever a court orders that a hearing pursuant to Section
366.26 shall be held, it shall direct the agency supervising the
child and the licensed county adoption agency, or the State
Department of Social Services when it is acting as an adoption agency
in counties that are not served by a county adoption agency, to
prepare an assessment that shall include all of the following:
(1) Current search efforts for an absent parent or parents or
legal guardians.
(2) A review of the amount of and nature of any contact between
the child and his or her parents or legal guardians and other members
of his or her extended family since the time of placement. Although
the extended family of each child shall be reviewed on a case-by-case
basis, "extended family" for the purpose of this paragraph shall
include, but not be limited to, the child's siblings, grandparents,
aunts, and uncles.
(3) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(4) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or legal guardian,
particularly the caretaker, to include a social history including
screening for criminal records and prior referrals for child abuse or
neglect, the capability to meet the child's needs, and the
understanding of the legal and financial rights and responsibilities
of adoption and guardianship. If a proposed guardian is a relative of
the minor, and the relative was assessed for foster care placement
of the minor prior to January 1, 1998, the assessment shall also
consider, but need not be limited to, all of the factors specified in
subdivision (a) of Section 361.3.
(5) The relationship of the child to any identified prospective
adoptive parent or legal guardian, the duration and character of the
relationship, the motivation for seeking adoption or guardianship,
and a statement from the child concerning placement and the adoption
or guardianship, unless the child's age or physical, emotional, or
other condition precludes his or her meaningful response, and if so,
a description of the condition.
(6) A description of efforts to be made to identify a prospective
adoptive parent or legal guardian, including, but not limited to,
child-specific recruitment and listing on an adoption exchange.
(7) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(j) If, at any hearing held pursuant to Section 366.26, a
guardianship is established for the minor with a relative, and
juvenile court dependency is subsequently dismissed, the relative
shall be eligible for aid under the Kin-GAP program as provided in
Article 4.5 (commencing with Section 11360) of Chapter 2 of Part 3 of
Division 9.
(k) As used in this section, "relative" means an adult who is
related to the minor by blood, adoption, or affinity within the fifth
degree of kinship, including stepparents, stepsiblings, and all
relatives whose status is preceded by the words "great,"
"great-great," or "grand," or the spouse of any of those persons even
if the marriage was terminated by death or dissolution.
(l) For purposes of this section, evidence of any of the following
circumstances may not, in and of itself, be deemed a failure to
provide or offer reasonable services:
(1) The child has been placed with a foster family that is
eligible to adopt a child, or has been placed in a preadoptive home.
(2) The case plan includes services to make and finalize a
permanent placement for the child if efforts to reunify fail.
(3) Services to make and finalize a permanent placement for the
child, if efforts to reunify fail, are provided concurrently with
services to reunify the family.
SEC. 215. Section 387 of the Welfare and Institutions Code is
amended to read:
387.
(a) An order changing or modifying a previous order by removing a
child from the physical custody of a parent, guardian, relative, or
friend and directing placement in a foster home, or commitment to a
private or county institution, shall be made only after noticed
hearing upon a supplemental petition.
(b) The supplemental petition shall be filed by the social worker
in the original matter and shall contain a concise statement of facts
sufficient to support the conclusion that the previous disposition
has not been effective in the rehabilitation or protection of the
child or, in the case of a placement with a relative, sufficient to
show that the placement is not appropriate in view of the criteria in
Section 361.3.
(c) Notwithstanding subdivision (a), dependency jurisdiction shall
be resumed for a child as to whom dependency jurisdiction has been
suspended pursuant to Section 366.5 if the jurisdiction established
pursuant to Section 601 or 602 is terminated and if, after the
issuance of a joint assessment pursuant to Section 366.5, the court
determines that the court's dependency jurisdiction should be
resumed.
(d) Upon the filing of the supplemental petition, the clerk of the
juvenile court shall immediately set the same for hearing within 30
days, and the social worker shall cause notice thereof to be served
upon the persons and in the manner prescribed by Sections 290.1 and
291.
(e) An order for the detention of the child pending adjudication
of the petition may be made only after a hearing is conducted
pursuant to Article 7 (commencing with Section 305).
SEC. 216. Section 636 of the Welfare and Institutions Code is
amended to read:
636.
(a) If it appears upon the hearing that the minor has violated an
order of the juvenile court or has escaped from a commitment of the
juvenile court or that it is a matter of immediate and urgent
necessity for the protection of the minor or reasonably necessary for
the protection of the person or property of another that he or she
be detained or that the minor is likely to flee to avoid the
jurisdiction of the court, and that continuance in the home is
contrary to the minor's welfare, the court may make its order that
the minor be detained in the juvenile hall or other suitable place
designated by the juvenile court for a period not to exceed 15
judicial days and shall enter said order together with its findings
of fact in support thereof in the records of the court. The
circumstances and gravity of the alleged offense may be considered,
in conjunction with other factors, to determine whether it is a
matter of immediate and urgent necessity for the protection of the
minor or the person or property of another that the minor be
detained.
(b) If the court finds that the criteria of Section 628.1 are
applicable, the court shall place the minor on home supervision for a
period not to exceed 15 judicial days, and shall enter the order
together with its findings of fact in support thereof in the records
of the court. If the court releases the minor on home supervision,
the court may continue, modify, or augment any conditions of release
previously imposed by the probation officer, or may impose new
conditions on a minor released for the first time. If there are new
or modified conditions, the minor shall be required to sign a written
promise to obey those conditions pursuant to Section 628.1.
(c) If the probation officer is recommending that the minor be
detained, the probation officer shall submit to the court
documentation, as follows:
(1) Documentation that continuance in the home is contrary to the
minor's welfare shall be submitted to the court as part of the
detention report prepared pursuant to Section 635.
(2) Documentation that reasonable efforts were made to prevent or
eliminate the need for removal of the minor from the home and
documentation of the nature and results of the services provided
shall be submitted to the court either as part of the detention
report prepared pursuant to Section 635, or as part of a case plan
prepared pursuant to Section 636.1, but in no case later than 60 days
from the date of detention.
(d) Before detaining the minor, the court shall determine whether
continuance in the home is contrary to the minor's welfare and
whether there are available services that would prevent the need for
further detention. The court shall make that determination on a
case-by-case basis and shall make reference to the documentation
provided by the probation officer or other evidence relied upon in
reaching its decision.
(1) If the minor can be returned to the custody of his or her
parent or legal guardian at the detention hearing, through the
provision of services to prevent removal, the court shall release the
minor to the physical custody of his or her parent or legal guardian
and order that those services be provided.
(2) If the minor cannot be returned to the custody of his or her
parent or legal guardian at the detention hearing, the court shall
state the facts upon which the detention is based. The court shall
make the following findings on the record and reference the probation
officer's report or other evidence relied upon to make its
determinations:
(A) Whether continuance in the home of the parent or legal
guardian is contrary to the minor's welfare.
(B) Whether reasonable efforts have been made to safely maintain
the minor in the home of his or her parent or legal guardian and to
prevent or eliminate the need for removal of the minor from his or
her home. This finding shall be made at the detention hearing if
possible, but in no case later than 60 days following the minor's
removal from the home.
(3) If the minor cannot be returned to the custody of his or her
parent or legal guardian at the detention hearing, the court shall
make the following orders:
(A) The probation officer shall provide services as soon as
possible to enable the minor's parent or legal guardian to obtain any
assistance as may be needed to enable the parent or guardian to
effectively provide the care and control necessary for the minor to
return to the home.
(B) The minor's placement and care shall be the responsibility of
the probation department pending disposition or further order of the
court.
(4) If the matter is set for rehearing pursuant to Section 637, or
continued pursuant to Section 638, or continued for any other
reason, the court shall find that the continuance of the minor in the
parent's or guardian's home is contrary to the minor's welfare at
the initial petition hearing or order the release of the minor from
custody.
(e) Whether the minor is returned home or detained, the court
shall order the minor's parent or guardian to cooperate with the
probation officer in obtaining those services described in paragraph
(1) or in subparagraph (A) of paragraph (3).
SEC. 217. Section 740 of the Welfare and Institutions Code is
amended to read:
740.
(a) Any minor adjudged to be a ward of the court on the basis that
he or she is a person described in Section 602 and who is placed in
a community care facility shall be placed in a community care
facility within his or her county of residence, unless both of the
following apply:
(1) He or she has identifiable needs requiring specialized care
that cannot be provided in a local facility, or his or her needs
dictate physical separation from his or her family.
(2) The county of residence agrees to pay the placement county the
costs of providing services to the minor, pursuant to Section
1566.25 of the Health and Safety Code.
(b) (1) Before the placement of a minor adjudged to be a ward of
the court on the basis that he or she is a person described in
Section 602 in any community care facility outside the ward's county
of residence, the probation officer of the county making the
placement, or in the case of a Youth Authority ward, the parole
officer in charge of his or her case, shall send written notice of
the placement, including the name of the ward, the juvenile record of
the ward (including any known prior offenses), and the ward's county
of residence, to the probation officer of the county in which the
community care facility is located. It is the intention of the
Legislature, in regard to this requirement, that the probation
officer of the county making the placement, or in the case of a Youth
Authority ward, the parole officer in charge of his or her case,
shall make his or her best efforts to send, or to hand deliver, the
notice at the same time the placement is made. When that placement is
terminated, the probation officer of the county making the
placement, or in the case of a Youth Authority ward, the parole
officer in charge of his or her case, shall send notice thereof to
any person or agency receiving notification of the placement.
