BILL ANALYSIS
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|Hearing Date:April 27, 2009 |Bill No: SB |
| |820 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Gloria Negrete McLeod, Chair
Bill No: SB 820Author:Business, Professions and
Economic
Development
As Amended: April 21, 2009 Fiscal: Yes
SUBJECT: Consumer Affairs: professions and vocations.
SUMMARY: Makes several non-controversial, minor, non-substantive or
technical changes to various miscellaneous provisions pertaining to
regulatory boards of the Department of Consumer Affairs (DCA) and
professions regulated under the Business and Professions Code (BPC).
Existing law:
1)Provides for the licensing and regulation of various professions and
businesses by some 26 boards, eight bureaus, and one commission
within the DCA under various BPC licensing acts.
2)Provides for the Office of Examination Resources (OER) within the
DCA. The OER designs licensing examinations and conducts
occupational analyses for various regulatory programs within DCA
(BPC 139, 1632.5, 1634.2, 2493, 4200.3, 4200.4, 4938, 7303.2).
3)Provides authority to issue an infraction citation for practicing in
certain industries regulated by specified DCA programs without the
required license, but that authority does not apply to the
Professional Fiduciaries Bureau (BPC 146).
4)Requires the California Board of Accountancy (CBA) to hold public
meetings and specifies that a seven day notice must be given before
a meeting. (BPC 5016) and authorizes the CBA to establish an
administrative committee, whose members serve for one year, and
describes the committee's duties (BPC 5021, 5022, 5023).
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5)Requires landscape architecture candidates to have a combination of
six years of education and experience prior to qualifying for the
examinations. Requires reciprocity landscape architecture
candidates to only have passed the examinations prior to licensure
(does not contain the same initial experience requirements of a
California candidate).
6)Establishes the Contractors State Licensing Board (CSLB) to license
and regulate contractors and makes various provisions and
requirements relating to the regulation of contractors, including,
provisions relating to unlicensed practice, owner-builders, timely
payment of subcontractors, and other requirements and specifications
(BPC 7028.7, 7044, 7044.01, 7108.5, 7159, 7159.5, 7159.14).
7)Contains the following provisions pertaining to the Licensed
Repossessors:
a) Licenses repossession agencies by the Bureau of Security and
Investigative Services (BSIS), and defines various terms relating
to that practice, including "collateral" as any vehicle, boat,
recreational vehicle, motor home, appliance or other property
subject to a security agreement (BPC 7500.1).
b) Permits a qualified manager to be in charge of one licensed
location at a time (BPC 7505.5).
c) Establishes procedures for the removal, inventory and storage
of personal effects from reposed collateral, and allows a debtor
to waive the preparation of an inventory, as specified. Requires
special interest license plates in the personal effects of the
debtor to be removed from the collateral and destroyed, as
specified, if the plates are not claimed by the debtor within 60
days (BPC 7507.9)
d) Requires in any written report submitted to the client, that a
repossessor shall exercise diligence to make the report true and
correct (BPC 7505.11).
e) Specifies that a vehicle repossession is complete when the
repossessor gains entry to the vehicle, or when the vehicle is
connected to the repossessors tow vehicle (BPC 7507.12).
f) Requires that when the legal owner takes possession of a
vehicle, as specified, the person taking possession of the
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vehicle must notified specified law enforcement agencies within
g) one hour of taking possession of the vehicle (Vehicle Code
28).
h) Permits a tow truck to mount the rear license plate (VC
5201) and stop lamps (VC 24603) in, as specified, in a separate
location on the vehicle than is generally allowed for other
vehicles.
8)Provides for the regulation of embalmers and apprentice embalmers by
the Cemetery and Funeral Bureau (CFB) under DCA, and requires an
applicant to complete a course in embalming school and furnish proof
of completing a high school course or evidence of licensed practice
in another state, as specified (BPC 7606, 7616, 7641, 7643, 7665,
7666, 7671, 7725.5). Also requires an applicant to pass an
examination which includes specified subjects, and requires the CFB
to examine applicants at least once annually (BPC 7643, 7646,
7647, 7662, 7729).
