BILL ANALYSIS
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|Hearing Date:April 19, 2010 |Bill No:SB |
| |1491 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Gloria Negrete McLeod, Chair
Bill No: SB 1491Author:Business, Professions and
Economic
Development Committee
As Introduced: March 11, 2010 Fiscal:Yes
SUBJECT: 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
23 boards, 4 committees, 7 bureaus, and 1 commission within the DCA
under various BPC licensing acts.
2)Contains the following provisions relating to the California Board of
Accountancy (CBA):
a) Authorizes CBA to establish an administrative committee to
provide advice and assistance relative to investigations of
licensee misconduct (BPC 5020, 5021, 5120, 5122; Government
Code 11126).
b) Authorizes the creation of other advisory committees
consisting of public accountants or certified public accountants
(CPAs) who need not be members of the CBA (BPC 5024).
c) Requires California-licensed accounting firms to undergo a
peer review of their accounting and auditing services every 3
years, and identifies who must conduct peer reviews and issue
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peer review reports (AB 138, Hayashi, Chapter 312, Statutes of
2009) (BPC 5076).
d) Effective January 1, 2014, deletes the 120-hour education
pathway for licensure, and requires, an applicant for a CPA
license to meet a 150-hour education requirement (SB 819, Yee,
Chapter 308, Statutes of 2009) (BPC 5090).
e) Makes various provisions relating to accountancy (BPC 5109,
5109.5).
3)Contains the following provisions relating to the Contractors State
License Board (CSLB):
a) Makes reference to an outdated notice about unlicensed
contractors which was repealed by SB 1914 (B&P Committee, Chapter
865, Statutes of 2004) (BPC 7028.6).
b) Requires a citation to an unlicensed contractor to be issued
within four years of the act that is the basis for the citation
(BPC 7028.9).
c) Establishes civil penalties for unlicensed contracting or
aiding and abetting unlicensed activity (BPC 7028.7, 7099.2).
d) Makes an outdated reference to the State Department of Health
Services, and requires CSLB to administer an asbestos open book
examination (BPC 7058.5).
e) Under the Subletting and Subcontracting Fair Practices Act in
the Public Contract Code (PCC 4111), authorizes the CSLB to
discipline contractors for violations of that Act; however, that
authority is not reflected in the BPC (BPC 7110).
4)Authorizes the Board of Guide Dogs for the Blind (BGDB) to approve
guide dog schools to provide home guide dog training, if the school
applies and submits a written plan for conducting home training (BPC
7210.7).
5)Contains the following provisions relating to the Board of Barbering
and Cosmetology (BBC):
a) Establishes various specialties within the practice of
cosmetology, and specifies that nail care is specified care for
the nails of any person (BPC 7316).
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b) Provides that unlicensed barbering, cosmetology, or
electrolysis is a misdemeanor violation (BPC 7317).
c) Prohibits a licensee providing a manicure or pedicure from
using metal instruments except those instruments necessary for
the cutting, trimming, manicuring, or pedicuring of nails or
cuticles (BPC 7320.1).
d) Requires a licensed establishment to provide handwashing
facilities, including running water, soap, and approved sanitary
towels (BPC 7352).
e) Provides that BBC licensees issued a notice of violation or a
citation may appeal to a disciplinary review committee, and
provides that the licensee shall appear in person and may file a
written appeal (BPC 7410).
6)Contains the following provisions relating to human remains:
a) Specifies that cremated remains may be removed in a durable
container from the place of cremation or interment and kept in
the dwelling owned or occupied by the person having the right to
control disposition of the remains, or other specified places,
under the authority of a disposition permit issued by the local
registrar of vital records (Health and Safety Code 7054.6,
8344).
b) Requires a crematory to have associated with it a cemetery,
columbarium, burial park, or mausoleum (Health and Safety Code
8340).
This bill:
1)Makes the following changes relating to the California Board of
Accountancy (CBA):
a) Names the CBA's enforcement advisory committee so that its
name clearly reflects its function, and makes conforming changes
(BPC 5020, 5021, 5120, 5122, Government Code 11126).
b) Clarifies that the CBA may appoint public board members to its
committees (BPC 5024).
c) Recasts the provisions regarding issuing peer review reports
for greater clarity (BPC 5076).