(2) When it has been determined that it is necessary for a ward
whose board and care is funded through the Aid to Families with
Dependent Children-Foster Care program to be placed in a county other
than the ward's parents' or guardians' county of residence, the
specific reason the out-of-county placement is necessary shall be
documented in the ward's case plan. If the reason is lack of
resources in the sending county to meet the specific needs of the
ward, those specific resources needs shall be documented in the case
plan.
(3) When it has been determined that a ward whose board and care
is funded through the Aid to Families with Dependent Children-Foster
Care program is to be placed out-of-county and that the sending
county is to maintain responsibility for supervision and visitation
of the ward, the sending county shall develop a plan of supervision
and visitation activities to be performed, and shall specify that the
sending county is responsible for performing those activities. The
sending county shall send to the receiving county a copy of the plan
of supervision and visitation, in addition to the notice of placement
required in paragraph (1), prior to placement of the ward. If
placement occurs on a holiday or weekend, the plan of supervision and
visitation and the notice of placement shall be provided to the
receiving county on or before the end of the next business day.
(4) When it has been
determined that a ward whose placement is funded through the Aid to
Families with Dependent Children-Foster Care program is to be placed
out-of-county and the sending county plans that the receiving county
shall be responsible for the supervision and visitation of the ward,
the sending county shall develop a formal agreement between the
sending and receiving counties. The formal agreement shall specify
the supervision and visitation to be provided the ward, and shall
specify that the receiving county is responsible for providing the
supervision and visitation. The formal agreement shall be approved
and signed by the sending and receiving counties prior to placement
of the ward in the receiving county. Additionally, the notice of
placement required by paragraph (1) shall be provided to the
receiving county prior to placement of the ward in that county. Upon
completion of the case plan, the sending county shall provide a copy
of the completed case plan to the receiving county.
(5) The probation department of a receiving county that has a
group home in which a minor is placed by the probation department of
another county, after adjudication of the minor for any felony
offense, may disclose to the sheriff of the receiving county or to
the municipal police department of the city in which the group home
is located, the name of the minor, the felony offense or offenses for
which the minor has been adjudicated, and the address of the group
home. This information shall be utilized only for law enforcement
purposes and may not be utilized in any manner that is inconsistent
with the rehabilitative program in which the minor has been placed or
with the progress the minor may be making in the placement program.
Notwithstanding any other provision of law, the information provided
by the probation department to a law enforcement agency under this
paragraph may be provided to other law enforcement personnel for the
limited law enforcement purposes described in this paragraph, but
shall otherwise remain confidential.
(c) A minor, the parent or guardian of any minor, and counsel
representing a minor or the parent or guardian of a minor may
petition the juvenile court for the review of any placement decision
concerning the minor made by the probation officer pursuant to
subdivision (a). The petition shall state the petitioner's
relationship to the minor and shall set forth in concise language the
grounds on which the review is sought. The court shall order that a
hearing shall be held on the petition and shall give prior notice, or
cause prior notice to be given, to the persons and by the means as
prescribed by Section 776, and, in instances in which the means of
giving notice is not prescribed by that section, then by any means as
the court prescribes.
(d) If a minor is placed in a community care facility out of his
or her county of residence and is then arrested and placed in
juvenile hall pending a jurisdictional hearing, the county of
residence shall pay to the probation department of the county of
placement all reasonable costs resulting directly from the minor's
stay in the juvenile hall, provided that these costs exceed one
hundred dollars ($100).
(e) If, as a result of the hearing in subdivision (d), the minor
is remanded back to his or her county of residence, the county of
residence shall pay to the probation department of the county of
placement, in addition to any payment made pursuant to subdivision
(d), all reasonable costs resulting directly from transporting the
minor to the county of residency, provided that these costs exceed
one hundred dollars ($100).
(f) Claims made by the probation department in the county of
placement to the county of residence, pursuant to subdivisions (d)
and (e), shall be paid within 30 days of the submission of these
claims and the probation department in the county of placement shall
bear the remaining expense.
(g) As used in this section:
(1) "Community care facility" shall be defined as provided in
Section 1502 of the Health and Safety Code.
(2) "Group home" has the same meaning as provided in paragraph (1)
of subdivision (g) of Section 80001 of Title 22 of the California
Code of Regulations.
SEC. 218. Section 827 of the Welfare and Institutions Code is
amended to read:
827.
(a) (1) Except as provided in Section 828, a case file may be
inspected only by the following:
(A) Court personnel.
(B) The district attorney, a city attorney, or city prosecutor
authorized to prosecute criminal or juvenile cases under state law.
(C) The minor who is the subject of the proceeding.
(D) His or her parents or guardian.
(E) The attorneys for the parties, judges, referees, other hearing
officers, probation officers, and law enforcement officers who are
actively participating in criminal or juvenile proceedings involving
the minor.
(F) The superintendent or designee of the school district where
the minor is enrolled or attending school.
(G) Members of the child protective agencies as defined in Section
11165.9 of the Penal Code.
(H) The State Department of Social Services to carry out its
duties pursuant to Division 9 (commencing with Section 10000), and
Part 5 (commencing with Section 7900) of Division 12, of the Family
Code to oversee and monitor county child welfare agencies, children
in foster care or receiving foster care assistance, and out-of-state
placements.
(I) Authorized legal staff or special investigators who are peace
officers who are employed by, or who are authorized representatives
of, the State Department of Social Services, as necessary to the
performance of their duties to inspect, license, and investigate
community care facilities, and to ensure that the standards of care
and services provided in those facilities are adequate and
appropriate and to ascertain compliance with the rules and
regulations to which the facilities are subject. The confidential
information shall remain confidential except for purposes of
inspection, licensing, or investigation pursuant to Chapter 3
(commencing with Section 1500) and Chapter 3.4 (commencing with
Section 1596.70) of Division 2 of the Health and Safety Code, or a
criminal, civil, or administrative proceeding in relation thereto.
The confidential information may be used by the State Department of
Social Services in a criminal, civil, or administrative proceeding.
The confidential information shall be available only to the judge or
hearing officer and to the parties to the case. Names that are
confidential shall be listed in attachments separate to the general
pleadings. The confidential information shall be sealed after the
conclusion of the criminal, civil, or administrative hearings, and
may not subsequently be released except in accordance with this
subdivision. If the confidential information does not result in a
criminal, civil, or administrative proceeding, it shall be sealed
after the State Department of Social Services decides that no further
action will be taken in the matter of suspected licensing
violations. Except as otherwise provided in this subdivision,
confidential information in the possession of the State Department of
Social Services may not contain the name of the minor.
(J) Members of children's multidisciplinary teams, persons, or
agencies providing treatment or supervision of the minor.
(K) A judge, commissioner, or other hearing officer assigned to a
family law case with issues concerning custody or visitation, or
both, involving the minor, and the following persons, if actively
participating in the family law case: a family court mediator
assigned to a case involving the minor pursuant to Article 1
(commencing with Section 3160) of Chapter 11 of Part 2 of Division 8
of the Family Code, a court-appointed evaluator or a person
conducting a court-connected child custody evaluation, investigation,
or assessment pursuant to Section 3111 or 3118 of the Family Code,
and counsel appointed for the minor in the family law case pursuant
to Section 3150 of the Family Code. Prior to allowing counsel
appointed for the minor in the family law case to inspect the file,
the court clerk may require counsel to provide a certified copy of
the court order appointing him or her as the minor's counsel.
(L) A court-appointed investigator who is actively participating
in a guardianship case involving a minor pursuant to Part 2
(commencing with Section 1500) of Division 4 of the Probate Code and
acting within the scope of his or her duties in that case.
(M) A local child support agency for the purpose of establishing
paternity and establishing and enforcing child support orders.
(N) Juvenile justice commissions as established under Section 225.
The confidentiality provisions of Section 10850 shall apply to a
juvenile justice commission and its members.
(O) Any other person who may be designated by court order of the
judge of the juvenile court upon filing a petition.
(2) Notwithstanding any other law and subject to subparagraph (A)
of paragraph (3), juvenile case files, except those relating to
matters within the jurisdiction of the court pursuant to Section 601
or 602, that pertain to a deceased child who was within the
jurisdiction of the juvenile court pursuant to Section 300, shall be
released to the public pursuant to an order by the juvenile court
after a petition has been filed and interested parties have been
afforded an opportunity to file an objection. Any information
relating to another child or which could identify another child,
except for information about the deceased, shall be redacted from the
juvenile case file prior to release, unless a specific order is made
by the juvenile court to the contrary. Except as provided in this
paragraph, the presiding judge of the juvenile court may issue an
order prohibiting or limiting access to the juvenile case file, or
any portion thereof, of a deceased child only upon a showing that
release of the juvenile case file or any portion thereof is
detrimental to the safety, protection, or physical or emotional
well-being of another child who is directly or indirectly connected
to the juvenile case that is the subject of the petition.