9)Contains the following provisions pertaining to the Bureau of
Automotive Repair (BAR):
a) Requires the Director of Consumer Affairs (Director) to
validate the registration and to send proof of validation to the
automotive repair dealer. The Director may refuse to validate,
or may temporarily or permanently invalidate the registration of
an automotive repair dealer for specified acts or omissions by
the automotive repair dealer or associated person (BPC 9884.2,
9884.7, 9884.12).
b) Authorizes the BAR to take disciplinary action for a
conviction relating to the "qualifications, functions, and
duties" of a licensee (BPC 9889.3, HSC 44072.1, 44072.2).
c) Under the vehicle inspection and maintenance (smog check)
program, prescribes certain cost limits for repairs under the
program, and requires a smog check station to post a sign
advising customers of those cost limits (HSC 44017.3).
10) Establishes the Department of Real Estate (DRE) within the DCA to
license and regulate real estate brokers and real estate sales
persons.
This bill:
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1)Makes changes to the following general provisions in the BPC
pertaining to the Office of Examination Resources (OER):
a) Changes the name of the Office of Examination Resources (OER)
to the Office of Professional Examination Resources (OPER) (BPC
139, 1632.5, 1634.2, 2493, 4200.3, 4200.4, 4938, 7303.2).
2)Makes the following changes pertaining to the Professional
Fiduciaries Bureau (PFB):
a) Includes professional fiduciary as a profession for which an
infraction may be issued for practicing without a license. (BPC
146).
3)Makes the following changes pertaining to the California Board of
Accountancy (CBA):
a) Deletes references to notices regarding Board of Accountancy
(CBA) meetings and instead refers to the Bagley-Keene Open
Meeting Act (BPC 5016).
b) In addition to the CBA's administrative committee, also refers
to a qualifications committee and changes committee terms from
one to two years (BPC 5021).
c) Clarifies that the provisions apply to the qualifications
committee and clarifies its duties (BPC 5022, 5023).
4)Makes the following changes pertaining to Landscape Architects:
a) Corrects a drafting error in prior legislation to clarify that
a reciprocity candidate seeking licensure in California must meet
the same experience requirements as any other candidate for
licensure. (BPC 5651).
5)Makes the following changes pertaining to the Contractors State
Licensing Board (CSLB):
a) Recasts provisions of existing law for clarity and readability
(BPC 7028.7, 7044, 7044.01, 7108.5).
b) Corrects a reference to another section of law and makes
technical corrections and clarifications (BPC 7159, 7159.5,
7159.14).
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6)Makes the following changes pertaining to Licensed Repossessors:
a) Makes technical clarification; includes "trailer" in the
definition of "collateral;" clarifies by adding "specific" the
definition that each item of collateral is to be considered
separately (BPC 7500.1)
b) Permits a qualified manager to be in charge of two, rather
than one license location (BPC 7505.5).
c) Authorizes reposessors to retain a license plate to be
returned to the debtor upon request, rather than destroy the
license plate; clarifies that the repossessor must consent to the
release of personal effects without an inventory; makes technical
changes (BPC 7507.9)
d) Clarifies that a repossessor shall not appraise the value of
any collateral (BPC 7505.11).
e) Provides that once the repossession is complete, a only the
legal owner or other person with legal authority may direct the
repossessor to release a vehicle (BPC 7507.12)
f) Requires that if more than one vehicle is repossessed, each
vehicle shall be considered and reported separately (Vehicle Code
28).
g) Permits a repossessor's tow vehicle to mount the license plate
(VC 5201) and stop lamps (VC 24603) in the same manner as
other tow vehicles.
7)Makes the following changes pertaining to the Cemetery and Funeral
Bureau (CFB):
a) Updates terminology to refer to "mortuary science programs"
instead of "embalming schools or colleges" and makes clarifying
and conforming changes (BPC 7606, 7616, 7641, 7643, 7665,
7666, 7671, 7725.5).
b) Requires the CFB to accept a national examination for embalmer
licensing and to administer an examination only on California law
applicable to the practice of embalming and makes clarifying and
conforming changes (BPC 7643, 7646, 7647, 7662, 7729).
c) Provides that an embalmer or apprentice embalmer applicant
must furnish official transcripts to the CFB and deletes the
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requirement to have completed high school for applicants who have
graduated from a mortuary science program (BPC 7643, 7662).
