BILL ANALYSIS �
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|Hearing Date:May 7, 2012 |Bill No:SB |
| |975 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Curren D. Price, Jr., Chair
Bill No: SB 975Author:Wright
As Amended:January 19, 2012 Fiscal:No
SUBJECT: Professions and vocations: regulatory authority.
SUMMARY: Provides that the regulatory boards within Department of
Consumer Affairs (DCA) shall have the sole and exclusive authority to
license and regulate the practice of professions and vocations
regulated by those boards; provides that no city, county, city and
county, school district, other special district, local or regional
agency, or joint powers agency, shall impose a licensing requirement
upon a person licensed to practice a profession or vocation regulated
by a DCA board; makes legislative findings and declarations.
Existing law:
1)Provides for the licensing and regulation of more than 2.4 million
professionals in more than 255 professions and 100 businesses by
some 40 boards, bureaus, committees (boards) and other programs
within the Department of Consumer Affairs (DCA) under various
licensing acts within the Business and Professions Code (BPC). (BPC
� 100 ff.)
2)Requires the DCA boards to license, register, or certify
practitioners, to assure that the licensed professional has met the
minimum qualifications for licensure, investigate and resolve
complaints between consumers and licensed professionals, and
discipline licensees for violation of any laws or their licensing
acts, including those who may practice outside of their scope of
practice or are involved in unlicensed activity.
3)Requires certain licensed professions to meet specified continuing
education requirements in order to renew a license.
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4)Provides that no city or county shall prohibit a person, authorized
by one of these boards in a particular business from engaging in
that business, and shall not prohibit a healing arts professional
licensed by one of those boards from engaging in any act or
performing any procedure that falls within the professionally
recognized scope of practice of that licensee. (BPC � 460)
This bill:
1)Makes legislative findings and declarations, including:
a) If other state governmental entities or local governmental
entities were to require persons licensed by a board within the
DCA to satisfy additional licensing requirements in order to
practice their professions or vocations, before or within the
respective governmental entity, this would impose enormous
regulatory burdens upon the licensed persons.
b) The practice of adopting continuing education requirements
through regulatory action, and the imposition of mandatory
training programs to satisfy requirements for licensure,
certification, or registration, is becoming more prevalent.
c) The imposition of educational and training requirements by
these governmental entities, in addition to state licensing
requirements, inhibits the practice of those licensed
professions.
d) Further, as additional licensing requirements are imposed, it
is becoming difficult and impractical for the state and local
governmental entities to administer conflicting and diverse
requirements, resulting in greater confusion and increased costs.
e) It is therefore imperative that licensed professions and
vocations have a single set of licensing requirements that apply
uniformly throughout the state and apply equally in all state and
local governmental entities, and that licensed professionals
clearly understand the expectations with which they must comply
in order to legally operate within their scopes of practice in
the state.
2)Provides that the boards within DCA shall have the sole and exclusive
authority to license and regulate the practice of professions and
vocations regulated by those boards under the BPC.
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3)Provides that no city, county, city and county, school district,
other special district, local or regional agency or joint powers
agency, shall impose a licensing requirement upon a person licensed
to practice a profession or vocation regulated by a DCA board.
4)Specifies that a licensing requirement shall not be imposed upon a
person licensed to practice a profession or vocation regulated by a
DCA board other than by the BPC or by a regulation adopted by a
board through its regulatory authority.
5)Defines, for the purposes of the bill, "licensing requirements" to
include:
a) Additional training or certification requirements to practice
within the scope of practice of a profession or vocation.
b) Continuing education requirements for renewal or continuation
of licensure.
c) Any additional requirement beyond those in the BPC or in board
regulations.
6)Provides that nothing in the bill shall be construed to either:
a) Prohibit parties from contractually agreeing to additional
experience, qualifications, or training of a licensee in
connection with performance of a contract.
b) Prohibit a licensee from voluntarily undertaking satisfaction
of certification programs not required under the BPC for
licensure by a board`.
FISCAL EFFECT: Unknown. This bill has been keyed "nonfiscal" by
Legislative Counsel.
COMMENTS:
1.Purpose. This bill is sponsored by American Council of Engineering
Companies (ACEC, or Sponsor). According to ACEC, the bill seeks to
address a growing practice for third party state and local agencies,
departments, local bodies (State Water Resources Control Board,
California Energy Commission, local air pollution districts, among
others) to impose a training class and certificate program on
licensed professionals in the course of adopting regulations.