(3) Access to juvenile case files pertaining to matters within the
jurisdiction of the juvenile court pursuant to Section 300 shall be
limited as follows:
(A) If a juvenile case file, or any portion thereof, is privileged
or confidential pursuant to any other state law or federal law or
regulation, the requirements of that state law or federal law or
regulation prohibiting or limiting release of the juvenile case file
or any portions thereof shall prevail. Unless a person is listed in
subparagraphs (A) to (N), inclusive, of paragraph (1) and is entitled
to access under the other state law or federal law or regulation
without a court order, all those seeking access, pursuant to other
authorization, to portions of, or information relating to the
contents of, juvenile case files protected under another state law or
federal law or regulation, shall petition the juvenile court. The
juvenile court may only release the portion of, or information
relating to the contents of, juvenile case files protected by another
state law or federal law or regulation if disclosure is not
detrimental to the safety, protection, or physical or emotional
well-being of a child who is directly or indirectly connected to the
juvenile case that is the subject of the petition. This paragraph
shall not be construed to limit the ability of the juvenile court to
carry out its duties in conducting juvenile court proceedings.
(B) Prior to the release of the juvenile case file or any portion
thereof, the court shall afford due process, including a notice of
and an opportunity to file an objection to the release of the record
or report to all interested parties.
(4) A juvenile case file, any portion thereof, and information
relating to the content of the juvenile case file, may not be
disseminated by the receiving agencies to any persons or agencies,
other than those persons or agencies authorized to receive documents
pursuant to this section. Further, a juvenile case file, any portion
thereof, and information relating to the content of the juvenile case
file, may not be made as an attachment to any other documents
without the prior approval of the presiding judge of the juvenile
court, unless it is used in connection with and in the course of a
criminal investigation or a proceeding brought to declare a person a
dependent child or ward of the juvenile court.
(b) (1) While the Legislature reaffirms its belief that juvenile
court records, in general, should be confidential, it is the intent
of the Legislature in enacting this subdivision to provide for a
limited exception to juvenile court record confidentiality to promote
more effective communication among juvenile courts, family courts,
law enforcement agencies, and schools to ensure the rehabilitation of
juvenile criminal offenders as well as to lessen the potential for
drug use, violence, other forms of delinquency, and child abuse.
(2) Notwithstanding subdivision (a), written notice that a minor
enrolled in a public school, kindergarten to grade 12, inclusive, has
been found by a court of competent jurisdiction to have committed
any felony or any misdemeanor involving curfew, gambling, alcohol,
drugs, tobacco products, carrying of weapons, a sex offense listed in
Section 290 of the Penal Code, assault or battery, larceny,
vandalism, or graffiti shall be provided by the court, within seven
days, to the superintendent of the school district of attendance.
Written notice shall include only the offense found to have been
committed by the minor and the disposition of the minor's case. This
notice shall be expeditiously transmitted by the district
superintendent to the principal at the school of attendance. The
principal shall expeditiously disseminate the information to those
counselors directly supervising or reporting on the behavior or
progress of the minor. In addition, the principal shall disseminate
the information to any teacher or administrator directly supervising
or reporting on the behavior or progress of the minor whom the
principal believes needs the information to work with the pupil in an
appropriate fashion, to avoid being needlessly vulnerable or to
protect other persons from needless vulnerability.
Any information received by a teacher, counselor, or administrator
under this subdivision shall be received in confidence for the
limited purpose of rehabilitating the minor and protecting students
and staff, and shall not be further disseminated by the teacher,
counselor, or administrator, except insofar as communication with the
juvenile, his or her parents or guardians, law enforcement
personnel, and the juvenile's probation officer is necessary to
effectuate the juvenile's rehabilitation or to protect students and
staff.
An intentional violation of the confidentiality provisions of this
paragraph is a misdemeanor punishable by a fine not to exceed five
hundred dollars ($500).
(3) If a minor is removed from public school as a result of the
court's finding described in subdivision (b), the superintendent
shall maintain the information in a confidential file and shall defer
transmittal of the information received from the court until the
minor is returned to public school. If the minor is returned to a
school district other than the one from which the minor came, the
parole or probation officer having jurisdiction over the minor shall
so notify the superintendent of the last district of attendance, who
shall transmit the notice received from the court to the
superintendent of the new district of attendance.
(c) Each probation report filed with the court concerning a minor
whose record is subject to dissemination pursuant to subdivision (b)
shall include on the face sheet the school at which the minor is
currently enrolled. The county superintendent shall provide the court
with a listing of all of the schools within each school district,
within the county, along with the name and mailing address of each
district superintendent.
(d) Each notice sent by the court pursuant to subdivision (b)
shall be stamped with the instruction: "Unlawful Dissemination Of
This Information Is A Misdemeanor." Any information received from the
court shall be kept in a separate confidential file at the school of
attendance and shall be transferred to the minor's subsequent
schools of attendance and maintained until the minor graduates from
high school, is released from juvenile court jurisdiction, or reaches
the age of 18 years, whichever occurs first. After that time the
confidential record shall be destroyed. At any time after the date by
which a record required to be destroyed by this section should have
been destroyed, the minor or his or her parent or guardian shall have
the right to make a written request to the principal of the school
that the minor's school records be reviewed to ensure that the record
has been destroyed. Upon completion of any requested review and no
later than 30 days after the request for the review was received, the
principal or his or her designee shall respond in writing to the
written request and either shall confirm that the record has been
destroyed or, if the record has not been destroyed, shall explain why
destruction has not yet occurred.
Except as provided in paragraph (2) of subdivision (b), no
liability shall attach to any person who transmits or fails to
transmit any notice or information required under subdivision (b).
(e) For purposes of this section, a "juvenile case file" means a
petition filed in any juvenile court proceeding, reports of the
probation officer, and all other documents filed in that case or made
available to the probation officer in making his or her report, or
to the judge, referee, or other hearing officer, and thereafter
retained by the probation officer, judge, referee, or other hearing
officer.
SEC. 219. Section 4637.5 of the Welfare and Institutions Code is
amended to read:
4637.5.
(a) The State Department of Developmental Services shall provide
data, by regional center, regarding all vendors providing services to
regional center consumers for each fiscal year beginning with the
2003-04 fiscal year. The data shall include a list of the services
provided by each vendor and, to the extent data is available, an
unduplicated count of consumers receiving the services, the total
amount paid to each vendor for each service, and the average cost for
each service. For parent voucher services, the department shall
summarize the information for each regional center.
(b) The department shall compile the data and submit the
information to the chairs and vice chairs of each fiscal committee by
March 1 of the fiscal year following the close of the prior fiscal
year. The data shall not include personal or confidential consumer
information.
(c) The department shall evaluate and report on the adequacy of
the data provided through March 1, 2008, and recommend changes, if
needed. By March 1, 2008, the report shall be provided to the chair
and vice chair of each fiscal committee.
(d) This section shall become inoperative on July 1, 2008, and, as
of January 1, 2009, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2009, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 220. Section 4688.5 of the Welfare and Institutions Code is
amended to read:
4688.5.
(a) Notwithstanding any other provision of law to the contrary,
the department may approve a proposal or proposals by Golden Gate
Regional Center, Regional Center of the East Bay, and San Andreas
Regional Center to provide for, secure, and assure the payment of a
lease or leases on housing, developed pursuant to this section, based
on the level of occupancy in each home, if all of the following
conditions are met:
(1) The acquired or developed real property is occupied by
individuals eligible for regional center services and is integrated
with housing for people without disabilities.
(2) The regional center has approved the proposed ownership
entity, management entity, and developer or development entity for
each project, and, prior to granting the approval, has consulted with
the department and has provided to the department a proposal that
includes the credentials of the proposed entities.
(3) The costs associated with the proposal are reasonable.
(4) The proposal includes a plan for a transfer at a time certain
of the real property's ownership to a nonprofit entity to be approved
by the regional center.
(b) Prior to approving a regional center proposal pursuant to
subdivision (a), the department, in consultation with the California
Housing Finance Agency and the Department of Housing and Community
Development, shall review all of the following:
(1) The terms and conditions of the financing structure for
acquisition, development, or both, of the real property.
(2) Any and all agreements that govern the real property's
ownership, occupancy, maintenance, management, and operation, to
ensure that the use of the property is maintained for the benefit of
persons with developmental disabilities.
(c) No sale, encumbrance, hypothecation, assignment, refinancing,
pledge, conveyance, exchange, or transfer in any other form of the
real property, or of any of its interest therein, shall occur without
the prior written approval of the department and the California
Health and Human Services Agency.
(d) Notice of the restrictions pursuant to this section shall be
recorded against the acquired or developed real property subject to
this section.
(e) At least 45 days prior to granting approval under subdivision
(c), the department shall provide notice to the chairs and vice
chairs of the fiscal committees of the Assembly and the Senate, the
Secretary of California Health and Human Services, and the Director
of Finance.
(f) The regional center shall not be eligible to acquire or
develop real property for the purpose of residential housing.
SEC. 221. Section 7200.06 of the Welfare and Institutions Code is
amended to read:
7200.06.
(a) Of the 1,362 licensed beds at Napa State Hospital, at least 20
percent of these beds shall be available in any given fiscal year
for use by counties for contracted services. Of the remaining beds,
in no case shall the population of patients whose placement has been
required pursuant to the Penal Code exceed 980.