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d) Cleans up language relating to alternative licensure pathways
which was made obsolete by last year's SB 819 (Yee, Chapter 308,
Statutes of 2009) (BPC 5090).
e) Makes technical, correcting and updating changes (BPC 5109,
5109.5).
2)Makes the following changes relating to the Contractors State License
Board (CSLB):
a) Makes conforming changes by removing a reference to a notice
requirement which was repealed by SB 1914 (B&P Committee, Chapter
865, Statutes of 2004) (BPC 7028.6).
b) Extends the time for the CSLB to pursue a complaint against an
unlicensed contractor to 18 months after the complaint is filed,
conforming with the same timeframe for action against a licensee
(BPC 7028.9).
c) Clarifies that civil penalties assessed by the CSLB for
unlicensed contracting or aiding and abetting unlicensed activity
are not subject to other provisions of law which restrict fine
amounts (BPC 7028.7, 7099.2).
d) Corrects a reference to the Department of Public Health and
authorizes the CSLB to administer its asbestos open book
examination electronically (BPC 7058.5).
e) Clarifies that violation of the Subletting and Subcontracting
Fair Practices Act in the Public Contract Code is a cause for
disciplinary action (BPC 7110).
3)Clarifies that guide dog schools and guide dog instructors licensed
by the Board of Guide Dogs for the Blind may provide in-home
training, regardless of the user's experience with a guide dog (BPC
7210.7).
4)Makes the following changes relating to the Board of Barbering and
Cosmetology (BBC):
a) Clarifies the definition of nail care to refer to massaging,
cleansing, or beautifying from the elbow to the finger tips or
the knee to the toes (BPC 7316).
b) Clarifies that unlicensed activity violations which are
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misdemeanors may also be subject to administrative fines (BPC
7317).
c) Clarifies that metal instruments for the smoothing and
massaging of hands and feet may be used when providing a manicure
or pedicure (BPC 7320.1).
d) Clarifies that a licensed establishment may provide towels or
hand air dryers instead of "approved sanitary towels" in the
establishment's hand washing facilities (BPC 7352).
e) Clarifies that licensees appealing an administrative fine may
either appear in person or may file a written appeal (BPC
7410).
5)Makes the following changes relating to human remains:
a) Provides that cremated remains may be placed into "keepsake
urns" and kept as authorized by those with the right to control
disposition; requires a disposition permit to be obtained for
each keepsake urn; makes conforming and clarifying changes
(Health and Safety Code 7054.6, 8344).
b) Repeals an obsolete provision that conflicts with current
licensure practices (Health and Safety Code 8340).
FISCAL EFFECT: Unknown. This bill is keyed "fiscal" by Legislative
Counsel.
COMMENTS:
1.Purpose. This bill is one of three "committee bills" 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 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.
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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:
a) California Board of Accountancy (CBA). According to CBA , the
term, "administrative committee," does not clearly communicate to
licensees or to consumers the actual role that this committee
fulfills as an enforcement advisory committee to the CBA;
therefore, the CBA has recommended renaming the committee as the
enforcement advisory committee. The CBA states that current
practice is to allow public board members to be appointed to the
CBA's legislative committee, the committee on professional
conduct and other committees of the CBA. However, it is unclear
whether this practice is consistent with BPC 5024 which states
that CPAs may be appointed to committees; therefore, this measure
would clarify the board's practice of appointing non-CPA board
members (i.e. public members) to committees. The law provides
that a licensee must conduct a peer review, however it is not
clear that a licensee must issue the actual peer review report;
this bill would clarify those provisions.
b) Contractors State License Board. According to the CSLB, the
requirement for an unlicensed person to give a notice to
consumers was repealed by SB 1914 (B&P Committee, Chapter 865,
Statutes of 2004); the bill makes a conforming change by removing
reference to that notice. Complaints received against unlicensed
contractors just prior to the expiration of the statute of
limitations (four years from the act or omission) cannot be
pursued due to the lack of sufficient time to conduct an
investigation, according to CSLB, while the timeframe for action
against a licensee is 18 months after the complaint is filed; the
bill conforms the timeframe for taking action against an
unlicensed contractor to the time for taking action against a
licensee. CSLB further states that BPC 125.9 and 148 places
a $5,000 cap for fines assessed by agencies under the DCA, while
the contractor's law provides for additional civil penalties
assessed by the CSLB for unlicensed contracting or aiding and
abetting unlicensed activity. This bill clarifies that that
these civil penalties are not subject to those general provisions
of law which restrict fine amounts. CSLB indicates that
currently the asbestos open book examination is administered by
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paper and pencil, a more expensive and slow examination method.