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ACEC states that these training and certificate requirements are
created and imposed outside of, and in addition to, the licensure
requirements adopted by state statute and enforced by DCA
professional boards. Licensed professionals must then comply with
these mandates in order to meet the permit requirements, even if the
scope of work is clearly already within their professional licensure
as determined by their DCA Board.
ACEC further argues that this forced "continuing education" occurs
outside of the state law that sets standards for professional
licensure and conduct through DCA. "This practice incurs costs to
business, individuals, and only benefits the cottage industries of
instructors and certificate associations that collaborate in the
imposition of these programs."
The Sponsor contends that the bill would establish that the boards,
bureaus, and commissions in the DCA shall have the sole
responsibility in state government to license and regulate the
practice of professions regulated by the Business and Professions
Code, unless explicit statutory authority directs a third party
agency to implement such a program.
2.Background. This bill is a follow up to last year's AB 1210
(Garrick) which was vetoed by the Governor. That bill, also
sponsored by ACEC, would have provided that a licensed civil
engineer shall not be required to meet any additional experience,
training, or certification requirements in order to perform
activities in the preparation of a Storm Water Pollution Prevention
Plan (SWPPP), as required by the State Water Resources Control Board
(SWRCB).
ACEC sponsored the bill because the SWRCB adopted regulations effective
July 1, 2010, requiring a Construction Activities Storm Water
General Permit (CGP) for specified construction activities. The
regulation further requires that the Qualified SWPPP Developer (QSD)
and the Qualified SWPPP Practitioner (QSP) responsible for creating,
revising, overseeing, and implementing the SWPPP must attend a State
Water Board sponsored or approved QSP and/or QSP training course by
September 2, 2011.
ACEC argued that requiring a licensed professional to attend an
additional training course in order to practice what is already
under the licensee's scope of practice, placed an additional
requirement upon the licensed practice of engineering, and argued
that the SWRCB exceeded its authority when mandating this
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requirement.
When the bill was first before this Committee in July, 2011, AB 1210
would primarily have done two things: (1) provided that all civil
engineering activities performed in the preparation of stormwater
pollution plans must be performed by a civil engineer, and (2)
provided that a civil engineer shall not be required to meet any
additional experience, training, or certification requirements in
order to perform activities in the preparation of storm water
pollution prevention plans. In that form, the bill was heavily
opposed by a number of contractor and engineering groups arguing
that the bill was not needed, and would eliminate a number of
qualified individuals from serving as a QSD. Ultimately, only
testimony was taken on the bill at that time.
Later, AB 1210 was amended to more narrowly provide that a licensed
civil engineer shall not be required to meet any additional
experience, training, or certification requirements in order to
preparation a plan. In that form, this Committee approved the bill
on a 5-0 vote. Ultimately, however, the bill was vetoed by the
Governor.
In his veto message, Governor Brown stated:
"Many of these storm plans are found to be deficient and those
preparing them need a much better understanding of the necessary
elements of a solid plan. It is not feasible to inspect every
plan or every construction site but it is essential to have some
process in place to ensure compliance in preparing complete and
sound storm water plans.
"The current process depends on a training education program for
all professionals who prepare storm plans; engineers, geologists,
hydrologists, and landscape architects. This bill, a piecemeal
approach, exempts only one profession, the civil engineers. A
more comprehensive solution would be better.
"I am directing the State Water Board to review the entire
program and evaluate compliance alternatives that are more
efficient and workable for all professionals."
3.Business Licensure/Continuing Education Examples. The Author raises
the following examples of the types of additional requirements that
have been placed or proposed to be placed upon licensed
professionals by state or local agencies:
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The San Joaquin Valley Air Pollution District requires
participation in a mandatory Dust Control Training Course. This
course is mandatory training for anyone who prepares and submits
a Dust Control Plan to the District. Dust Control Plans and best
management practices on construction projects already fall under
the scope of professional licensure and responsibility; such as
contractors and engineers.
The State Water Resources Control Board (SWRCB) General
Construction permit requires already licensed civil engineers,
geologists, landscape architects, hydrologists, and others to
undergo a 2-3 day training class and pass a certificate
examination in order to prepare a storm water plan. The total
cost for this program is roughly $700-$800 per person. The
training is essentially reading through the permit requirements.