(b) After construction of the perimeter security fence is
completed at Napa State Hospital, no patient whose placement has been
required pursuant to the Penal Code shall be placed outside the
perimeter security fences, with the exception of placements in the
general acute care and skilled nursing units. The State Department of
Mental Health shall ensure that appropriate security measures are in
place for the general acute care and skilled nursing units.
(c) Any alteration to the security perimeter structure or policies
shall be made in conjunction with representatives of the City of
Napa, the County of Napa, and local law enforcement agencies.
SEC. 222. Section 11404 of the Welfare and Institutions Code is
amended to read:
11404.
(a) Except as provided in Section 11405, a child is not eligible
for AFDC-FC unless responsibility for placement and care of the child
is with the county welfare department or Indian tribe that entered
into an agreement pursuant to Section 10553.1, the county probation
department which has an agreement with the county welfare department,
or a licensed public adoption agency, licensed private adoption
agency, or the department.
(b) In order for the child to be eligible for AFDC-FC, the agency
with responsibility for the child's placement and care shall, in
accordance with departmental regulations do all of the following:
(1) For children removed after October 1, 1983, document that it
provided preplacement preventive services to the child prior to the
child's placement in foster care, and document why provisions of
these services were not successful in maintaining the child in his or
her home, unless it is documented that these services were not
provided due to either of the following:
(A) The voluntary relinquishment of the child by one or both
parents or court action declaring a child free from the custody and
control of one or both parents.
(B) The child's residence with a nonrelated legal guardian.
(2) Develop a written assessment of the reasons necessitating the
child's placement in foster care and the treatment needs of the child
while in foster care to be updated by the agency no less frequently
than once every six months. Where the child is a parent who has a
child living with him or her in the same eligible facility, the
assessment shall also address the needs of his or her child.
(3) Develop a case plan for the child within a maximum of 60 days
of placement.
(4) Ensure that services are provided to return the child to his
or her own home or establish an alternative permanent placement for
the child if returning home is not possible or is inappropriate.
SEC. 223. Section 11462 of the Welfare and Institutions Code is
amended to read:
11462.
(a) (1) Effective July 1, 1990, foster care providers licensed as
group homes, as defined in departmental regulations, including public
child care institutions, as defined in Section 11402.5, shall have
rates established by classifying each group home program and applying
the standardized schedule of rates. The department shall collect
information from group providers beginning January 1, 1990, in order
to classify each group home program.
(2) Notwithstanding paragraph (1), foster care providers licensed
as group homes shall have rates established only if the group home is
organized and operated on a nonprofit basis as required under
subdivision (h) of Section 11400. The department shall terminate the
rate effective January 1, 1993, of any group home not organized and
operated on a nonprofit basis as required under subdivision (h) of
Section 11400.
(3) (A) The department shall determine, consistent with the
requirements of this chapter and other relevant requirements under
law, the rate classification level (RCL) for each group home program
on a biennial basis. Submission of the biennial rate application
shall be made according to a schedule determined by the department.
(B) The department shall adopt regulations to implement this
paragraph. The adoption, amendment, repeal, or readoption of a
regulation authorized by this paragraph is
deemed to be necessary for the immediate preservation
of the public peace, health and safety, or general welfare, for
purposes of Sections 11346.1 and 11349.6 of the Government Code, and
the department is hereby exempted from the requirement to describe
specific facts showing the need for immediate action.
(b) A group home program shall be initially classified, for
purposes of emergency regulations, according to the level of care and
services to be provided using a point system developed by the
department and described in the report, "The Classification of Group
Home Programs under the Standardized Schedule of Rates System,"
prepared by the State Department of Social Services, August 30, 1989.
(c) The rate for each RCL has been determined by the department
with data from the AFDC-FC Group Home Rate Classification Pilot
Study. The rates effective July 1, 1990, were developed using 1985
calendar year costs and reflect adjustments to the costs for each
fiscal year, starting with the 1986-87 fiscal year, by the amount of
the California Necessities Index computed pursuant to the methodology
described in Section 11453. The data obtained by the department
using 1985 calendar year costs shall be updated and revised by
January 1, 1993.
(d) As used in this section, "standardized schedule of rates"
means a listing of the 14 rate classification levels, and the single
rate established for each RCL.
(e) Except as specified in paragraph (1), the department shall
determine the RCL for each group home program on a prospective basis,
according to the level of care and services that the group home
operator projects will be provided during the period of time for
which the rate is being established.
(1) (A) For new and existing providers requesting the
establishment of an RCL, and for existing group home programs
requesting an RCL increase, the department shall determine the RCL no
later than 13 months after the effective date of the provisional
rate. The determination of the RCL shall be based on a program audit
of documentation and other information that verifies the level of
care and supervision provided by the group home program during a
period of the two full calendar months or 60 consecutive days,
whichever is longer, preceding the date of the program audit, unless
the group home program requests a lower RCL. The program audit shall
not cover the first six months of operation under the provisional
rate. Pending the department's issuance of the program audit report
that determines the RCL for the group home program, the group home
program shall be eligible to receive a provisional rate that shall be
based on the level of care and service that the group home program
proposes it will provide. The group home program shall be eligible to
receive only the RCL determined by the department during the
pendency of any appeal of the department's RCL determination.
(B) A group home program may apply for an increase in its RCL no
earlier than two years from the date the department has determined
the group home program's rate, unless the host county, the primary
placing county, or a regional consortium of counties submits to the
department in writing that the program is needed in that county, that
the provider is capable of effectively and efficiently operating the
proposed program, and that the provider is willing and able to
accept AFDC-FC children for placement who are determined by the
placing agency to need the level of care and services that will be
provided by the program.
(C) To ensure efficient administration of the department's audit
responsibilities, and to avoid the fraudulent creation of records,
group home programs shall make records that are relevant to the RCL
determination available to the department in a timely manner. Except
as provided in this section, the department may refuse to consider,
for purposes of determining the rate, any documents that are relevant
to the determination of the RCL that are not made available by the
group home provider by the date the group home provider requests a
hearing on the department's RCL determination. The department may
refuse to consider, for purposes of determining the rate, the
following records, unless the group home provider makes the records
available to the department during the fieldwork portion of the
department's program audit:
(i) Records of each employee's full name, home address,
occupation, and social security number.
(ii) Time records showing when the employee begins and ends each
work period, meal periods, split shift intervals, and total daily
hours worked.
(iii) Total wages paid each payroll period.
(iv) Records required to be maintained by licensed group home
providers under Title 22 of the California Code of Regulations that
are relevant to the RCL determination.
(D) To minimize financial abuse in the startup of group home
programs, when the department's RCL determination is more than three
levels lower than the RCL level proposed by the group home provider,
and the group home provider does not appeal the department's RCL
determination, the department shall terminate the rate of a group
home program 45 days after issuance of its program audit report. When
the group home provider requests a hearing on the department's RCL
determination, and the RCL determined by the director under
subparagraph (E) is more than three levels lower than the RCL level
proposed by the group home provider, the department shall terminate
the rate of a group home program within 30 days of issuance of the
director's decision. Notwithstanding the reapplication provisions in
subparagraph (B), the department shall deny any request for a new or
increased RCL from a group home provider whose RCL is terminated
pursuant to this subparagraph, for a period of no greater than two
years from the effective date of the RCL termination.
(E) A group home provider may request a hearing of the department'
s RCL determination under subparagraph (A) no later than 30 days
after the date the department issues its RCL determination. The
department's RCL determination shall be final if the group home
provider does not request a hearing within the prescribed time.
Within 60 days of receipt of the request for hearing, the department
shall conduct a hearing on the RCL determination. The standard of
proof shall be the preponderance of the evidence and the burden of
proof shall be on the department. The hearing officer shall issue the
proposed decision within 45 days of the close of the evidentiary
record. The director shall adopt, reject, or modify the proposed
decision, or refer the matter back to the hearing officer for
additional evidence or findings, within 100 days of issuance of the
proposed decision. If the director takes no action on the proposed
decision within the prescribed time, the proposed decision shall take
effect by operation of law.
(2) Group home programs that fail to maintain at least the level
of care and services associated with the RCL upon which their rate
was established shall inform the department. The department shall
develop regulations specifying procedures to be applied when a group
home fails to maintain the level of services projected, including,
but not limited to, rate reduction and recovery of overpayments.
(3) The department shall not reduce the rate, establish an
overpayment, or take other actions pursuant to paragraph (2) for any
period that a group home program maintains the level of care and
services associated with the RCL for children actually residing in
the facility. Determinations of levels of care and services shall be
made in the same way as modifications of overpayments are made
pursuant to paragraph (2) of subdivision (b) of Section 11466.2.
(4) A group home program that substantially changes its staffing
pattern from that reported in the group home program statement shall
provide notification of this change to all counties that have placed
children currently in care. This notification shall be provided
whether or not the RCL for the program may change as a result of the
change in staffing pattern.