The bill would require the CSLB to offer the exam and study
booklet online on its Internet website. The CSLB also indicates
that the Subletting and Subcontracting Fair Practices Act in the
Public Contract Code ( 4111), authorizes the CSLB to discipline
contractors for violations of the Act; however BPC 7110 does
not include a specific reference to violations of the PCC. This
bill would make reference to that Act.
c) Board of Guide Dogs for the Blind. According to the BGDB,
current law is unclear, restrictive and problematic on the
provision of in-home training to potential guide dog users; this
bill clarifies these provisions and provides that guide dog
schools and guide dog instructors licensed by the board may
provide in-home training, regardless of the user's experience
with a guide dog.
d) Board of Barbering and Cosmetology. According to the BBC, the
law is unclear whether the practice of nail care includes
massaging, cleansing, or beautifying from the elbow to the finger
tips or the knee to the toes. The amendments clarify these
provisions. BBC states, that although the law provides that
unlicensed barbering, cosmetology, or electrolysis is a
misdemeanor violation, it is unclear whether it may be subject to
an administrative citation and fine. This bill would clarifiy
that unlicensed practice may also be subject to an administrative
fine. BBC also indicates that the law prohibits a licensee
providing a manicure or pedicure from using metal instruments,
except those instruments necessary for the cutting, trimming,
manicuring or pedicuring of nails or cuticles. However it does
not include the use of metal instruments to smooth or massage the
hands or feet. The amendments would clarify that mental
instruments may be used for the smoothing and massaging the hands
or feet.
BBC further indicates that provisions requiring an establishment to
have "approved sanitary towels" has been a source of confusion
for licensees and board staff alike. While the statute attempts
to be specific, it only serves to make the towel requirements
more vague, according to BBC, and this bill clarifies those
provisions. BBC states that in order to process appeals as
expeditiously and conveniently as possible for licensees, the
BBC's disciplinary review committee has recently allowed
citations to be appealed in writing without the licensee
physically appearing. However, the statutory language could be
interpreted to require the physical appearance of the appellant,
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which is expensive for the licensee, and time consuming for the
disciplinary review committee. Giving individuals the option to
submit a written appeal would mitigate these issues, according to
BBC.
Human Remains. According to DCA, current law requires a crematory
to be associated with a cemetery, columbarium, burial park, or
mausoleum. However, this provision is confusing because it seems
to suggest that a crematory must be located within a cemetery.
Many licensed crematories do not operate within a cemetery and
the provision is outdated. The amendment will repeal this
provision.
According to the California Funeral Directors Association (CFDA),
the Health and Safety Code makes specified provisions regarding
cremated remains including providing that cremated remains may be
removed in a durable container from the place of cremation or
interment and kept in the dwelling owned or occupied by the
person having the right to control disposition of the remains, or
other specified places, under the authority of a disposition
permit issued by the local registrar of vital records. These
provisions do not allow for family members or other loved ones to
use keepsake urns to hold small portions of the cremated remains.
This bill would permit the use of keepsake urns, as specified
(Health and Safety Code 7054.6, 8344).
3.Arguments in Support. The Contractors State License Board (CSLB)
writes in support that existing law authorizes the Registrar of
Contractors to discipline a licensee for violations of the licensing
law within 4 years after the act or omission that is the basis for
the discipline, or within 18 months after the complaint is made,
whichever is later. This bill would provide the same statute of
limitations period for issuing a citation to a non-licensee for
contracting without a license. Currently any action must be taken
within 4 years of the act. The additional
18 months is needed to ensure there is adequate time to investigate
complaints that are received too close to the filing deadline.
CSLB further indicates that revising the open-book asbestos
examination to require the CSLB to make the asbestos examination
booklet available online would provide efficiencies and cost savings
to the board.
CSLB additionally states that the bill harmonizes the Business and
Professions Code with the Public Contract Code by adding the
specific disciplinary provisions for willful or deliberate disregard
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of the state building labor and safety laws to the contractor
licensing laws.
SUPPORT AND OPPOSITION:
Support:
California Board of Accountancy
Contractors State License Board
State Board of Guide Dogs for the Blind
Opposition:
None received as of April 12, 2010.
Consultant:G. V. Ayers