8)Makes the following changes pertaining to the Bureau of Automotive
Repair (BAR):
a) Updates terminology relating to BAR applicants and registrants
to refer to "issue," "deny," "suspend," or "revoke" registrations
rather than "validate," "refuse to validate," invalidate
temporarily," or "invalidate permanently" (BPC 9884.2, 9884.7,
9884.12).
b) Adds specific authority for BAR to suspend, revoke or
otherwise discipline an automotive repair dealer (ARD)
registration based on a criminal conviction (BPC 9884.7).
c) Clarifies that BAR may take disciplinary action for a
conviction relating to the "qualifications, functions, or duties"
rather than to "qualifications, functions and duties." Thus
requiring the conviction to relate to one characteristic
(qualifications, functions, or duties) instead of all three (BPC
9889.3, HSC 44072.1, 44072.2).
d) Revises the requirement for a smog check station to post a
sign advising customers of cost limits for repairs under the smog
check program to instead require the sign to inform customers
about their options when a vehicle fails a smog check inspection
and makes technical and clarifying changes (HSC 44017.3).
9)Makes the following changes pertaining to the Department of Real
Estate (DRE):
a) Makes technical and clarifying changes to the real estate law
(BPC 10146).
FISCAL EFFECT: Unknown. This bill is keyed "fiscal" by Legislative
Counsel.
COMMENTS:
1.Purpose. This bill is a Committee bill authored by the Business,
Professions and Economic Development Committee and is intended to
consolidate a number of non-controversial provisions related to
various regulatory programs and professions governed by the Business
and Professions Code. Consolidating the provisions in one bill is
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designed to relieve the various licensing boards, bureaus and
professions from the necessity and burden of having separate
measures for a number of non-controversial revisions.
Many of the provisions of this bill are minor, technical and
updating changes, while other provisions are substantive changes
intended to improve the ability of various licensing programs and
other entities to efficiently and effectively administer their
respective laws.
However, as a Committee bill, if controversy or opposition should
arise regarding any provision that cannot be resolved, then that
provision will be removed from the bill. This will eliminate the
chance of placing any of the other provisions in jeopardy.
2.Background. The following is background and reasons for the more
significant and substantive provisions in this measure:
General Provisions - Office of Examination Resources (OER).
According to the DCA, OER receives numerous calls that need to be
redirected because OER is often mistaken for DCA's Office of Human
Resource's Selection Services unit. This proposal would change the
name of the Office of Examination Resources (OER) to the Office of
Professional Examination Resources (OPER). According to the OER
they receive numerous calls that need to be redirected because their
office is often mistaken for the Office of Human Resource's
Selection Services unit. This confusion usually leads to the
frustration of the caller. The OER believes this name change would
help alleviate this confusion and help the OER deliver better
customer service.
Professional Fiduciaries Bureau (PFB). According to DCA, every
other regulatory program within DCA is either included in the
infraction authority under Section 146, or has statute specific to
that program making it a misdemeanor to practice without a license.
However, the PFB, created by SB 1550 (Figueroa, Chapter 491,
Statutes of 2006), does not have a specific statute making it a
misdemeanor, nor is it included under Section 146 listing it as an
infraction. This bill would >
California Board of Accountancy (CBA). According to the CBA the
Bagley-Keene Act (created in 1967) supersedes the outdated meeting
notice information in the Accountancy Act (specifically 5016,
which was added in 1945). CBA states that various provisions only
referring to the board's committees need to be clarified and
updated, establishing two-year terms instead of just one for
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committee members, and naming the board's qualifying committee and
clarifying its duties.
Landscape Architects. According to the Architect's Board, prior to
January 2005, reciprocity candidates for landscape architect
licensure were mandated to meet California's experience requirement.
In 2004, various references relating to landscape architects were
updated by SB 1914 (B& P Committee, Chapter 865, Statutes of 2004),
and as an oversight, also deleted the reference of reciprocity
candidates meeting California's experience requirement. The
drafting error in the prior legislation should be corrected to
clarify that a reciprocity candidate seeking licensure in California
must meet the same experience requirements as any other candidate
for licensure.
Contractors State Licensing Board (CSLB). According to the CSLB,
several provisions of law are unclear and difficult to read and
should be reorganized for readability and clarity. The CSLB also
has identified several incorrect references in law.
Licensed Repossessors. According to the California Association of
Licensed Repossessors (CALR), trailers should be considered as
collateral, and that each item of collateral should be considered
separately. CALR believes that the requirements should be updated
to allow a qualified manager to be in charge of two, rather than one
licensed location. Personalized license plates are the property of
the debtor and do not belong on the repossessed vehicle, and once
destroyed, as required by current law, the debtor would have to
apply to the Department of Motor Vehicles (DMV) and pay to have the
plates remanufactured.