(f) (1) The standardized schedule of rates for the 2002-03,
2003-04, and 2004-05 fiscal years is:
FY 2002-03, 2003-
Rate Point Ranges 04,
Classification and 2004-05
Level Standard Rate
1 Under 60 $1,454
2 60- 89 1,835
3 90-119 2,210
4 120-149 2,589
5 150-179 2,966
6 180-209 3,344
7 210-239 3,723
8 240-269 4,102
9 270-299 4,479
10 300-329 4,858
11 330-359 5,234
12 360-389 5,613
13 390-419 5,994
14 420 & Up 6,371
(2) (A) For group home programs that receive AFDC-FC payments for
services performed during the 2002-03, 2003-04, and 2004-05 fiscal
years, the adjusted RCL point ranges below shall be used for
establishing the biennial rates for existing programs, pursuant to
paragraph (3) of subdivision (a) and in performing program audits and
in determining any resulting rate reduction, overpayment assessment,
or other actions pursuant to paragraph (2) of subdivision (e):
Adjusted Point
Rate Ranges
for the 2002-03,
Classification 2003-04,
and 2004-05 Fiscal
Level Years
1 Under 54
2 54- 81
3 82-110
4 111-138
5 139-167
6 168-195
7 196-224
8 225-253
9 254-281
10 282-310
11 311-338
12 339-367
13 368-395
14 396 & Up
(B) Notwithstanding subparagraph (A), foster care providers
operating group homes during the 2002-03, 2003-04, and 2004-05 fiscal
years shall remain responsible for ensuring the health and safety of
the children placed in their programs in accordance with existing
applicable provisions of the Health and Safety Code and community
care licensing regulations, as contained in Title 22 of the Code of
California Regulations.
(C) Subparagraph (A) shall not apply to program audits of group
home programs with provisional rates established pursuant to
paragraph (1) of subdivision (e). For those program audits, the RCL
point ranges in paragraph (1) shall be used.
(g) (1) (A) For the 1999-2000 fiscal year, the standardized rate
for each RCL shall be adjusted by an amount equal to the California
Necessities Index computed pursuant to the methodology described in
Section 11453. The resultant amounts shall constitute the new
standardized schedule of rates, subject to further adjustment
pursuant to subparagraph (B).
(B) In addition to the adjustment in subparagraph (A), commencing
January 1, 2000, the standardized rate for each RCL shall be
increased by 2.36 percent, rounded to the nearest dollar. The
resultant amounts shall constitute the new standardized schedule of
rates.
(2) Beginning with the 2000-01 fiscal year, the standardized
schedule of rates shall be adjusted annually by an amount equal to
the CNI computed pursuant to Section 11453, subject to the
availability of funds. The resultant amounts shall constitute the new
standardized schedule of rates.
(3) Effective January 1, 2001, the amount included in the standard
rate for each Rate Classification Level (RCL) for the salaries,
wages, and benefits for staff providing child care and supervision or
performing social work activities, or both, shall be increased by 10
percent. This additional funding shall be used by group home
programs solely to supplement staffing, salaries, wages, and benefit
levels of staff specified in this paragraph. The standard rate for
each RCL shall be recomputed using this adjusted amount and the
resultant rates shall constitute the new standardized schedule of
rates. The department may require a group home receiving this
additional funding to certify that the funding was utilized in
accordance with the provisions of this section.
(h) The standardized schedule of rates pursuant to subdivisions
(f) and (g) shall be implemented as follows:
(1) Any group home program that received an AFDC-FC rate in the
prior fiscal year at or above the standard rate for the RCL in the
current fiscal year shall continue to receive that rate.
(2) Any group home program that received an AFDC-FC rate in the
prior fiscal year below the standard rate for the RCL in the current
fiscal year shall receive the RCL rate for the current year.
(i) (1) The department shall not establish a rate for a new
program of a new or existing provider, or for an existing program at
a new location of an existing provider, unless the provider submits a
letter of recommendation from the host county, the primary placing
county, or a regional consortium of counties that includes all of the
following:
(A) That the program is needed by that county.
(B) That the provider is capable of effectively and efficiently
operating the program.
(C) That the provider is willing and able to accept AFDC-FC
children for placement who are determined by the placing agency to
need the level of care and services that will be provided by the
program.
(D) That, if the letter of recommendation is not being issued by
the host county, the primary placing county has notified the host
county of its intention to issue the letter and the host county was
given 30 days to respond to this notification and to discuss options
with the primary placing county.
(2) The department shall encourage the establishment of consortia
of county placing agencies on a regional basis for the purpose of
making decisions and recommendations about the need for, and use of,
group home programs and other foster care providers within the
regions.
(3) The department shall annually conduct a county-by-county
survey to determine the unmet placement needs of children placed
pursuant to Section 300 and Section 601 or 602, and shall publish its
findings by November 1 of each year.
(j) The department shall develop regulations specifying
ratesetting procedures for program expansions, reductions, or
modifications, including increases or decreases in licensed capacity,
or increases or decreases in level of care or services.
(k) (1) For the purpose of this subdivision, "program change"
means any alteration to an existing group home program planned by a
provider that will increase the RCL or AFDC-FC rate. An increase in
the licensed capacity or other alteration to an existing group home
program that does not increase the RCL or AFDC-FC rate shall not
constitute a program change.
(2) For the 1998-99, 1999-2000, and 2000-01 fiscal years, the rate
for a group home program shall not increase, as the result of a
program change, from the rate established for the program effective
July 1, 2000, and as adjusted pursuant to subparagraph (B) of
paragraph (1) of subdivision (g), except as provided in paragraph
(3).
(3) (A) For the 1998-99, 1999-2000, and 2000-01 fiscal years, the
department shall not establish a rate for a new program of a new or
existing provider or approve a program change for an existing
provider that either increases the program's RCL or AFDC-FC rate, or
increases the licensed capacity of the program as a result of
decreases in another program with a lower RCL or lower AFDC-FC rate
that is operated by that provider, unless both of the following
conditions are met:
(i) The licensee obtains a letter of recommendation from the host
county, primary placing county, or regional consortium of counties
regarding the proposed program change or new program.
(ii) The county determines that there is no increased cost to the
General Fund.
(B) Notwithstanding subparagraph (A), the department may grant a
request for a new program or program change, not to exceed 25 beds,
statewide, if both of the following conditions are met:
(i) The licensee obtains a letter of recommendation from the host
county, primary placing county, or regional consortium of counties
regarding the proposed program change or new program.
(ii) The department determines that the new program or program
change will result in a reduction of referrals to state hospitals
during the 1998-99 fiscal year.
(l) General unrestricted or undesignated private charitable
donations and contributions made to charitable or nonprofit
organizations shall not be deducted from the cost of providing
services pursuant to this section. The donations and contributions
shall not be considered in any determination of maximum expenditures
made by the department.
(m) The department shall, by October 1 of each year, commencing
October 1, 1992, provide the Joint Legislative Budget Committee with
a list of any new departmental requirements established during the
previous fiscal year concerning the operation of group homes, and of
any unusual, industrywide increase in costs associated with the
provision of group home care that may have significant fiscal impact
on providers of group home care. The committee may, in the 1993-94
fiscal year and beyond, use the list to determine whether an
appropriation for rate adjustments is needed in the subsequent fiscal
year.
SEC. 224. Section 14016.5 of the Welfare and Institutions Code is
amended to read:
14016.5.
(a) At the time of determining or redetermining the eligibility of
a Medi-Cal program or Aid to Families with Dependent Children (AFDC)
program applicant or beneficiary who resides in an area served by a
managed health care plan or pilot program in which beneficiaries may
enroll, each applicant or beneficiary shall personally attend a
presentation at which the applicant or beneficiary is informed of the
managed care and fee-for-service options available regarding methods
of receiving Medi-Cal benefits. The county shall ensure that each
beneficiary or applicant attends this presentation.
(b) The health care options presentation described in subdivision
(a) shall include all of the following elements:
(1) Each beneficiary or eligible applicant shall be informed that
he or she may choose to continue an established patient-provider
relationship in the fee-for-service sector.
(2) Each beneficiary or eligible applicant shall be provided with
the name, address, telephone number, and specialty, if any, of each
primary care provider, and each clinic participating in each prepaid
managed health care plan, pilot project, or fee-for-service case
management provider option. This information shall be provided under
geographic area designations, in alphabetical order by the name of
the primary care provider and clinic. The name, address, and
telephone number of each specialist participating in each prepaid
managed health care plan, pilot project, or fee-for-service case
management provider option shall be made available by contacting
either the health care options contractor or the prepaid managed
health care plan, pilot project, or fee-for-service case management
provider.
(3) Each beneficiary or eligible applicant shall be informed that
he or she may choose to continue an established patient-provider
relationship in a managed care option, if his or her treating
provider is a primary care provider or clinic contracting with any of
the prepaid managed health care plans, pilot projects, or
fee-for-service case management provider options available, has
available capacity, and agrees to continue to treat that beneficiary
or applicant.
(4) In areas specified by the director, each beneficiary or
eligible applicant shall be informed that if he or she fails to make
a choice, or does not certify that he or she has an established
relationship with a primary care provider or clinic, he or she shall
be assigned to, and enrolled in, a prepaid managed health care plan,
pilot project, or fee-for-service case management provider.