The California Commission on Disability Access (CCDA) has
invited the public to provide input or comments to its Certified
Access Specialist (CASp) & Education Committee on whether
training and continuing education requirements should be enacted
for landscape architects, professional engineers and contractors
to provide these professionals with sufficient knowledge of the
state and federal disability access laws and regulations.
The California Energy Commission Lead Commissioner for Energy
Efficiency recently conducted a workshop to take public comment
on proposals received from the International Brotherhood of
Electrical Workers (IBEW) and the California Local Unions of
Sheet Metal Workers (Sheet Metal Workers). These organizations
propose that only contractors who are trained and certified by
specific certification programs should be allowed to perform the
"acceptance testing" that is required of specific equipment by
the Building Energy Efficiency Standards.
1.Related Legislation. AB 1210 (Garrick, 2011) as noted above, would
have provided that a licensed civil engineer shall not be required
to meet any additional experience, training, or certification
requirements in order to prepare a SWPPP. The bill was vetoed by
the Governor.
SB 762 (Aanestead, Chapter 16, Statutes of 2009) prohibited cities or
counties from restricting any person from performing a procedure
that falls within the scope of practice of a person licensed by the
DCA.
AB 2427 (Eng, 2008) would have made it unlawful for a city or county or
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city and county to prohibit a healing arts licensee from engaging in
any act or performing any procedure that falls within the
professionally recognized scope of practice of that licensee, but
would prohibit construing this provision to prohibit the enforcement
of a local ordinance effective prior to January 1, 2009, as
specified, or to prohibit local time, manner, or place of business
operations regulations. The bill was vetoed by the Governor.
2.Arguments in Support. Writing a joint letter in support of the bill,
18 of the organizations listed in support below argue that the bill
will help to eliminate the creation of duplicate, overlapping and
contradictory practice requirements imposed by other agencies other
than the DCA licensing bodies. Supporters argue that the current
forced "continuing education" is costly and represents a significant
regulatory excess, and imposes requirements upon California
practitioners that are not replicated in other states, making
California less business friendly as a result.
The California Landscape Contractors Association (CLCA) writes in
support that SB 975 is an important, common sense measure to clarify
that no state agency other than the board responsible for licensing
a profession should impose training, certification, or educational
requirements on a licensee as a condition of him or her practicing
the full scope of their profession or vocation. CLCA concur that
professional and occupational licensing boards should be solely and
exclusively responsible for determining the practice qualifications
of their own licensees.
3.Arguments in Opposition. The Department of Consumer Affairs opposes
this bill, stating: "The Department believes that the proposed
statutory language is simply unneeded to protect its licensing
boards and bureaus' jurisdiction and could even result in unforeseen
or unintended problems between state agencies. Further, the
Department understands that this bill was introduced following last
year's AB 1210 (Garrick, 2011), which the Governor did not sign.
The State Water Resources Control Board should be given time to
follow the direction it received in the Governor's veto message of
that bill, which may ultimately solve the problem of this bill's
sponsor without legislation."
4. Suggested Author's Amendment. This bill prohibits any state or
local agency from imposing any additional licensing requirements
upon a DCA licensee, and defines "licensing requirements" to
include "Any additional requirements" beyond those in the BPC or in
board regulations. Committee staff is concerned that this
provision may be unintentionally overly broad, and may be
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interpreted as prohibiting an agency from requiring a licensed
professional to comply with any law or requirement that is not
contained within the Business and Professions Code or within a
regulation adopted by the licensee's regulatory board.
Committee staff recommends amending the bill to instead prohibit
requiring "any additional experience or qualification requirements"
of the licensee.
Amendment
On page 3, line 36, after: "Any additional" insert: experience
or qualification
SUPPORT AND OPPOSITION:
Support:
American Council of Engineering Companies (Sponsor)
Associated General Contractors
California Business Properties Association
California Chapter of the American Fence Association
California Fence Contractors Association
California Geotechnical Engineering Association
California Land Surveyors Association
California Landscape Contractors Association
California Manufactures and Technology Association
California Metals Coalition
California Pharmacists Association
California Retailers Association
Engineering Contractors Association
Flasher Barricade Association
Marin Builders Association
National Association of Social Workers
National Federation of Independent Business
Southern California Contractors Association
State of California Auto Dismantlers Association
Opposition:
Department of Consumer Affairs
Consultant:G. V. Ayers
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