Allowing the reposessor to retain a license plate, rather than
destroy it should save money for both the debtor and DMV. Current
law allows a debtor to waive the preparation of an inventory of
personal effects, and release them directly to the debtor. CALR
states that at times in the field it is unwise or dangerous for the
repossessor to interrupt the repossession process to turn over the
personal effects to the debtor, and at times it may not be clear
that the person requesting the article is indeed the debtor. In
order to operate safely and to be sure that personal effects are
released to the proper party, it is important to give the
repossessor some discretion whether the situation warrants the
release of personal effects without an inventory.
Repossessors are not trained or qualified to express an opinion on
the value of a vehicle. On occasion, according to CALR, a legal
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owner may ask the repossessor to give an estimate of the value of a
vehicle and if the estimate is inaccurate, it may lead to a dispute
or even litigation. To avoid those situations, it is appropriate to
clarify that a repossessor shall not appraise the value of any
collateral.
Once a repossession is complete, only the legal owner may direct the
release of the vehicle, this clarifies that a person demanding a
vehicle's release must have legal authority to do so. Under current
law, when a vehicle is repossessed, the repossessor must notify law
enforcement within one hour, thus allowing the fact of the
repossession to be entered into the statewide CLETS (California Law
Enforcement Telecommunications System) network. On occasion, when
more than one vehicle is repossessed at the same time, the
repossessor will only give notice of one vehicle. This bill
clarifies that each repossessed vehicle must be considered and
reported separately. This bill conforms the provisions relating to
license plate and stop lamp mounting to those for other tow
vehicles.
Cemetery and Funeral Bureau (CFB). According to the DCA, there are
two community colleges in California that offer a two-year mortuary
science program where upon completion and graduation, students
receive an associates degree. In order to graduate, students must
take a national examination, which consists of a written examination
on the "sciences" section (embalming) and the "arts" section
(funeral director). In addition, students must then take and pass
California's embalming examination in order to become a licensed
embalmer. Because students are already taking the national
examination, it is duplicative for them to have to test again (on
the actual practice of embalming) in order to obtain a license. An
examination on only the laws and regulations pertaining to embalming
in California would ensure entry level competencies, meet the health
and safety concerns of consumers and alleviate a barrier to
licensure. This bill updates the laws relating to embalmers to
require applicants to successfully pass the sciences portion of the
national examination and updates terminology to refer to "mortuary
science programs instead of "embalming schools or colleges." The
bill makes updating, clarifying and conforming changes.
Bureau of Automotive Repair (BAR). The law requires the Director to
validate, refuse to validate, or may temporarily or permanently
invalidate the registration of an automotive repair dealer, however
these are outdated terms, and regulations identify these actions as
denials, suspensions, and revocations. For purposes of
clarification only, changes "and" to "or" "functions" and "duties."
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This would only require the conviction relate to one characteristic
(qualifications, functions, or duties) instead of all three as
existing law now technically reads (qualifications, functions, and
duties).
According to DCA, BAR is one of several programs that do not have
specific statutory authority to discipline a licensee due to the
conviction of a substantially related crime. Instead, BAR relies on
BPC Section 490 which provides general authority for such
discipline. Recently, an appellate case has cast doubt on the
applicability of Section 490 in cases where the licensing agency has
no similar specific statute in its disciplinary provisions
(Petropoulos v. Dept. of Real Estate, August 30, 2006, DJDAR 11720).
Last year SB 797 (Ridley-Thomas, Chapter 33, Statutes of 2008)
clarified the intent of the Legislature in enacting Section 490.
However, despite the amendment prosecuting ARDs is still difficult
because some Administrative Law Judges (ALJs) do not acknowledge the
legislative intent regarding Section 490 and BAR's authority.
Therefore, it is necessary for BAR to have specific authority to
take disciplinary action.
This bill clarifies that BAR may take disciplinary action for a
conviction relating to the "qualifications, functions, or duties"
rather than to "qualifications, functions, and duties." Thus
requiring the conviction to relate to any one characteristic
(qualifications, functions, or duties) instead of all three.
While the smog check program requires a smog check station to post a
sign advising customers of the prescribed cost limits, it does not
provide adequate information to consumers about the smog check
program and more specifically, about the Consumer Assistance Program
(CAP).
Department of Real Estate (DRE). Makes technical and clarifying
changes to the real estate law (BPC 10146).
SUPPORT AND OPPOSITION:
Support:
California Board of Accountancy
Contractors State License Board
Opposition:
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None received as of April 22, 2009
Consultant:G. V. Ayers