(c) No later than 30 days following the date a Medi-Cal or AFDC
beneficiary or applicant is determined eligible, the beneficiary or
applicant shall indicate his or her choice in writing, as a condition
of coverage for Medi-Cal benefits, of either of the following health
care options:
(1) To obtain benefits by receiving a Medi-Cal card, which may be
used to obtain services from individual providers, that the
beneficiary would locate, who choose to provide services to Medi-Cal
beneficiaries.
The department may require each beneficiary or eligible applicant,
as a condition for electing this option, to sign a statement
certifying that he or she has an established patient-provider
relationship, or in the case of a dependent, the parent or guardian
shall make that certification. This certification shall not require
the acknowledgment or guarantee of acceptance, by any indicated
Medi-Cal provider or health facility, of any beneficiary making a
certification under this section.
(2) (A) To obtain benefits by enrolling in a prepaid managed
health care plan, pilot program, or fee-for-service case management
provider that has agreed to make Medi-Cal services readily available
to enrolled Medi-Cal beneficiaries.
(B) At the time the beneficiary or eligible applicant selects a
prepaid managed health care plan, pilot project, or fee-for-service
case management provider, the department shall, when applicable,
encourage the beneficiary or eligible applicant to also indicate, in
writing, his or her choice of primary care provider or clinic
contracting with the selected prepaid managed health care plan, pilot
project, or fee-for-service case management provider.
(d) (1) In areas specified by the director, a Medi-Cal or AFDC
beneficiary or eligible applicant who does not make a choice, or who
does not certify that he or she has an established relationship with
a primary care provider or clinic, shall be assigned to and enrolled
in an appropriate Medi-Cal managed care plan, pilot project, or
fee-for-service case management provider providing service within the
area in which the beneficiary resides.
(2) If it is not possible to enroll the beneficiary under a
Medi-Cal managed care plan, pilot project, or a fee-for-service case
management provider because of a lack of capacity or availability of
participating contractors, the beneficiary shall be provided with a
Medi-Cal card and informed about fee-for-service primary care
providers who do all of the following:
(A) The providers agree to accept Medi-Cal patients.
(B) The providers provide information about the provider's
willingness to accept Medi-Cal patients as described in Section
14016.6.
(C) The providers provide services within the area in which the
beneficiary resides.
(e) If a beneficiary or eligible applicant does not choose a
primary care provider or clinic, or does not select any primary care
provider who is available, the managed health care plan, pilot
project, or fee-for-service case management provider that was
selected by or assigned to the beneficiary shall ensure that the
beneficiary selects a primary care provider or clinic within 30 days
after enrollment or is assigned to a primary care provider within 40
days after enrollment.
(f) (1) The managed care plan shall have a valid Medi-Cal
contract, adequate capacity, and appropriate staffing to provide
health care services to the beneficiary.
(2) The department shall establish standards for all of the
following:
(A) The maximum distances a beneficiary is required to travel to
obtain primary care services from the managed care plan,
fee-for-service case management provider, or pilot project in which
the beneficiary is enrolled.
(B) The conditions under which a primary care service site shall
be accessible by public transportation.
(C) The conditions under which a managed care plan,
fee-for-service case management provider, or pilot project shall
provide nonmedical transportation to a primary care service site.
(3) In developing the standards required by paragraph (2), the
department shall take into account, on a geographic basis, the means
of transportation used and distances typically traveled by Medi-Cal
beneficiaries to obtain fee-for-service primary care services and the
experience of managed care plans in delivering services to Medi-Cal
enrollees. The department shall also consider the provider's ability
to render culturally and linguistically appropriate services.
(g) To the extent possible, the arrangements for carrying out
subdivision (d) shall provide for the equitable distribution of
Medi-Cal beneficiaries among participating managed care plans,
fee-for-service case management providers, and pilot projects.
(h) If, under the provisions of subdivision (d), a Medi-Cal
beneficiary or applicant does not make a choice or does not certify
that he or she has an established relationship with a primary care
provider or clinic, the person may, at the option of the department,
be provided with a Medi-Cal card or be assigned to and enrolled in a
managed care plan providing service within the area in which the
beneficiary resides.
(i) Any Medi-Cal or AFDC beneficiary who is dissatisfied with the
provider or managed care plan, pilot project, or fee-for-service case
management provider shall be allowed to select or be assigned to
another provider or managed care plan, pilot project, or
fee-for-service case management provider.
(j) The department or its contractor shall notify a managed care
plan, pilot project, or fee-for-service case management provider when
it has been selected by or assigned to a beneficiary. The managed
care plan, pilot project, or fee-for-service case management provider
that has been selected by, or assigned to, a beneficiary, shall
notify the primary care provider or clinic that it has been selected
or assigned. The managed care plan, pilot project, or fee-for-service
case management provider shall also notify the beneficiary of the
managed care plan, pilot project, or fee-for-service case management
provider or clinic selected or assigned.
(k) (1) The department shall ensure that Medi-Cal beneficiaries
eligible under Title XVI of the Social Security Act are provided with
information about options available regarding methods of receiving
Medi-Cal benefits as
described in subdivision (c).
(2) (A) The director may waive the requirements of subdivisions
(c) and (d) until a means is established to directly provide the
presentation described in subdivision (a) to beneficiaries who are
eligible for the federal Supplemental Security Income for the Aged,
Blind, and Disabled Program (Subchapter 16 (commencing with Section
1381) of Chapter 7 of Title 42 of the United States Code).
(B) The director may elect not to apply the requirements of
subdivisions (c) and (d) to beneficiaries whose eligibility under the
Supplemental Security Income program is established before January
1, 1994.
(l) In areas where there is no prepaid managed health care plan or
pilot program that has contracted with the department to provide
services to Medi-Cal beneficiaries, and where no other enrollment
requirements have been established by the department, no explicit
choice need be made, and the beneficiary or eligible applicant shall
receive a Medi-Cal card.
(m) The following definitions contained in this subdivision shall
control the construction of this section, unless the context requires
otherwise:
(1) "Applicant," "beneficiary," and "eligible applicant," in the
case of a family group, mean any person with legal authority to make
a choice on behalf of dependent family members.
(2) "Fee-for-service case management provider" means a provider
enrolled and certified to participate in the Medi-Cal fee-for-service
case management program the department may elect to develop in
selected areas of the state with the assistance of and in cooperation
with California physician providers and other interested provider
groups.
(3) "Managed health care plan" and "managed care plan" mean a
person or entity operating under a Medi-Cal contract with the
department under this chapter or Chapter 8 (commencing with Section
14200) to provide, or arrange for, health care services for Medi-Cal
beneficiaries as an alternative to the Medi-Cal fee-for-service
program that has a contractual responsibility to manage health care
provided to Medi-Cal beneficiaries covered by the contract.
(n) (1) Whenever a county welfare department notifies a public
assistance recipient or Medi-Cal beneficiary that the recipient or
beneficiary is losing Medi-Cal eligibility, the county shall include,
in the notice to the recipient or beneficiary, notification that the
loss of eligibility shall also result in the recipient's or
beneficiary's disenrollment from Medi-Cal managed health care or
dental plans, if enrolled.
(2) (A) Whenever the department or the county welfare department
processes a change in a public assistance recipient's or Medi-Cal
beneficiary's residence or aid code that will result in the recipient'
s or beneficiary's disenrollment from the managed health care or
dental plan in which he or she is currently enrolled, a written
notice shall be given to the recipient or beneficiary.
(B) This paragraph shall become operative and the department shall
commence sending the notices required under this paragraph on or
before the expiration of 12 months after the effective date of this
section.
(o) This section shall be implemented in a manner consistent with
any federal waiver required to be obtained by the department in order
to implement this section.
SEC. 225. Section 14016.51 of the Welfare and Institutions Code is
amended to read:
14016.51.
Upon the availability of federal funding, the department shall
modify the Medi-Cal program mail-in application form, and other
appropriate materials, and the single point-of-entry application
form, to allow applicants in counties served by managed care plans to
contact the enrollment contractor by using the Health Care Options
toll-free telephone number to request and receive enrollment
materials before a Medi-Cal eligibility determination has been made.
SEC. 226. Section 14087.6 of the Welfare and Institutions Code is
amended to read:
14087.6.
A county that has contracted for the provision of services
pursuant to this article may provide the services directly to
recipients, or arrange for any or all of the services to be provided
by subcontracting with primary care providers, health maintenance
organizations, insurance carriers, or other entities or individuals.
The subcontracts may utilize a prospectively negotiated reimbursement
rate, fee-for-service, retainer, capitation, or other basis for
payment. The rate of payment established under the contract shall not
exceed the total per capita amount that the department estimates
would be payable for all services and requirements covered under the
contract if all these services and requirements were to be furnished
to Medi-Cal beneficiaries under the Medi-Cal fee-for-service program.
Counties that are responsible for providing health care under this
chapter shall make efforts to utilize existing health service
resources if these resources can be estimated by the county to result
in lower total long-term costs and accessible quality care to
persons served under this chapter. The granting of a certificate of
need pursuant to the criteria set forth in Section 127200 of the
Health and Safety Code or a certificate of exemption pursuant to the
criteria set forth in Section 127175 of the Health and Safety Code
shall satisfy the intent of this provision.
SEC. 227. Section 14123.25 of the Welfare and Institutions Code is
amended to read:
14123.25.
(a) In lieu of, or in addition to, the imposition of any other
sanction available to it, including the sanctions and penalties
authorized under Section 14123.2 or 14171.6, and as the "single state
agency" for California vested with authority to administer the
Medi-Cal program, the department shall exercise the authority granted
to it in Section 1002.2 of Title 42 of the Code of Federal
Regulations, and may also impose the mandatory and permissive
exclusions identified in Section 1128 of the federal Social Security
Act (42 U.S.C. Sec. 1320a-7), and its implementing regulations, and
impose civil penalties identified in Section 1128A of the federal
Social Security Act (42 U.S.C. Sec. 1320a-7a), and its implementing
regulations, against applicants and providers, as defined in Section
14043.1, or against billing agents, as defined in Section 14040.1.
The department may also terminate, or refuse to enter into, a
provider agreement authorized under Section 14043.2 with an applicant
or provider, as defined in Section 14043.1, upon the grounds
specified in Section 1866(b)(2) of the federal Social Security Act
(42 U.S.C. Sec. 1395cc(b)(2)). Notwithstanding Section 100171 of the
Health and Safety Code or any other provision of law, any appeal by
an applicant, provider, or billing agent of the imposition of a civil
penalty, exclusion, or other sanction pursuant to this subdivision
shall be in accordance with Section 14043.65, except that where the
action is based upon a conviction for any crime involving fraud or
abuse of the Medi-Cal, Medicaid, or Medicare programs, or an
exclusion by the federal government from the Medicaid or Medicare
programs, the action shall be automatic and not subject to appeal or
hearing.
(b) In addition, the department may impose the intermediate
sanctions identified in Section 1846 of the Social Security Act (42
U.S.C. Sec. 1395w-2), and its implementing regulations, against any
provider that is a clinical laboratory, as defined in Section 1206 of
the Business and Professions Code. The imposition and appeal of this
intermediate sanction shall be in accordance with Article 8
(commencing with Section 1065) of Chapter 2 of Division 1 of Title 17
of the California Code of Regulations.
(c) (1) In addition, the department may issue a written warning
notice of improper billing or improper cost report computation, which
shall specifically identify the statute, regulation, or rule that is
being violated, to a provider via certified mail, return receipt
requested, whenever a review of the provider's paid claims or a
provider's cost report demonstrates a pattern of improper billing or
improper cost report computation. The review shall not take into
account claims that were denied or payment reductions. The warning
notice shall be in a format that specifically apprises the provider
of the item or service improperly billed and, if applicable, the
deficiencies in the manner in which provider costs were computed. The
warning notice may be issued with annual cost report audit findings,
or in addition to any audit or any other action that the department
is authorized to take. The failure of the department to exercise its
discretion to issue the warning notice shall not limit its authority
to audit or take any action authorized by law. The warning notice
shall provide the provider with the opportunity to contest the
warning notice and explain to the department the correctness of the
provider's bill or cost report computation. If the department accepts
the provider's explanation, in whole or in part, no further action
related to the notice or part of the notice that the department
accepts as correct shall be taken pursuant to this section.
(2) Civil money penalties may be imposed in the following
circumstances:
(A) If a provider presents or causes to be presented claims for
payment by the Medi-Cal program that are:
(i) Billed improperly, and are for a service or item about which
the provider has received two or more warning notices of improper
billing, the provider may, in addition to any other penalties that
may be prescribed by law, be subject to a civil money penalty of one
hundred dollars ($100) per claim, or up to two times the amount
improperly claimed for each item or service, whichever is greater.
(ii) For a service or item for which the department solicits
provider costs for use in calculating Medi-Cal reimbursement or in
calculating and assigning Medi-Cal reimbursement rates, the cost
reports relevant to the claims are improperly calculated, and the
provider has received two or more warning notices of improper cost
report computation regarding substantially similar errors, the
provider may, in addition to any other penalties that may be
prescribed by law, be subject to a civil money penalty of one hundred
dollars ($100) per adjustment by the department to the costs
submitted by the provider, or up to two times the amount improperly
claimed for each item or service, whichever is greater.
(B) If a provider presents or causes to be presented claims for
payment by the Medi-Cal program that are:
(i) Billed improperly, and are for a service or item about which
the provider has received three or more warning notices of improper
billing, or has been assessed a penalty under subparagraph (A), the
provider may, in addition to any other penalties that may be
prescribed by law, be subject to a civil money penalty of one
thousand dollars ($1,000) per claim, or up to three times the amount
improperly claimed for each item or service, whichever is greater.
(ii) For a service or item for which the department solicits
provider costs for use in calculating Medi-Cal reimbursement or in
calculating and assigning Medi-Cal reimbursement rates, and the cost
reports relevant to the claims are improperly calculated, and the
provider has received three or more warning notices of improper cost
report computation regarding substantially similar errors, or has
been assessed a penalty under subparagraph (A), the provider may, in
addition to any other penalties that may be prescribed by law, be
subject to a civil money penalty of one thousand dollars ($1,000) per
adjustment by the department to the costs submitted by the provider,
or three times the amount claimed for each item or service,
whichever is greater.
(3) Any provider subjected to civil money penalties under
paragraph (2) may appeal the decision to assess penalties pursuant to
Section 100171 of the Health and Safety Code.
SEC. 228. Section 16206 of the Welfare and Institutions Code is
amended to read:
16206.
(a) The purpose of the program is to develop and implement
statewide coordinated training programs designed specifically to meet
the needs of county child protective services social workers
assigned emergency response, family maintenance, family
reunification, permanent placement, and adoption responsibilities. It
is the intent of the Legislature that the program include training
for other agencies under contract with county welfare departments to
provide child welfare services. In addition, the program shall
provide training programs for persons defined as a mandated reporter
pursuant to the Child Abuse and Neglect Reporting Act, Article 2.5
(commencing with Section 11164) of Chapter 2 of Title 1 of Part 4 of
the Penal Code. The program shall provide the services required in
this section to the extent possible within the total allocation. If
allocations are insufficient, the department, in consultation with
the grantee or grantees and the Child Welfare Training Advisory
Board, shall prioritize the efforts of the program, giving primary
attention to the most urgently needed services. County child
protective services social workers assigned emergency response
responsibilities shall receive first priority for training pursuant
to this section.
(b) The training program shall provide practice-relevant training
for mandated child abuse reporters and all members of the child
welfare delivery system that will address critical issues affecting
the well-being of children, and shall develop curriculum materials
and training resources for use in meeting staff development needs of
mandated child abuse reporters and child welfare personnel in public
and private agency settings.
(c) The training provided pursuant to this section shall include
all of the following:
(1) Crisis intervention.
(2) Investigative techniques.
(3) Rules of evidence.
(4) Indicators of abuse and neglect.
(5) Assessment criteria, including the application of guidelines
for assessment of relatives for placement according to the criteria
described in Section 361.3.
(6) Intervention strategies.
(7) Legal requirements of child protection, including requirements
of child abuse reporting laws.
(8) Case management.
(9) Use of community resources.
(10) Information regarding the dynamics and effects of domestic
violence upon families and children, including indicators and
dynamics of teen dating violence.
(11) Posttraumatic stress disorder and the causes, symptoms, and
treatment of posttraumatic stress disorder in children.
(12) The importance of maintaining relationships with individuals
who are important to a child in out-of-home placement, including
methods to identify those individuals, consistent with the child's
best interests, including, but not limited to, asking the child about
individuals who are important, and ways to maintain and support
those relationships.
(13) The legal duties of a child protective services social
worker, in order to protect the legal rights and safety of children
and families from the initial time of contact during investigation
through treatment.
(d) The training provided pursuant to this section may also
include any or all of the following:
(1) Child development and parenting.
(2) Intake, interviewing, and initial assessment.
(3) Casework and treatment.
(4) Medical aspects of child abuse and neglect.
(e) The training program shall assess the program's performance at
least annually and forward it to the State Department of Social
Services for an evaluation and report to the Legislative Analyst. The
first report shall be forwarded to the Legislative Analyst no later
than January 1, 1990, and on the first of January in any subsequent
year. The assessment shall include at minimum the following:
(1) The number of persons trained.
(2) The type of training provided.
(3) The degree to which the training is perceived by participants
as useful in practice.
(f) The training program shall provide practice-relevant training
to county child protective services social workers who screen
referrals for child abuse or neglect and for all workers assigned to
provide emergency response, family maintenance, family reunification,
and permanent placement services. The training shall be developed in
consultation with the Child Welfare Training Advisory Board and
domestic violence victims' advocates and other public and private
agencies that provide programs for victims of domestic violence or
programs of intervention for perpetrators.
SEC. 229. Section 15 of Chapter 656 of the Statutes of 2003 is
amended to read:
Sec. 15.
(a) Unless otherwise provided, this act shall apply with respect
to any penalty assessed on or after January 1, 2004, on any return
for which the statute of limitations on assessment has not expired.
All other provisions of this act shall apply on and after January 1,
2004.
(b) Except as provided in subdivision (c), Sections 18407, 19772,
and 19773 of the Revenue and Taxation Code, as amended or added by
this act, apply to taxable years beginning on or after January 1,
2003.
(c) (1) The penalty provisions of Section 19772 apply to any
person that satisfies both of the following:
(A) The person is subject to the provisions of Sections 18407 and
19772.
(B) The person has invested in a transaction after February 28,
2000, and before January 1, 2004, where that transaction becomes a
listed transaction at any time.
(2) (A) A person that is subject to the provisions of Section 6111
of the Internal Revenue Code, as incorporated and modified by
Section 18648, must register a tax shelter with the Franchise Tax
Board before April 30, 2004, if that tax shelter was offered for sale
between February 28, 2000, and January 1, 2004, and becomes a listed
transaction on or before January 1, 2004.
(B) The penalty under Section 19173 applies for a failure to
register the tax shelter under subparagraph (A).
(3) (A) Subdivision (c) of Section 18648 does not apply to
licensed attorneys in the case of a transaction that was entered into
before January 1, 2004, if the attorney is considered a material
adviser solely due to the practice of law.
(B) The provisions of subparagraph (A) shall only apply to an
attorney offering advice in an attorney-client relationship where:
(i) Legal advice of any kind is sought from a professional legal
adviser in his or her capacity as a professional legal adviser.
(ii) The communications are made in confidence and relate to that
purpose.
(iii) The communications are made or received by the client.
(4) For purposes of applying Section 19778 of the Revenue and
Taxation Code, Section 18407 of the Revenue and Taxation Code, as
added by Section 1 of Chapter 656 of the Statutes of 2003, applies
for taxable years beginning after December 31, 1998.
SEC. 230. Section 4 of the Lake County Flood Control and Water
Conservation District (Chapter 1544 of the Statutes of 1951) is
amended to read:
Sec. 4.
(a) The objects and purposes of this act are to provide for the
control, impounding, treatment, and disposal of the flood and storm
waters of the district, the conservation and protection of all waters
within the district, including both surface water and groundwater,
and the control of flood and storm waters of streams that have their
source outside of the district, but which streams and the flood
waters thereof flow into the district, to protect from flood or storm
waters the watercourses, lakes, groundwater, watersheds, harbors,
public highways, life, and property in the district, to develop and
improve the quality of all waters within the district for all
beneficial uses, including domestic, irrigation, industrial and
recreational uses, and to protect and improve the quality of all
waters within the district.
(b) The objects and purposes of this act are also to provide for
the participation of the district in the national pollutant discharge
elimination system (NPDES) permit program in accordance with the
Clean Water Act (33 U.S.C. Sec. 1251 et seq.).
SEC. 231. Section 5 of the Lake County Flood Control and Water
Conservation District Act (Chapter 1544 of the Statutes of 1951) is
amended to read:
Sec. 5.
The district is hereby declared to be a body corporate and politic
and may do all of the following:
(a) Have perpetual succession.
(b) Sue and be subject to suit in the name of the district.
(c) Adopt a seal.
(d) Acquire by grant, purchase, lease, gift, devise, contract,
construction, or otherwise, and hold, use, enjoy, let, and dispose of
real and personal property of every kind, including lands,
structures, buildings, rights-of-way, easements, water, and water
rights and privileges, and construct, maintain, alter, and operate
any and all works or improvements, within or outside the district,
necessary or proper to carry out any of the objects of purposes of
this act and convenient to the full exercise of its powers, and
complete, extend, add to, alter, remove, repair, or otherwise improve
any works, or improvements, or property acquired by it as authorized
by this act.
(e) Conserve all waters within the district, and control the flood
and storm waters of the district and the flood and storm waters of
streams that have their sources outside the district, but which
streams and floodwaters thereof flow into the district, and protect
from damage from those flood or storm waters the watercourses,
watersheds, harbors, public highways, life and property in the
district, and the watercourses outside the district of streams
flowing into the district, and to develop waters within or outside
the district for domestic irrigation, industrial, and recreational
uses, and construct works therefor, including works for the storage
and delivery of water, provided, that none of the provisions of this
act shall preclude the exercise by any other political subdivision
that may now or hereafter exist, wholly or in part, within the
district from exercising its powers, although the powers may be of
the same nature as the powers of the district. Any other political
subdivision may, by written agreement with the district, provide for
the use, or joint use, of property or facilities in which that other
political subdivision has an interest, or for the use, or joint use,
of property or facilities in which the district has an interest.
(f) Cooperate and act in conjunction with the federal government,
the state, or any of their engineers, officers, boards, commissions,
departments, or agencies, or with any public or private corporation,
or with the County of Lake or adjacent counties, or with any other
agencies, in the construction of any work for the storage or delivery
of all waters within or outside the district for domestic,
irrigation, industrial, and recreational uses and for the
conservation of waters within the district, for the controlling of
flood or storm waters of or flowing into the district, or for the
protection of life or property in the district.
(g) Carry on technical and other investigations of all kinds, make
measurements, collect data and make analyses, studies, and
inspections pertaining to the beneficial use of waters within or
outside the district, including domestic, irrigation, industrial, and
recreational uses and the conservation of water and the control of
floods both within and outside the district, and for those purposes
the district shall have the right of access through its authorized
representatives to all properties within the district. The district,
through its authorized representatives, may enter upon those lands
and make examinations, surveys, and maps thereof.
(h) Enter upon any land, to make surveys and locate the necessary
works of improvement and the lines for channels, conduits, canals,
pipelines, roadways, and other rights-of-way; acquire by purchase,
lease, contract, gift, devise, or other legal means all lands and
other property necessary or convenient for the construction, use,
supply, maintenance, repair and improvement of the works, enter into
and do any acts necessary or proper for the performance of any
agreement with the United States, or any state, county, district of
any kind, public or private corporation, association, firm or
individual, or any number of them for the joint acquisition,
construction, leasing, ownership, disposition, use, management,
maintenance, repair, or operation of any rights, works, or other
property of a kind which might be lawfully acquired or owned by the
district.
(i) Incur indebtedness and issue bonds in the manner provided in
this act.
(j) In compliance with Article XIII C and Article XIII D of the
California Constitution, cause taxes, fees, or assessments to be
levied and collected for the purpose of paying any obligation of the
district, and to carry out any of the purposes of this act, in the
manner provided in this act.
(k) Make contracts, and employ labor, and do all acts necessary
for the full exercise of all powers vested in the district or any of
the officers thereof by this act.
(l) Exercise the right of eminent domain, either within or outside
the district, to take any property necessary to carry out any of the
objects or purposes of this act. The district in exercising that
power shall, in addition to the damage for the taking, injury, or
destruction of property, also pay the cost of removal,
reconstruction, or relocation of any structure, railways, mains,
pipes, conduits, wires, cable, and poles of any public utility that
is required to be moved to a new location.
The district shall not condemn property outside the County of Lake
unless the consent of the governing board of the county, in which
the property to be condemned is located, has first been obtained.
Nothing contained in this act shall be construed as in any way
affecting the plenary power of any existing city and county or
municipal utility district to provide for a water supply for that
city and county or municipal utility district, or as affecting the
absolute control of any properties of that city and county or
municipal utility district necessary for that water supply and
nothing herein contained shall be construed as vesting any power of
control over those properties in the district or in any officer
thereof, or in any person referred to in this act.
(m) Provide for the operation and maintenance of any works of any
kind or channelways, that may be built or operated by the state or
the federal government without cost to the district, for the control
or disposition of flood and storm waters within the district, whether
those waters
originate within or outside the district.
(n) Contract with the County of Lake, because of the interest of
the County of Lake in the general welfare and preservation and
promotion of land values in the county and in the maintenance,
construction, and improvement of public roads, bridges, and other
county property within any zone that may be damaged or destroyed by
those flood and storm waters and that will be protected by proper
control and disposition of those waters, for the participation by
that county, on a percentage or other appropriate basis, in the
amount or amounts that may be taxed or assessed from time to time
against any lands in any zone by any taxing or assessing agency or
authority, including the district, to provide funds for the operation
and maintenance of any works of any kind or channelways which may be
built, maintained, or operated by the state or the federal
government or the district for the benefit of that zone; and the
County of Lake may enter into that contract with the district.
(n) Levy assessments in any zone, on the basis of benefits as
provided in Section 13 or 13.1, to raise funds for payment of
expenses of operation and of works or channelways in that zone and
the cost of levying and collecting those assessments.
(o) Levy and collect special taxes in the district or any zone in
accordance with Section 13.
(p) Levy and collect benefit assessments in the district or any
zone in accordance with Section 13.
(q) Participate alone, or jointly with Lake County, or cities or
districts within Lake County, in the national pollutant discharge
elimination system (NPDES) permit program in accordance with the
Clean Water Act (33 U.S.C. Sec. 1252 et seq.), and undertake
necessary acts in connection with that program.
SEC. 232.
Any section of any act enacted by the Legislature during the 2005
calendar year that takes effect on or before January 1, 2006, and
that amends, amends and renumbers, adds, repeals and adds, or repeals
a section that is amended, amended and renumbered, added, repealed
and added, or repealed by this act, shall prevail over this act,
whether that act is enacted prior to, or subsequent to, the enactment
of this act. The repeal, or repeal and addition, of any article,
chapter, part, title, or division of any code by this act shall not
become operative if any section of any other act that is enacted by
the Legislature during the 2005 calendar year and takes effect on or
before January 1, 2006, amends, amends and renumbers, adds, repeals
and adds, or repeals any section contained in that article, chapter,
part, title, or division.